' This revision is directed against the judgment dated 28-4-1971 by Civil Judge, Larkana decreeing the suit for declaration filed by Karim Bux and others against Mst. Qaim Khatoon in respect of lands left by Muhammad Siddik and the judgment and decree dated 28-5-1975 in C.A. 43/71 by the 1st Addl. District Judge, Larkana dismissing the appeal of Mst. Qaim Khatoon and otheRs, The respondent had filed a suit for declaration that they were entitled to the land left by one Muhammad Siddik in different survey numbers mentioned in the plaint and that Muhammad Siddik died 30 years before filing of the suit in 1967 and that after the death of Muhammad Siddik the property was got mutated in the name of Muhammad Bux son of Suleman son of Muhammad Siddik in 1950. The defendants had fraudulently got the same mutated in their names but a private reconciliation had taken place through Raees Farid Jatoi and property was privately partitioned and it remained in possession of the plaintiffs since then but no mutation was alleged to have been effected. The defendants had contended that Survey No, 69 did not belong to Muhammad Siddik and that rest of the lands admittedly belongs to Muhammad Siddik. Further averment was that Mst. Arbab Khatoon, wife of Karim Bux was not the daughter of Muhammad Siddik. It was further averred that Siddik had another wife Mst. Sharifan who had relinquished her rights in favour of Muhammad Box.
2. A number of issues were framed out of which issue No, 2 was as to the heirs by Muhammad Siddik and issue No, 6 whether the defendants fraudulently got the record of rights mutated in their favour and issue No, 10 whether the plaintiffs and before them Mst. Arbab have remained in exclusive possession of survey numbers shown in para. 10 of the plaint and exercising all the rights of ownership over it. The judgments of the two Courts below are concurrent on all the issues. It was held by them that Arbab Khatoon was one of the heirs of Muhammad Siddik and that the defendants had fraudulently got the record of rights in their favour and that the heirs left by Muhammad Siddik had been in joint possession of the property left by Muhammad Siddik and there was no evidence of exclusion of any one of them and therefore, it was held that the plaintiffs have not remained in exclusive possession of survey numbers shown in para. 10 of the plaint.
Consequently it was decreed that the plaintiffs as heirs of Mst. Arbab Khatoon are the owners of the share which she had inherited from her father Muhammad Siddik. To that extent the suit for declaration and injunction was decreed and the other side was restrained from disturbing their joint possession of the share which Arbab Khatoon had inherited from her father.
3. The appellate Court had completely concurred in the findings of the Lower Court.
4.In this revision application Mr. Naraindas has submitted that the plaintiffs/respondents having alleged fraudulent mutation in 1950-51 their suit in 1967 in respect of fraudulent mutation was barred. This point in respect of bar on fraud was neither raised before the trial Court in the written statement nor it was raised before the appellate Court but counsel submitted that in view of AIR 1932 Privy Council 118 a question of law can be raised for the first time even in the Court of last resort if it can be decided on the basis of evidence and documents on record. He also relied upon PLD 1971 SC 762 (766) where it was held that a suit filed in 1962 to challenge the order of mutation effected in 1953 was time-barred under Article 120 of the Limitation Act and that time taken in prosecuting time-barred appeal could not be excluded. Issue No, 6 is about mutation record having been changed by fraud by the heirs of Muhammad Bux and the two Courts below had held that the mutation of record was effected by fraud. But it was also stated in para. 8 of the plaint as well as in the deposition of Karim Bux that Raees Fareed Jatoi had got the land partitioned and that the plaintiffs had been in exclusive possession of the partitioned land and thus they had been in adverse possession of land for a long time but that was not decided in their favour. In the prayer clause the plaintiffs had only prayed for a declaration that they were owners of certain agricultural land and had sought for an injunction. The decree does not appear to have given them at declaration and only a declaration in respect of joint ownership of land had been given. Since there is no declaration given in the decree about mutation of record and no declaration had even been sought in respect of that mutation, therefore, the plea about limitation in respect of mutation is of no consequence in this case.
5.Mr. Naraindas then contended that the finding in respect of Arbab Khatoon being the daughter of Muhammad Siddik was based on misreading of record. However, he was not able to show any misreading of record and only pointed out that Exh. 65 had not been correctly construed by the lower Courts. Exh. 65 appears to be a document executed on 28-7-1938 by Mst. Bachal at the time of marriage of Hidayat Khatoon with Mir Muhammad and Mst. Bachal, who is 70 years old and is admittedly the wife of Siddik, had been cross-examined in this case and she has stated that she has got two daughters Mst. Hidayat and Mst. Arbab from Muhammad Siddik and that her signature on Exh. 65 had been forcibly taken by one Mir Muhammad. She was forced to do so for the purpose of getting her daughter Mst. Hidayat married to Mir Muhammad. In view of the statement of Mst.
Bachal the two lower Courts below could have ignored the effect of Exh. 65 where it was declared that Mst. Bachal had only one 'laughter Mst. Hidayat Khatoon. In respect of Mst. Arbab Khatoon being a daughter of Muhammad Siddik there are four other documents Exhs. 53,154,' 55 and 56 which show that both Mst. Hidayat Khatoon and Arbab Khatoon were the daughters of Muhammad Siddik. Of course, these documents do not appear to be very authentic in respect of other details as they show that dates of birth of these two girls as 1938 and 1940 while the deceased Muhammad Siddik appears to have died in 1938, but those are old documents from public record and they could be considered as corroborating the statement of Mst. Bachal. In any case the most important evidence in this respect was of Mst. Bachal that could have been relied upon by the two Courts below as Mst. Bachal was the wife of Muhammad Siddik and she had no reason to unnecessarily include Mst. Arbab, as her daughter, if she was not really so. Since she has given a reason of being forced to execute Exh. 65 and she was not further cross-examined on that aspect of the case, therefore, her oral deposition could be referred and the document Exh. 65 that she was forced to execute could be disbelieved.
6.In these circumstances this Revision Application is hereby dismissed. Mr. S.M. Abbas has not pressed the contempt applications No, C.M.A. 31 and 265 of 1980 which are, therefore, dismissed as withdrawn.