' This civil revision calls in question the legality of the judgment and decree, dated 12-5-1980 of Additional District Judge, Gujranwala. It arises in the following circumstances.
2. The petitioners claimed to be the collaterals in the fourth degree of one Naiki who owned land in India. Their case is that Naiki was killed during the disturbances in 1947. As his heirs they filed a claim in respect of the land left by him which was duly verified. In 1965 the respondents had this claim fraudulently transferred to village Mahal of Tehsil Gujranwala and on 26-6-1965, got an allotment of 362 Kanals and 11 Marlas of land in the said village against the said claim. Later, they forged a sale-deed and had the said land transferred in their favour. On these allegations the petitioners inter alia asked for a declaration to the effect that they were the heirs of Naiki and as such owners of the said land and that the sale-deed was fictitious and without consideration.
3. The suit was resisted by the respondents. Apart from raising legal objections to the competency of the suit they denied that Naiki was killed during the disturbances; on the contrary, they alleged, Naiki did migrate to Pakistan, obtained allotment against his claim and then voluntarily sold it in their favour through a registered sale-deed, dated 18-9-1965.
4. The learned trial Court found that Naiki was killed during the disturbances and as such the sale- deed allegedly executed by him in favour of the respondents was false, fictitious and illegal.
Accordingly it decreed the suit of the petitioneRs, The respondents went in appeal before the learned Additional District Judge who came to a contrary conclusion and dismissed the suit.
5. The main questions for consideration in this civil revision are whether Naiki had migrated to Pakistan and had sold the land in favour of the respondents. In support of their contention the petitioners relied entirely upon oral evidence furnished by four witnesses, one of them being Jamal Din, petitioner. They all stated that they had seen the dead body of Naiki lying on the bank of River Jamna. On their part the respondents too examined three witnesses who deposed that Naiki had got the land allotted in village Mahal and then sold it in favour of the respondents. In coming to the conclusion that Naiki had reached Pakistan the learned Additional District Judge was impressed by the testimony of Ismail (D.W.1) who was one of the plaintiffs in the suit. He also thought that the presumption of correctness attached to the sale-deed.
6. The questions whether Naiki had managed to reach Pakistan o was killed in India during the disturbances and whether he had sold his land to the respondents are of fact and ordinarily they cannot be reopened in revision jurisdiction. But then it appears to me that in recording his findings the learned Additional District Judge has ignored certain material circumstances which have a bearing on these questions. The first thing to be noticed is that Naiki himself had never filed any claim in respect of the land abandoned by him in India. The claim which was transferred to village Mahal and against which the land in dispute is allotted was in fact filed by Jamal Din petitioner.
Had Naik migrated to Pakistan and settled here it was most unlikely that h would have failed to present his own claim and left the matter to his fourth degree collaterals. It was no body's case that he was a disabled person or that he could not look after his own interests. In fact the case of the respondents was that he was a young man, well-built an of 35 years of age. His omission in this regards strongly indicates that he never reached Pakistan and lends support to the stay of the petitioners that he was killed in India. The reliance placed by the learned Additional District Judge upon the testimony of Ismail (D.W.1) was entirely misplaced for his statement in Court ran counter to the allegations made by him in the plaint upon which he had put his thumb-impression. His explanation that he had merely signed a blank paper is entirely unworthy of credit. He was quite clearly a turn-coat and the learned Additional District Judge gravely erred in using his testimony for non-suiting the petitioneRs,
7. The learned Additional District Judge had also no satisfactory material before him for coming to the conclusion that the person who executed the sale-deed in favour of the respondents was in fact Naiki. The witnesses produced by them in this regard could not be in a position to identify him.
It was nobody's case that Naiki was a resident of village Mahal. Ghulam Dastgir (D.W.4), respondent, met him for the first time on the day the transaction of sale was agreed upon. Maulvi Zulfiqar (D.W.3) who is an attesting witness of the sale-deed was a resident of Sahookay and it was not alleged by him that Naiki had any links in that village. Quite obviously this witness also did not know him. Muhammad Rafique (D.W.2) claimed that Naiki used to come and stay with him. He did not care to explain what particular relations he had with Naiki. In fact he did not even know where Naiki had taken residence after migration to Pakistan. He could hardly be relied upon to fix the identity of Naiki. In fact his description of Naiki differed from the one given by Maulvi Zulfiqar (D.W.3) for according to him Naiki was very fat whereas Maulvi Zulfiqar (D.W.3) stated that he was merely stocky. The person who had identified the executant of the sale-deed before the Sub-Registrar was one Muhammad Ibrahim. He was dead at the time when the trial started. However, that may be there is nothing on the record to show that Muhammad Ibrahim was personally acquainted with Naiki or was in a position to identify him. Although Maulvi Zulfiqar (D.W.3) did say that Naiki used to reside with Muhammad Ibrahim, but then Muhammad Rafique (D.W.2) made that claim for himself.
It can, therefore, hardly be said with any measure of certainty that it was in fact Naiki who had sold the land to the respondents. Thus, the presumption of correctness to which the learned Additional District Judge has referred cannot in any event be invoked here. I should, therefore, think that there was no basis upon which the learned Additional District Judge should have interfered with the findings of the learned trial Court on issue No, 2.
8. For the reasons stated above I set aside the judgment and decree of the learned Additional District Judge and restore those of the trial Court. The parties shall bear their own costs throughout.