JUDGMENT MIAN NAZIR AKHTAR, J. - This RSA arises out of a suit for possession filed by Muhammad Shaft respondent No.l on 2.11.1983 in the Court of the Senior Civil Judge. Sheikhupur.a in respect of the land measuring 153 kanals. I maria situated in ntauza Bhattian Singh Wala, Tehsil Nankana, District Sheikhupura. He claimed that he had purchased the land measuring 141 kanals, 8 marlas from the Sardar Alam son of Siraj Din through registered sale deed dated 16.7.1954 and also obtained its possession, In this connection mutation No.46 was sanctioned in his favour on 5.9.1954.
He further stated that Khasra numbers of the property had been undergoing change during the period from 1965/66 up to the year 1980/81. He added that he had been working in different Cantonments as an Army Contractor and receiving benefit of the land through his "Karindasl' but did not have an opportunity to visit the land personally. He did not get the share of produce for kharif 1981 and demanded the same from the persons in occupation who claimed that they were, owner of the land. Then he checked the revenue record and found out that a sale imitation purporting to be on his behalf was sanctioned on 31,1.1967. In favour of predecessors-in- interest of respondents No. 2. To 11. He asserted that it was a fake mutation. He mentioned that the predecessors-in-interest of respondents No. 2 to II. Had transferred part of the land through mutation No.7 attested on 22.8.1969. In favour of Langer appellant No.l. According to the plaintiff both the mutations were illegal and void and did not affect his rights and interests.
2. The suit was resisted by Langar appellant No.l, Jaisa! Appellant No.3 and Nausher appellant No.Ll who filed their written statements in the Court on 17.9.1984. The Province of Punjab also contested the suit and filed written statement in the Court on 13.6.1984. On the pleadings of the parties the trial court framed the following issues:-
(ii) Whether the plaintiff is estopped from bringing the action? OPD
(iii) Whether the plaintiff is owner of agricultural land described in the plaint? OPD *
(iv) Is the plaintiff entitled to decree for possession of the suit land described in the plaint ? OPP
(v) Relief.
3. In support of his case, the plaintiff/respondent No.l produced PW. 1 Nazir Ahmad, PW.2 Tanvir Ashraf Ali, PW.3 Muhammad Anwar Patwari, PW.4' Sardar Mehar Muhammad and himself appeared as PW.5. He also produced documents Ex.P/1 to Ex.P/12. The Defendants/appellants produced DW.l Muhammad Anwar and DW.2 Langar (appellant No.l). They also produced documents Ex.D/1 to Ex.D/8 and closed their evidence. After perusing the evidence on the record, the trial Court recorded findings on issues Nos.3 & 4 in favour of the Plaintiff/respondent and on issues Nos. 1 & 2 against the defendants and decreed the suit vide judgment and decree dated 3.5.1987.
4. The appellants' learned counsel contends that the suit filed by respondent No.l on 2.11.1983 to challenge the sale mutations Nos. 2 & 7 sanctioned on 31.1.1967 and 22.8.1969 respectively was hopelessly time barred. In this connection, he relies on Wahid Bakhsh & another through L.R's v.
Ghulam Muhammad through L.R"s (PLD 1990 Lahore 193). He further submits that there was no evidence to show that'any fraud was committed in connection witlvthe sale mutations. He submits that no witness from the revenue department was produced .o show that the mutations were forged. He further submits that the Land Revenue Act was enforced on 7.12.1967 long after the attestation of the first mutation No.2 1a I' h dated 31.1.1967. Therefore, the provisions of the Act are not relevant lor judging the legality or validity of "the mutation in question. On the other hand, learned counsel for respondent No.l contends that the respondent has been getting the share of the Batai from the tenants and when the [and lord's share was not received for Kharif 198! Then he filed the civil suit which was within limitation. He further submits that oi^ 31.1.1967, respondent No. 1 was at Kharian and had no knowledge what soever about the sale-mutations. He urged that the report of the hand writing expert (Ex.P/2) showed that signatures of respondent No. 1 did not tally with the one borne on the mutation Ex.P/6. Hence it was proved that respondent No.l never appeared before revenue officer and that the sale-mutatiion was fictitious. He urged that the report of the hand writing expert could be accepted without formal proof. In this connection he relied upon Oil Muhammad and another vs. Sain Das and others (AIR 1927 Lahore 396), Karam Din V5. Ata Mohammad (AIR 1934 Lahore 230) and Malik Din and another v.s. Muhammad Aslant (PLD) 1969 SC 136).
