AMIN-UD-DIN KHAN, J. Through this Civil Appeal filed, under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, the Appellants have challenged the judgment dated 18.09.2018, passed by the learned Lahore High Court, whereby Civil Revis ion bearing No. 736 of 2015, filed by the Plaintif fs/Respondents, was accepted.
2. In the Suit for Declaration, filed by the Plaintif fs/Respondents, the learned Trial Court granted a decree for declaration of title on 07.11.2012. In appeal, the findings of the learned Trial Court, were reversed by the learned Additional District Judge, Hafizabad, vide judgment dated 27.01.2915. The Plaintif fs/Respondents dissatisfied by the judgment and decree of the learned Appellate Court, filed a Civil Revision bearing No.736 of 2015, which was allowed by the learned Lahore High Court, Lahore, vide impugned judgment dated 18.09.2018. The judgment and decree dated 27.01.2015, passed by the learned Appellate Court, were set aside and that of the learned Trial Court were restored, hence, the instant Civil Appeal.
3. The Plaintif fs/Respondents on 29.09.2009 by filing a Suit, challenged the mutation of Hiba No.588 attested on 23.06.1999 by Fateh Muhammad in favou r of his minor son Sikandar Hayat Defendant No.l. Plaintif fs/Respondents Nos.1 to 3, are the daughters of Fateh Muhammad, whereas Plaintif fs/Respondents Nos.4 to 7 are the legal heirs of Mst. Mussarat Bibi the deceased daughter of Fateh Muhammad. Whereas Defendant No.2 is the mother of Defendant No 1 and the second wife of Fateh Muhammad, whereas the mother of Plaintif fs/Respondents Nos.1 to 3 was Said Bibi. The grounds pleaded for challenging the validity of the mutation are that Fateh Muhammad at the time of attestation of said mutation was of an advanced age. Ten years before his death, he was not in his senses and he was residing with the Appellants/Defendants; and therefore, was in their influence. He was unable to recognize anyone and hard of hearing. It is pleaded that Defendant No.1 with the connivance of the revenue staff, got attested mutation of Hiba in his favour . It is further pleaded that Fateh Muhammad never appeared before the Revenue Officer for getting the mutation entered and attested. Fateh Muhammad died on 30.05.2007. It is also pleaded that the Plaintif fs came to know about the attestation of the mutation six months before the filing of the Suit.
4. We have heard the learned counsel for the parties at length and with their able assistance have gone through the available record as well as the case law .
5. We ale clear in our mind that when it is pleaded in a Suit that with the connivance of the revenue officials any mutation was got attested and the same is challenged through the Civil Suit, the Province of the Punjab as well as the revenue officials against whom the connivance for attestation of the mutation is alleged, are the necessary party in said Suit. The reason is that when anyone alleges a connivance of the said officials of Revenue Department with the Defendants of the Suit for getting a mutation attested, without participation of the said party , no valid adjudication can be carried out against the said party and no finding can be recorded against them in their absence of connivance with the Defendants.
6. In case in hand, the Plaintif fs/Respondents are the third party for the purpos es of challenging a transaction between the two parties. i.e. the father in favour of his minor son, as admitted by the Plaintif fs' witness Muhammad Yaqoob DW-3, that at the time of attestation of the mutation Sikandar Hayat (Defendant No.1) was of 5-6 years of age. This portion of statement was not cross-examined or disputed by the Plaintif fs. Needless to observe that on material portion of a statement of a witnes s if not cross-examined, it is presumed that the other party has accepted that part/ portion of statement.
7. Further , one of the Plaintif fs Mst. Surrya Bibi, appeared as her own witness as PW-1 and made a general statement without specifically substantiati ng the case pleaded by the Plaintif fs in their plaint. The main focus of PW- 1 Mst. Surrya Bibi, was that through fraud, Sikandar Hayat got the mutation attest ed in his favour , whereas it is in the evidence that he was of about 6 years of age at that time. We are perplexed as to what fraud can be expected from the said child with the connivance of the revenue officials. There is nothing on record to suggest as to why the revenue officials as well as the witnesses of impugned mutation were party to the fraud, who identified the donor at the time of attestation of mutation, the Lambardar and the Pattaydar , etc.
8. We have gone through the judgment of this Court cited by the learned counsel for the Respondents reported as Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others (2018 SCMR 30). We are afraid that the facts of the said case are absolutely different from this case. In the cited case, the Plaintiff challenged the validity of transaction, which was on the basis of some Power of Attorney on her behalf in favour of her brother , therefore, the case law cited is neither applicable to the facts of this case nor helpful for the Respondents. So far as the case law cited by the learned counsel reported as Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others (2016 SCMR 1417 ) is concerned, it pertains to limitation for filing a claim on the basis of inheritance. We agree with the view taken by this Court in the cited case but essentially , the Plaintif fs have to prove the intervening transaction to be a nullity in the eyes of law and that the property was in the ownership of propositus and the property is inheritable. In other words, the Plaintif fs have to prove that the propositus was the owner of the Suit property at the time of his death and they are entitled for inheritance. If the Plaintif fs are able to prove this fact then the benefit regarding limitation decided by this Court in the judgment supra is helpful and beneficial for the Plaintif fs and not otherwise. We are of the considered view that the principle as laid down in the said judgment with regard to limitation is on the basis that at the time of the death of propositus, every legal heir becomes a joint owner in the property left by the propositus, and if any of the legal heirs wants to, claim his independent right on the basis of limitation or otherwise, he has to prove clear and specific ouster of the other legal heirs from the property left by the deceased in the light of the earlier judgments passed by this. Court. In case in hand, when Plaintif fs miserably failed to show any defect in the attestatio n of the mutation, no question of shifting of onus of proof arises. Further this case is of an exceptional stance since the Defendant/ Donee was not required in this case to independently prove the offer, acceptance and delivery of possession when he was admittedly a minor at the time of attestation of mutation in his favour by his father . The facts of the case in hand are slightly different from the case law cited above as the donee is a minor son of the dono r. The pleadings with regard to fraudulent attestation of the mutation are proved to be false or alternatively , the Plaintiffs have miserably failed to prove the case pleaded by them. Even one of the Plaintif fs when appeared in the witness box as PW-1 stated that she does not know how the mutation was attested, whereas the Defendants fully proved the valid attestation of mutation by producing voluminous oral evidence, including the Record Keeper and the Revenue Officials, who entered the mutation and attested the mutation. The attesting witnesses of the mutation and the Patwari, who entered the mutation, also appeared.
Muhammad Aslam was the person who accepted the offer of Hiba, appeared as DW-7. This fact was endorsed by DW-3 Muhammad Yaqoob, DW-4 Muhammad Nawaz and DW-5 Nasir Zia (Patwari ). The Plaintif fs challenged the attestation of mutation, which was subsequently incorporated in the Revenue Record by a father in favour of his minor son. The principle of regularity available under Article 129(e) of the Qanun-e-Shahadat Order , 1984, is attached to the impugned mutation as the same was entered and attested by the officials in performance of their regular duty. Though, the same is rebuttable but the Plaintif fs absolutely failed to rebut the presumption attached to the impugned mutation therefore the Plain tiffs failed to prove the fact that the suit property was in the ownership of their propositus, therefore, it is not a case of dispute of inheritance, therefore, case law cited by them is not helpful to them, their suit was barred by time.
9. In view of the above, the judgment dated 18.09.2018, passed by the learned Lahore High Court is not sustainable under the law and the same is set aside. The judgment and decree dated 27.01.2015 of the learned Appellate Court will hold the field.
10. Consequently , the instant Civil Appeal is allowed. No order as to cost.