AMIN-UD-DIN KHAN, J. Through this civil revision the petitioner has challenged the judgment & decree dated 04.11.2016 passed by the learned Additional District Judge, Sialkot whereby the appeal filed by the plaintiff/respondent No.3 was accepted and the judgment & decree dated 29.11.2012 passed by the learned Civil Judge 1 Class, Sialkot dismissing the suit, were reversed.
2. The brief facts are that the plaintiff/respondent No.3 filed a suit for declaration on 14.10.2004 to challenge mutation No.2314 by Muhammad Akhtar in favour of his mother Mst. Resham Bibi attested on 28.09.1995 and mutation No.2315 by Mst. Resham Bibi in favour of her daughter Mst. Shamim Akhtar attested on 28.09.1995. The written statement was filed and the suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial suit was dismissed by the learned trial court vide judgment & decree dated 29.11.2012. An appeal against the judgment & decree was preferred before the learned first appellate court, which was accepted vide judgment & decree dated 04.11.2016. Hence, this civil revision by the petitioner/donee- defendant No.2.
3. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
4. The facts as narrated by the learned counsel for the parties are that originally Feroz Din was the owner of 85- marlas of land, at the time of death his widow Mst. Resham Bibi, one son Muhammad Akhtar and three daughters Mst. Shamim Akhtar, Mumtaz Begum and Asmat Parveen inherited him. Mst. Resham Bibi was given 10-marlas, Muhammad Akhtar 30 marlas and each daughter 15-marlas of land. The case of petitioner/donee is that Muhammad Akhtar transferred 30-marlas land owned by him to his mother Resham Bibi through oral gift mutation No.2314 attested on 28.09.1995. Through mutation No.2315 Mst. Resham Bibi gifted 2-kanals land in favour of Mst. Shamim Akhtar, the land which she received from her son Muhammad Akhtar through mutation No.2314st measuring 30 marlas and her inherited property 10-marlas. It is pleaded that Muhammad Akhtar died issueless in the year 1998 and Mst. Resham Bibi died in the year 1997. The suit was filed on 14.10.2004.
5. Learned counsel for the petitioner/defendant argues that the appeal before the learned first appellate court was barred by 47 days.
When confronted with the learned counsel for the petitioner that whether he can substantiate his contention that the appeal was barred by time, from the record which he appended with this civil revision; prays for requisition of the record of learned appellate court.
By perusal of the record appended with this civil revision the contention that the appeal was filed before the learned first appellate court with a delay of 47 days is not borne out. Since the arguments have been heard, therefore, the court does not think it proper to requisition the record of learned appellate court. This assertion of learned counsel for the petitioner is repelled due to the fact that no substance is available on the file.
6. Learned counsel for respondent No.3 has argued the point that he produced a copy of application as Exh.P-7 filed before the Tehsildar for issuance of copy of Roznamcha Waqiati, on the basis of which the mutation was entered. The copy of said application has not been appended with this civil revision, therefore, the civil revision is defective one. I have noticed that Liaquat Ali was produced by the plaintif f herself as PW-1, who stated that record of Roznamcha Waqiati from 19.07.1995 to 30.08.1995 is missing. In this view of the matter , non-appending the copy of application moved before the Tehsildar taken in evidence as Exh.P-7 is not fatal one to dismiss the revision on this score only .
7. The contention of learned counsel for respondent No.3 that in matter of inheritance there is no limitation. I do not agree with this argument advanced by the learned counsel for respondent No.3. First, it is not a case of inheritance and secondly , even in matters of inheritance the contention that limitation is to be ignored is not a valid contention in the light of law laid down by the august Supreme Court of Pakistan reported as "Muhammad Islam versus Inspector General of Police, Islamabad and others " (2011 SCMR 8), "Farman Ali versus Muhammad Ishaq and others " (PLD 2013 Supreme Court 392), "Mst. GRANA through Legal Heirs and others versus SAHIB KAMALA BIBI and others " (PLD 2014 Supreme Court 167), "Agha Syed MUSHT AQUE ALI SHAH versus Mst. BIBI GUL JAN and others " (2016 SCMR 910), "NOOR DIN and another versus ADDITION AL DISTRICT JUDGE, LAHORE and others " (2014 SCMR 513), "COMMISSIONER OF INCOME TAX, COMP ANIES ZONE-IV , KARACHI versus HAKIM ALI ZARDARI " (2006 SCMR 170), "ATTA MUHAMMAD versus MAULA BAKHSH and others " (2007 SCMR 1446 ) and "Hakim MUHAMMAD BUTA AND ANOTHER versus HABIB AHMAD and others " (PLD 1985 Supreme Court 153). Further the plaintif f opted not to appea r in person in the witness box, rather she appointed one attorney for filing of suit and at the time of making the statement before the court another attorney was appointed, who appeared in the witness box as attorney of plaintif f. She is the perm anent resident of U.S.A. which shows the gravity of interest of the plaintif f in litigation.
8. It is a case where third party has challenged two mutations, one mutation by Muhammad Akhtar issueless son in favour of his mother Mst. Resham Bibi and second mutation by the mother who transferred the whole of her property in favour of her one daughter . Admittedly there were two other daughters, one of whom is the plaintif f, who is permanent resident of United States of America. The fraud was alleged in the plaint on the ground that husband of the petitioner/defendant was a retired Patwari. Needless to observe that for pleading and proving fraud it was the responsibility of the plaintif f/respondent No.3 to plead and prove fraud on the basis of standard set out through the law declared by the august Supreme Court of Pakistan as well as this Court reported as "Mst. SAHIB NOOR versus HAJI AHMAD" (1988 SCMR 1703 ), "MUHAMMAD YOUNAS versus WARIS BAIG and 2 others" (2012 CLC 1846 ) and "RASHEEDA BEGUM versus GHULAM AHMED and another" (2007 CLC 172 ).
9. I am of the considered view that when third party challenges the validity of a mutation, the standard for proving its contention is different from the case where a party challenges the alleged trans fer deed or oral mutation by that party in favour of the defendant. In that eventuality , the principle of shifting of onus is applicable and only a statement on oath before the court by the plaintif f is sufficient, whereas when third party challenges the validity of mutation between two other parties, third party is required to plead and prove the fraud with full details. Nothing of this sort is available in the instant case. Only pleading that husband of the donee/petitioner was a retired Patwari is not sufficient to hold the transactions as invalid. When the donors remained alive two and three years after the impugned mutations and when attorney of the plaintif f Munawar Hussain appeared as PW-2 and stated in his examination in chief, which was recorded on 30.06.201 1 that:- {{URDU TEXT}} This admission of the attorney of plaintiff clearly makes the plaint barred by time, which was filed on 14.10.2004 to challenge the gift mutations attested on 28.09.1995.
10. In this view of the matter , the judgment passed by the learned first appellate court while recording the findings on issues No.2, 3 and 4 by ignoring the legal position (supra) is not sustainable under the law. The findings of learned trial court are well reasoned and are in accordance with law. Therefore, the findings of learned first appellate court are declared to be nullity in the eye of law and as such not sustainable. Resultantly , this civil revision is allowed and the impugned judgment & decree dated 04.11.2016 passed by the learned first appellate court are set-aside, whereas the judgment & decree dated 29.11.2012 passed by the learned trial court dismissing the suit filed by the plaintif f/respondent No.3 shall remain in the field.