5. After hearing the learned counsel tor the parties and persuing the material on the record, we find that the suit filed'by respondent No.l is clearly time-barred. The suit land was mutated in the names of Ahmad. Muhammad and Jahana deceased on 31.1.1967 and thereafter their names duly figured as owners in the Jamabandies for the'year, 1967-68 (Ex.D/2, 1976/77 (Ex.P.14) and 1980-81 (Ex.P/12/13). They were also shown to be in cultivating possession of the land in the Khasra Gardawaries (Ex.P/15). Since the appellants were recorded as owners in possession and they had denied the title of respondent No.l,the plaintiff/respondent Ns?.! Was not competent to file a suit for possession. He was bound under the law to seek declaration of his on. Title and then claim possession of the land. In his on. Statement as PW.5, respondent No 1,admitted that the appellants had claimed to be owners and that they-were in cultivating possession of the land. Therefore, respondent No.l ought to have filed declaratory suit within the period of 6 years under Article 120'of the Limitation Act as held in the cases of Hakim khan v.v. Naz.Eer Ahmad Lughmani and .10 others (1992 SCMR 1832), Mst. Rasul Bibi vs. Mst. Rehmat Bibi (1987 SCMR 2036) Zil Muhammad and 3 others v. Mst. Hayat Bibi and 2 others (1971 SCMR 514),and Wahid Bakhsh and another through Legal Heirs v. Ghulam Muhammad through Legal Heirs (PLD 1990 Lahore 193). The suit filed by respondent No. 1, though styled as one for possession, in substance, amounts to a suit for declaration in the light of the averments made therein. The cause of action had accrued to respondent No. 1 firstly, on 31.1.1967 when the sale-mutation was sanctioned and secondly, some where in the year 1967- 68 when the original vendees namely Ahmad, Muhammad and Jahana had obtained physical possession of the land. Hence the suit filed on 2.11.1983 was clearly time- 124 C.C*. ..)V l barred. The claim of respondent No.l that he had been receiving share of the Batai iii Kharif 1981 does not ring true. His statement in this respect is contradictory. At one place, he stated that his Munshi namely Malik Muhammad used to receive share of the Batai and deliver the same to him but at another place stated that the appellants used to deliver share of Batai at. His residence at Lahore. The two' statements cannot be reconciled. Moreover, Munshi Malik Muhammad was alive and residing at Manawala but was not produced as a witness to support the respondent's claim of receipt of Batai. The appellants who were in cultivating possession of the land on the strength of their on. Title/ownership were not expected to pay any Batai to respondent No.l. The bare reading of the statement of respondent No. 1 shows that he had no interest in the 'and.In dispute, In para-3 of the plaint, he stated that he could not get an occasion to visit the disputed land but had been getting the benefits of the land through his Karindas. However, when he appeared as a witness in the Court, he stated that he had visited the land on a few occasions but never went there after 1960. He never checked the revenue papers pertaining to the suit land and was not aware of its Khasra numbers. He had knowledge that consolidation operations had started in the village but never cared to find out as to which land was given to him as a result of consolidation of holdings.
He was merely content by stating that he was never called during the consolidation operations.
The above facts clearly show that respondent No. I had no interest in the land and that his claim of receiving the share of Batai till Kharif 198l was incorrect. He got up from his deep slumber somew'here at the end of the year 198l and then filed the present suit on 2.11.1983 which was hopelessly barred by time. The contrary findings of the trial Court on issue No. I are not sustainable and are reversed.- 6 The trial Court did not frame any specific issue whether the disputed mutation was false or fictitious one but dealt with this aspect of the matter under issues No.3 and 4. The trial Court recorded findings of fact that respondent No,l never sold the disputed land to Ahmad, Muhammad and Jahana and that the munition dated 31.1.1967 was the result of fraud and forgery. In this connection, the trial Court gave weight to the following factors:-
(i) . On coming to know about the fictitious mutation, respondent No.l lodged an FIR Exx.P/1 with the police.
(ii) Report of the hand writing expert Ex.P/2 (obtained during the criminal proceedings shows that the disputed signatures of respondent No.l borne on the mutation Ex.P/6 did not tally with his specimen signatures.
(iii) On 31.1.1967 when the mutation was sanctioned, respondent No.l was at Kharian and had received the material and signed the work order Ex.P/3 and the receipt-Ex.PM.
(iv) No report was entered in the "Rozenamcha Waqiati" of Muhammad Anwar Patwari PW.3 on 31.1.1967.
(v) Sardar Mehar Muhammad (PW.4) stated that he had no knowledge about the disputed mutation Ex.P/6 and that he never identified the parties before the revenue officer.
On a closer scrutiny, the above reasons do not appear to have much weight. The EIR merely embodies the claim of respondent No.l that the disputed sale mutation was fictitious but this claim had to be independently proved in the civil suit. The photo copy of the report of the hand writing expert submitted in the criminal case, had no evidentiary value in the civil suit for a variety of reasons: Firstly, the photo copy of the report ought to have been compared witli the original one contained in the file of the criminal case. However, no move was made by the plaintiff/respondent No.l for summoning the record of the criminal case.
Secondly Ex.PZ is not a certified copy of the report obtained from the judicial record of the criminal Court, it is a photo-copy of the report contained in the police file which cannot be safely relied upon.
