' This revision petition has been filed by the defendants in a suit filed by the respondent/plaintiff challenging the legality of mutation of sale No.6100 sanctioned on 15-11-1974 and is directed against judgment and decree dated 25-9-1988 passed by learned lower appellate Court whereby the appeal filed by the petitioners against judgment and decree, dated 26-10-1986 passed by learned trial Court decreeing the suit of the respondent has been dismissed.
2. Through impugned Mutation No.6100 sanctioned by Revenue Officer on 15-11-1974 the land in dispute measuring 445 Kanals 2 Marlas was shown to have been sold by respondent/plaintiff who was its owner to the present petitioners. The respondent filed suit in which he challenged the legality of said mutation and denied the sale of the land having been made by him. Petitioner No.1 Sultan Khan contested the suit whereas petitioner No.2 filed conceding written-statement.
3. The plaintiff examined Anar Gul as P.W.1, Khair Muhammad son of Sher Muhammad as P.W.2, Wali Khan Lambardar as P.W.3, Muhammad Hussain son of Haji Muhammad Ramzan as P.W.4 and the plaintiff examined himself as his own witness as P.W.5.
4. The documentary evidence produced by the respondent/plaintiff consists of decree-sheet Ext.
P.1, copy of mutation Ext. P.2, copy of Khasra Girdawari Exts. P.3 and P.4, copy of mutation Ext.P.5, copy of birth certificate of Muhammad Islam son of plaintiff Ext.P.6, copy of birth certificate of Muhammad Javaid son of plaintiff Ext.P.7 and copy of birth certificate of Muhammad Rafiq the third son of the plaintiff as Ext. P.8.
5. On the other hand the present petitioners examined Haq Nawaz as D.W.1, Abdur Rashid as D.W.2, Meena Gul as D.W.3, Muhammad Hussain Patwari as D.W.4 and Sultan Khan petitioner Nod appeared as his own witness as D.W.5. The petitioner also produced documentary evidence such as copies of mutations from Exts. D.1 to D.4.
6. After elaborate and careful appraisal of evidence, both the Courts below have recorded concurrent finding of fact that the sale of land by the plaintiff in favour of the petitioners, passing of consideration had not been established therefore, the suit was decreed by the learned trial Court through judgment and decree, dated 26-10-1986 which was upheld by the learned lower appellate Court through impugned judgment and decree, dated 25-9-1988.
7. I have been taken through the evidence produced by the parties. Anar Gul P.W.1 was the tenant over the suit land according to whose evidence he had been paying Battai to the plaintiff which was being received on his behalf by his attorney Khair Muhammad. According to his evidence the plaintiff left the town of Kalabagh as a result of political friction. He categorically denied that he had been paying Battai to the present petitioners. Khair Muhammad P.W.2 who was attorney of the plaintiff and had been receiving Battai in his evidence supported the plaintiff by deposing that he left the town of Kalabagh 7/8 years ago and in his absence he has been receiving the Battai and looking after the property. This witness is closely related to petitioner No.2 who is his son-in-law.
Petitioner No.2 filed conceding written-statement. Wali Khan Sarbrah Lambardar of Kacha Banghi Khel deposed that no mutation was attested for the transfer of the land by way of sale in favour of the petitioners in his presence. According to evidence of Muhammad Hussain P.W.4 the impugned mutation was sanctioned during the absence of the plaintiff from the village.
8. On the other hand, the witnesses of the petitioners deposed that the mutation was sanctioned in favour of the petitioners in the presence of the plaintiff. The two Courts below held that the petitioners failed to prove the factum of sale. A finding was recorded by the learned trial Court that the petitioners in collusion with the revenue staff fraudulently got the impugned mutation sanctioned.
9. Learned counsel for the petitioners argued that from mutation Exts.D.1 to D.4 the first two of which were sanctioned on 15-11-1974 and the later two on 31-12-1974. It is fully established that the plaintiff was telling a lie. I am afraid, the submission is without any substance. Ext. D.1 is a mutation through which the land was redeemed from Abdur Rehman father of the plaintiff by one Meena Gul. Ext.D.2 is the mutation in dispute. Through Ext.D.3 one Ghanum Gul redeemed the land from Abdur Rehman father of the plaintiff whereas Ext.D.4 shows that one Zar Din sold the land to one Fateh Din who was identified by Sakhi Lambardar. It was not proved by independent evidence that Abdur Rehman father of the plaintiff was in fact present on the said dates as entries in the mutation do not carry any weight unless proved otherwise. Even otherwise, these mutations do not advance the case of the petitioners.
10. The concurrent finding of fact recorded by both the Courts below is based on evidence produced on the record which has not been shown to have been misread, misconstrued or that any material piece of evidence has been kept out of consideration. After going through the evidence produced by the parties through which I was taken by learned counsel for the petitioners I fully endorse the finding of fact recorded by both the Courts below as I am not persuaded to agree with the learned counsel for the petitioners that it was a case where the sale of the land by the plaintiff in favour of the petitioners was established.
11. Learned counsel for the petitioners argued that since the sale of land in favour of the petitioners had been incorporated in the Jamabandi therefore, presumption of truth was attached to the same. Even if it be so, the said presumption being a rebuttable presumption has been successfully rebutted by the plaintiff by producing cogent evidence. The sale of land itself having not been established, the entries made on the basis of the same, may be in the Jamabandi, are of no legal effect and cannot be sustained.
12. Learned counsel for the petitioners submitted that the suit was barred by time and the finding recorded by the two Courts below on Issue No.1 are not sustainable.
13. It has been concurrently held by the two Courts below which finding has been upheld by me that in spite of sanction of mutation, the respondent/plaintiff had been receiving Battai from the tenant who was occupying the land under the respondent as such even the possession did not change hands and the petitioners/defendants never occupied the land. This being so, the suit could not be held as barred by time as in such a case the plaintiff was not required to file the suit till such time his rights were put under threats by the petitioners. The findings recorded by both the Courts below under Issue No.1 are correct and do not suffer from any illegality.
14. The two Courts below have not committed any material irregularity and illegality in passing the impugned judgments in exercise of jurisdiction vested in them under the law. No case has been made out for interference under section 115, C.P.C. The revision petition fails which is hereby dismissed with no order as to costs.