' AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioner/defendant No,4 has challenged the judgment and decree dated 02.10.2006 passed by the learned Additional District Judge, Wazirabad, whereby the appeal filed by the respondents/plaintiffs was accepted, by way of which, the judgment and decree dated 01.07.1999 passed by the learned Civil Judge 1st Class, Wazirabad District Gujranwala dismissing the suit for declaration filed by the respondents/plaintiffs were set aside and suit was decreed.
2. The brief facts of this case are that the respondents-plaintiffs oh 30.05.1993 filed a suit for declaration wherein they challenged the mutation of inheritance of Muhammad Din bearing No,1360 attested on 03.07.1991 in favour of defendants Nos.1 to 3 and also challenged mutation of sale No,1363 attested on 31.07.1991 by defendants Nos. 1 to 3 in favour of defendant No,4. Defendants Nos.1 to 3 filed conceding written statement, whereas defendant No,4 also filed written statement and contested the suit vehemently. Learned trial court framed the issues and invited the parties to produce their respective evidence. The plaintiffs and defendant No,4 produced oral as well as documentary evidence in support of their versions but defendants Nos.1 to 3 have not produced their evidence. After the completion of trial vide judgment and decree dated 01.07.1999 suit was dismissed by the learned trial court. An appeal was preferred before the learned first appellate court, which was accepted and suit was decreed. Hence, this civil revision by the petitioner/defendant No,4.
3. 1 have heard the learned counsel for the parties at full length and gone through the record, the evidence oral as well as documentary and also the findings recorded by both the courts below.
4. The claim of plaintiffs is that they are legal heirs of deceased Muhammad Din and they have been deprived of from the inheritance of deceased. They have also challenged the sale mutation No,1363 attested on 31.07.1991 by defendants Nos.1 to 3 in favour of defendant No,4/petitioner.
Defendants Nos.1 to 3 have conceded the claim of plaintiffs and their case is that they have not alienated the suit property in favour of defendant No,4/petitioner. To prove the fact that the plaintiffs are legal heirs of deceased Muhammad Din, plaintiff No,1 Naseem Akhter appeared as PW-2 and plaintiff No,2 Khalida Parveen appeared as PW-1. This oral version has not been proved by producing any cogent confidence inspiring evidence. Therefore, the oral assertion cannot be believed in the above circumstances, as the plaintiffs could not prove that the mutation of inheritance was wrongly attested, just to challenge the transfer in favour of vendee-petitioner this stance has been taken, whereas it has been claimed that Mukhtar Begum is the mother of plaintiffs but she has not been produced. Furthermore, defendants Nos.1 to 3 have alleged in the written statement that they did not transfer the suit property in favour of defendant No,4/petitioner, whereas the petitioner/defendant No,4 produced DW-1 the Record Keeper, who brought the original register of Pert-Sarkar of impugned mutation. Tehsildar Muhammad Mohsin, who attested the mutation, was produced as DW-2. The statement of DW-2 Tehsildar is specific with regard to affixing thumb impression by the vendors upon the mutation and identification by Ch. Irshad Ali Advocate and Muhammad Afzal Pattidar. This witness has not been specifically cross-examined with these points. Needless to state that a portion of statement which remains unchallenged in the cross-examination is ordinarily deems to have been admitted by the other side. Reliance can be placed upon "1990 CLC 274 (Anwar and others v. Sher Bahadur and others)". The statement of DW- 2 that the vendors admitted the receipt of consideration amount, this portion has also not been cross-examined. Further that what has not been pleaded, cannot be proved in evidence. Reliance can be placed upon "1998 SCM R 593 (Amir Shah v. Ziarat Gul)" . DW-3 is Muhammad Ramzan who is special attorney of defendant and DW-4 is Muhammad Azam, who identified the vendors before the Tehsildar. The possession of petitioner/defendant No,4 has been admitted over the suit property. However, defendants Nos.1 to 3 did not bother to produce any evidence in support of their version.
5. In a suit for declaration when fraud has been alleged, it was the duty of plaintiff to plead specifically the particulars of fraud, the circumstances in which he/she put his/her thumb impression on the mutation and the purpose as to why he/she appeared before the revenue officer. Neither the same has been pleaded in the plaint nor the satisfactory evidence has been produced upon this aspect of the case. In accordance with Order VI Rule 4 of the C.P.C. Full particulars of fraud are necessary to be mentioned in the pleadings. Reliance can be placed upon "1988 SCM R 1703 (Mst. Sahib Noor v. Haji Ahmad), 2012 CLC 1846 (Muhammad Younas v. Waris Baig and 2 others) 2007 CLC 172 (Rasheeda Begum v. Ghulam Ahmed and another) and PLD 2006 Supreme Court 15 (Mst. Nusrat Zohra v. Mst Azhra Bibi and others)".
6. I am of the view that when fraud with regard to attestation of mutation has been alleged upon the defendant with the connivance of revenue officials, impleading the revenue officials as party as defendants in the suit is necessary because fraud has been alleged against the revenue officials, till the time they are not party to the suit, how they can defend the same and further when allegation of fraud is upon the transferee of land and the revenue officials, they must be impleaded as defendants so that the parties against whom allegation has been levelled may defend the suit.
Non-impleading the revenue officials as defendants is a fatal defect.
7. Further that in accordance with Articles 91 and 92 of the Qanune-Shahadat Order, 1984 there is presumption as to document produced in evidence by the person keeping official record i.e, the original register of mutation in which the impugned mutation is available, therefore, in the light of "2003 SCM R 501 (Mst. Nur Begum and another v. Settlement and Rehabilitation Commissioner Multan and 2 others)" the presumption of truth attaches to the official record in the absence of any thing to the contrary. As I have earlier mentioned that the pleading and statement of plaintiff was not up to the mark to shift onus upon the beneficiary. Against the attested mutation in favour of vendee-defendant only oral statement of plaintiff is available. In the light of "1987 SCM R 1845 (Hazoor Bakhsh and others v. Abdul Rashid and others)" the documentary as well as oral evidence produced by the vendee-defendant cannot be brush aside. In the light of judgment of august Supreme Court of Pakistan reported as "2009 SCM R 598 (Taj Muhammad .Khan through L. Rs, and another v. Mst. Munawar Jan and 2 others)" it can be clearly stated that the plaintiffs had failed to discharge initial onus to prove misrepresentation and fraud, therefore, no question of shifting of onus upon the other side.
8. Admittedly the plaintiffs are neither the recorded owner nor in possession of suit land. Without prayer of possession their suit was defective in view of section 42 of the Specific Relief Act, 1877 and further they could not plead or state that how the possession was transferred to the vendee- defendant as the possession of vendee has been admitted. The learned first appellate court has ignored all these important facts and has reversed the well-reasoned findings recorded by the learned trial court, therefore, the findings recorded by the learned first appellate court are absolutely not only against the evidence available on the file but also against the law as well as the provision of law annunciated by this court as well as the august Supreme Court.
9. In the light of what has been discussed above, this civil revision is allowed and the impugned judgment and decree dated 02.10.2006 passed by the learned Additional District Judge, Wazirabad are set aide and that of the learned trial court are restored.