1. Through instant revision petition, petitioner has challenged judgments and decrees dated 23.05.2009 and 15.04.2010, passed by learned Civil Judge and learned Additional District Judge, Fort Abbas, respectively, whereby their suit for declaration along with permanent injunction filed by petitioner was concurrently dismissed.
2. 2.Brief facts of the case are that petitioner instituted a suit for declaration along with permanent injunction against respondents assailing veracity and genuineness of oral mutation of Tamleek No, 187 dated 21.06.1993 alleging therein that said mutation was got entered and attested by Respondents No, 1 to 3 in connivance with officials of revenue department with intent to deprive petitioner to inherit his share in the suit property. The suit was contested by respondents by filing written statement and out of divergent pleadings of the parties, issues were framed. After recording evidence of the parties and hearing arguments of learned counsel for the parties, learned trial Court proceeded to dismiss the suit filed by petitioner, vide judgment and decree dated 23.05.2009. Feeling aggrieved petitioner filed appeal before learned appellate Court, which was also dismissed vide judgment and decree dated 15.04.2010. Hence, instant revision petition.
3. 3.Learned counsel for petitioner submits that impugned judgments and decrees are the result of mis-reading and non-reading of material/evidence brought on record. He adds that learned Courts below have not appreciated the facts of the case. He further submits that Respondents No, 1 to 3, being beneficiaries of disputed mutation, were under legal duty to prove the same but they miserably failed to discharge the onus and learned Courts below have wrongly dismissed the suit filed by petitioner. He has placed reliance on Ahsan Kausar and others u. Ahmad Zaman Khan (1986 SCMR 1799), Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135), Muhammad Boota v. Mst. Rashidan Bibi and others (2008 SCMR 343), Abdul Sattar and others v.
4. Muhammad Ashraf and others (2008 SCMR 1318), Ghulam Rasool through L.Rs, and others v.
5. Muhammad Hussain and others (PLD 2011 Supreme Court 119), Khaliqdad Khan and others v. Mst.
6. Zeenat Khatoon etc. (2011 PSC 276), Atta Muhammad and others v. Muhammad Afzal (2013 PSC 696), Misri Khan and 48 others v. Gul Muhammad and 51 others (K.L.R. 2013 Supreme Court 217), Rab Nawaz and others v: Ghulam Rasul (2014 SCMR 1181), Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212), Baja (deceased) through his L.Rs, etc, v. Mst.
7. Bakhan & others (PLJ 2015 SC 909), Mst. Saadia v. Mst. Gul Bibi (2016 SCMR 662), Islam-ud-Din through L. Rs and others v. Mst. Noor Jahan through LRs and others (2016 SCMR 986), Phul Peer Shah v. Hafeez Fatima (2016 P.S.C. 999), Mst. Manzoor Begum (deceased through Legal Heirs) v. Mst.
8. Fateh Bibi and others (2016 SCMR 1596), Muhammad Anwar Tipu v. Pakistan Railways through Chairman, Railways Board Headquarters Offices, Islamabad and another (1987 CLC 2103), Ilyas and 4 others v. Jan Muhammad (1992 CLC 351), Mst. Ishrat Bibi v. Mst. Hashmat Bibi and others (2013 CLC 499), Abdul Haq, etc. v. Iftikhar Ahmad etc, (KLR 2015 Civil Cases 413), Raja Lal Khan v. Raja Muhammad Aslam and 2 others (2015 CLC 727) and Abdul Majeed, etc. v. Mst. Shah Bibi, etc. (2016 CLJ 13).
9. 4.On the other hand, learned counsel for respondents defends impugned judgments and decrees and submits that petitioner has failed to point out any illegality or material irregularity in the same, therefore, decisions rendered by learned Courts below are liable to be upheld.
10. 5.Arguments heard, Available record perused.
11. 6.The operative part of impugned judgment dated 15.04.2010, reads as under: "17. No specific date of death of predecessor of parties is given in plaint, but it has been submitted in plaint of suit referred above that predecessor of parties passed away round about in year 1993 and respondents submitted date of death of their predecessor as 24.05.1997. Plaintiff/PW-1 stated that his father passed away in year 1997. Admittedly, impugned mutation was attested in life time of predecessor of parties 04 years prior to his death. Predecessor of parties never challenged impugned mutation in his life time. None of the other legal heirs has appeared and deposed to support vorsion of appellants regarding impugned mutation or any of the delivery of share of produce after death of deceased predecessor of parties.
18. Alleged fraud with regard to impugned mutation is alleged by appellant and it was incumbent upon appellants to discharge initial burden of proof that impugned mutation was outcome of fraud, forgery, fabrication, deception, conclusiveness etc. But, mere oral stance of appellants, which is otherwise found shaky and contradictory in between lines of plaint in itself as well as in their evidence, is quite insufficient to bring home proof of the alleged allegations leveled against impugned mutation. Moroover, in light of settled principle of law, oral assertion cannot be given weight as against the documentary evidence, which is otherwise supported and proved through supportive accost of the witnesses related thereto preparation of same as well as sufficient to out rightly exclude the rival oral account. In light of all above discussed circumstances, finding of learned trial Court in issue in hand is also upheld."
12. 7.Perusal of record reveals that in presence of respectable of the locality, deceased predecessor of the parties alienated the suit property in favour of Respondents No, 1 to 3 through impugned Tamleek. Predecessor of parties himself got entered Rapt No, 234 dated 25.05.1993, where after appeared before Revenue Officer in presence of witnesses and got attested impugned mutation of Tamleek No, 187 as well as Rapt No, 234. DW-2, the then Tehsildar stated that impugned mutation of Tamleek was presented by Patwari before him in open ceremony on 25.05.1993 in presence of official witnesses. He further deposed that predecessor of parties namely, Ghulam Qasim Khan himself appeared at the relevant time, made statement regarding transfer of suit land in favour of his sons and his thumb impression was also obtained upon impugned mutation. DWs-4 to 6 also supported the statement of DW-2.
13. 8.Petitioner, While appearing as PW-1, in his cross-examination himself admitted that possession of suit land was with Respondents No, 1 to 3 in life time of predecessor of parties. He deposed that share of produce had not been given to him for last about 4/5 years. It is also evident from the record that neither predecessor of parties assailed the impugned mutation during his life time nor other legal heirs except petitioner had appeared and supported version of petitioner.
14. 9.Findings recorded by the learned Courts below were analyzed on the basis of evidence brought on record, which were found to be in consonance with both oral as well as documentary evidence led by the parties. Petitioner has failed to point out any illegality or legal infirmity in the impugned judgments, which have been passed on the basis of proper appraisal of evidence brought on record. Even otherwise, concurrent findings of the learned Courts below cannot be interfered with in routine, while exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908, unless there is any jurisdictional defect or gross illegality occurred therein.
10. Power to be exercised under Section 115 of the Code of Civil Procedure, 1908, should not be considered analogous to the powers exercised in appeal. While exercising revisional jurisdiction, High Court should satisfy itself upon three matters; firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice. Learned counsel for petitioner has failed to bring his case within four corners of said exceptions of law, which are sine qua non for exercising revisional jurisdiction.
15. 11.Learned counsel for petitioner has failed to point out any illegality or legal infirmity in the impugned judgments and decrees. So far as the argument that beneficiary has to prove the transaction in its favour, is concerned, suffice it to say that evidence brought on record sufficiently proved execution of oral Tamleek in accordance with law. The case law cited by learned counsel for petitioner is on distinguishable facts and circumstances and does not attract the present case.
16. 12.Reluctantly, instant revision petition, being devoid of merits, is hereby dismissed.