Through the present revision petition the plaintiff-petitioners (hereinafter called as the petitioners) have questioned the judgment and decree of the learned Appellate Court whereby on acceptance of the appeal, the judgment and decree of the learned trial Court was set aside and the suit of the petitioners was dismissed.
2. The facts relevant for the disposal of this revision petition are that the petitioners sued the defendant-respondents (hereinafter called as the respondents) for declaration to the effect that the petitioners and respondents 2 to 9 were owners in possession of 4/11 shares out of the area of 50 Kanals in Khata No. 83 and Mutation No. 317, dated 10-5-1983 was illegal, based on fraud, ineffective upon the rights of the petitioners and liable to be cancelled; that Allah Dewaya, predecessor-in-interest of the petitioners and respondents 1 to 9 was the owner of the suit land, who died one year prior to the suit and the petitioners and respondents Nos. 1 to 9 being L.Rs. Were the owners of the suit land to the extent of their respective `shari' shares; that some four months prior to the suit the petitioners had got knowledge that respondent No: 1 in collusion with the revenue authorities got attested Mutation No. 317 dated 10-5-1983 in his favour showing that the predecessor-in-interest of the petitioners had sold away the suit property to him; that their predecessor-in---interest had neither sold away the suit property nor received any sale consideration from respondent No, 1; that respondent No. 1 taking advantages of old age and illness of their father collusively got attested the mutation in his favour which was illegal and ineffective upon their rights; that respondent No. 1 was asked to cancel the mutation but in vain, hence the present suit. Karim Bakhsh respondent No. 10 was impleaded as defendant No. 10 as he had pre-empted the said mutation and obtained a decree of certain portion of the suit property, and this impleadment was by an amended plaint.
3. The defendants were summoned who contested the suit and the pleadings of the parties gave birth to as many as 11 issues. Both the parties produced evidence as they wished to adduce. After hearing the learned counsel for the parties and perusal of the record the learned trial Judge, vide his judgment and decree dated 3-5-1992 passed a decree in favour of the petitioners against defendant No. 1 as prayed for. It was further ordered that, however, this decree in no way would effect the right of defendant No. 10, whose entitlement would be adjusted in the share of defendant No. 1, while incorporating the decree in the Revenue Record. This decree was challenged before the Appellate Court in an appeal which was accepted, the judgment and decree of the learned trial Court was set aside and the suit of the petitioners was dismissed, vide judgment and decree dated 13-2-1993. Hence the present revision petition.
4. I have heard the learned counsel for the parties perused the record of the case with their assistance.
5. The contest between the parties is with regard to Mutation No. 317 vide which one of the step- brother of the parties i.e,. Imam Bakhsh has shown that he had purchased the disputed property measuring 59 Kanals from his father. This mutation was entered at the instance of the said Imam Bakhsh. The petitioners who are, one is his (vendee-defendant No. 1) step-brother while the order two petitioner are his step-sisters, have sought a declaration from the Court that they are owners in possession of their share equal to the 4/11th in the disputed property stated to have been transferred to the vendee and also alleged that this mutation is a fraudulent one and ineffective upon their rights. The vendee has got no other document except the mutation, genuineness or otherwise of this mutation will have to be seen. The property is situated in Daraban Kalan, D.I. Khan.
The statement of the vendor was recorded in Tehsil, as evidence from the words, mentioned by the Revenue Officer " BA-MUQAAM TEHSIL " 4-5-1983 and the witnesses who have been cited on the mutation are Dost Muhammad and Ashiq Khan residents of Darban Khurd and on this date the mutation was not attested but rather it was ordered to be presented in the common assembly. The mutation then was attested on 10-5-1983 at Lunda on the basis of the previous order of the Revenue Officer without the presence of any person and none has been mentioned in the order to be present. The requirements of law i.e under section 42 of the West Pakistan Land Revenue Act, 1967, are that the inquiry shall be made in the common assembly in the estate to which the mutation relates and the person whose right are going to be acquired shall be identified by two respectable persons and preferably from Lambardars or Members of Union Committee etc. But in the instant case the mutation was not attested in accordance with law i.e. The statement of the vendor was not obtained and the inquiry was not made at the place where the property is situated i.e Darban Kalan, but in this case a strange process was adopted that the mutation was attested in Lunda quite a different estate on the basis of a statement recorded at Tehsil premises on a different date and the vendor was identified what to speak of the Lambardar etc. But rather by persons who lack this qualification and even also do not belong to the same estate of village as they belonged to Darban Khurd and these are two different estates situated quite apart. One Lambardar Ghulam Qasim was produced as a witness by the defendant and he stated that he was present at the time of attestation of mutation but quite strange he was not cited as a witness of the mutation but rather he deposed with respect to the transaction and whose statement is with regard to the payment, etc., the statement is also in contradiction with the statement of respondent No. 1 Imam Bakhsh. He (Ghulam Qasim) stated simply that the vendor admitted the receipt of the amount of his presence while according to Imam Bakhsh he has paid the amount to the vendor in his presence, while none of the witnesses who were cited on the mutation was produced to support the version of the petitioners. It is also not believable that a father with whom both the parties i.e. The petitioners and the defendant were having good relation would sell the property for a consideration to one of his sons and to deprive the others. According to the statement of the defendant Imam Bakhsh he was aged 78/79 years. In addition to the abovementioned infirmities the burden of proof was also on the vendee in case of transfer of property through a mutation which he utterly failed to discharge. The other point which weigh with the learned Appellate Court is the form of the suit i.e., by holding it incompetent because after this sale transaction a pre-emption suit was filed by one Karim Bakhsh anti which decree was riot challenged in the instant suit, though in the heading of the plaint the fact with regard to the challenge of the pre-emption decree is missing but if the plaint is read as a whole, then par& 3 of the said plaint would reveal that the transfer through the said decree which was passed as a result of the compromise between the vendee-defendant and pre-emptor-plaintiffs had been stated would be ineffective upon the rights of the petitioners and in which respect issue No. 7 had also been framed. In this pre-emption suit a compromise was effected and the property only 11 Kanals 2 Marlas was transferred to the pre-emptor, which is evident from a note with regard to Mutation No. 376, entered on the basis of the said pre-emption decree, endorsed on the `Fard Jamabandi' Exh. P.
W. 11/1. The total share of Imam Bakhsh defendant in the area of the disputed property 59 Kanals comes to about 16 Kanals in the inheritance of his father and thus the area which has been transferred to the plaintiff/pre-emptor would not be effected. This simple technical objection that the pre-emption decree had not been challenged, would not affect the case on merits when in the body of the plaint the facts relating to the decree and its effects have been mentioned and when the issue in this respect has been struck and specially when the rights of the pre-emptor are not going to be affected except Imam Bakhsh respondent, the vendee in that mutation and against whom the fraud has been alleged and has proved with regard to the attestation of mutation.
The not result of the above discussion is that this revision petition is accepted the judgment and decree of the learned Appellate Courts is set aside and that of the trial Court is restored. However, the parties are burdened to bear their own costs.