It was held in the case of Khan Muhammad Yousaf khan Khattak vs. , S.M. Ayub and two others (PLD 1973 S.C 16(f) that documents which are not copies judicial record should not be received in evidence.
Thirdly the expert was never summoned as a witness to prove the report E. P.2.
Forthly the bald opinion of the expert that the signature of Muhammad Shafi respondent No. 1 was not identical in characteristics with specimen! Signatures, without supportive reasons, is of no value. This view finds support from the judgments in the cases of Sultan and others Vs. The State (PLJ 1987 S.C 481), Ali Haider vs. The State Cr. C (Lahore) 137) and M. A. Motalib vs. The State (PLD 1960 Dacca 897)
7. The judgments relied upon by the respondent's learned counsel proceed on their on.
Distinguishable facts and are of no help to him. In the case of D.I, Muhammad, and another, thumb impressions of D.I Muhammad, petitioner (who was defendant in the suit) were sent for comparison at his instance. After receipt of the report, no request was made by the defendant to summon the expert to prove his report.
Hence, the Court was pleased to hold that the certificate of the expert was accepted by the defendant without formal proof and he could not be allowed to challenge the correctness of the certificate. The rule deducible from the judgment is thin where a party to the suit invites the opinion of the Hand-writing /Finger Prims Expert and the report is placed on the record without examining the expert tis a witness, the party inviting the opinion of the expert will be deemed to have ' accepted it and could not be permitted to object to its admissibility, In the present case, none of the'parties had invited the opinion of the Hand-writing Expert. The plaintiff/respondent No.l wanted to take advantage of the expert's report submitted in the criminal case. However, he did not care to place on the record a certified copy obtained from the judicial record but was content with filing a photo copy available in the police file. In Karam Din's case, the execution of the promissory note was held proved on the basis of the opinion of the hand writing expert obtained by the trial Court, it was held that the mere fact that the expert hail not given sworn testimony in support of the report was a mere irregularity not involving any jurisdictional defect to justify interference under section 115 of the CPC. In Malik Din's case the Hon'able Supreme Court was pleased to hold that the objection as to formality of proof had to be taken at the earliest stage and the same could not be allowed at the appellate stage. The admission of the document merely makes it part of the record but the value attached to it has to be independently determined by the Court keeping"in view the totality of the facts and circumstances of the case. The facts and circumstances of the present case clearly establish that Muhammad Shafi had transferred the suit land in favour of the three vendees and had no interest left in the land. Hence the negative opinion of the expert qua the vendor's signature does not carry much weight. Moreover, Muhammad Shafi respondent No.l did not specifically state that his signature borne on the mutation F. x.P/6 was forged. As regards the statement of Mehni Muhammad PWA we feel that he is not a reliable witness. In the examination m-chief, he stated that he did not know the parties to the suit.
However, in the cross-examination, he admitted that once he had appeared before the Military Court to make a statement in favour of plaintiff/respondent No. 1. He is an ex-policeman and an ex-chairman. Union Council Bucheyki. Probably he did not like to become an accused in the FIR lodged by respondent No. 1 against the three vendees namely Ahmad. Muhammad and Juliana and opted to favour respondent No.l by saying that he w'as not present when the mutation was attested. The validity of the mutation cannot be doubted merely because the entry was not initially made in "Rozenamacha Waqiati" of the Paiwari. Presence of respondent No.l before the revenue officer at the time of attestation of the mutation is not disproved by the documents Ex.P/3 (Works Diary ) and Ex.PM (receipt about stores issued to the contractor). The precise time when the Works Diary was signed by the contractor and when he receded the material has not come [Vol. XVI Mrs. Z. Shirazee V. Abdut Qadir C.C. 127 . (M. Hussain Adil Khatri, f) * on record. The plaintiff/respondent No.l did not state in his statement that he remained at Kharian throughout the day. Similarly, there is no evidence regarding the time when the mutation was sanctioned. The distance between Kharian and Nankana is about 150 miles which can be covered in about 4 hours in a bus or wagon. Therefore, presence of plaintiff/respondent No.l at Kharian and Nankana on 31.1.1967 was not impossible. Respondent No. 1 did not summon the Revenue Patwari who had made the entry in column No. 14 of the mutation regarding information of sale given to him by Muhammad Shafi or the revenue officer who had sanctioned the mutation. Moreover, he never challenged the correctness of the entries made in the Jamabandies, to which presumption of truth is attached. The appellants have been exercising their ownership rights since 31.1.1967. A part of the disputed land was transferred by the vendees in favour of Langar appellant No. 1 through sale mutation dated 22.8.1969. Therefore, we are inclined to hold that respondent No.l had failed to discharge the onus of issues Nos.
3. And 4. The contrary findings of the trial Court on the above issues are also reversed.
7. For the foregoing discussion, this appeal is accepted, the judgment and decree of the Courts and the suit filed by respondent No. 1 is dismissed, lelow are set aside leaving the parties to bear their on. Costs.