' This civil revision petition calls in question the judgment at variance of the learned Additional District Judge, Rajanpur, dated 14-3-1991, reversing the judgment and decree of the learned Civil Judge, Rajanpur, dated 6-7-1989.
2. The dispute relates to the inheritance of Atta Muhammad deceased who admittedly died in 1944-45 leaving the land in dispute in this case and some land in another Mauza Shahani of Tehsil Jampur. Mutation No,1064 Exh.P.4 regarding the inheritance of the disputed land was attested on 8- 4-1951 in favour of his two real brothers, defendants in the suit, on the basis, that he had died issueless and his wife had also predeceased him. Abdul Sattar plaintiff/respondent filed a suit for declaration and possession of the disputed land on 17-2-1986. He claimed to be the son of Atta Muhammad, deceased. He pleaded that he had been receiving the produce of the disputed land from the defendants/petitioners till 1984 when the defendants claimed to be the owners of the disputed land to the exclusion of the plaintiff and refused to pay him the rent any further. The plaintiff asserted that on inquiry it was revealed that the defendants had, through fraud and falsehood, got the said mutation of inheritance attested in their favour on the baseless assertion that Atta Muhammad haddied issueless. The plaintiff applied to the Revenue Officer for correction of the Revenue Record on the basis- of his own claim as the sole heir of the deceased. The revenue authorities entered two Mutations Nos.934 and 935 Exh.P.6 respectively and held a detailed inquiry into the claim of the plaintiff and rejected both the mutations on 1-7-1985 on the finding that the plaintiff had failed to prove that he was the son of Atta Muhammad, deceased. The plaintiff N pleaded that Mutation o.709 dated 28-8-1959 Exh.P.7 regarding the inheritance of Atta Muhammad in Mauza Shahani, Tehsil Jampur, was attested in his favour.
3. The defendants in their written statement denied the plea of the plaintiff that he was son of Atta Muhammad or that he had been receiving the rent of the disputed land from them. They also raised the plea of limitation, adverse possession and estoppel. The suit was set down for hearing on the following issues:-
(1) Whether the suit is barred by limitation? OPD.
(2) Whether the plaintiff is estopped to sue on account of his own conduct? OPD.
(3) Whether the plaintiff is owner of the disputed property being the son of Atta Muhammad, deceased? OPP
(4) Whether Mutations Nos.1064, 934, 935 are illegal, against facts void and ineffective on his rights?
OPP.
(5) Relief.
4. The plaintiff produced Paira and Atta Muhammad as P.W.1 and 2 and himself appeared as P.W.3.
In addition to the abovesaid copies of the Revenue Record, the plaintiff also produced copy of Nikahnama Exh.P.1 . Of Atta Muhammad deceased with his mother Mst. Pairi dated 10-4-1942 and his own Nikahnama dated 15-9-1966. The defendants produced Imam Bakhsh as D.W.2 and Dur Muhammad defendant appeared as D.W.1.
5. On the basis of above evidence the Trial Court decided issues Nos.3 and 4 against the plaintiff.
And Issue No,1 in favour of the defendants. Issue No,2 was decided against the defendants and suit was dismissed.. On appeal by the plaintiff the first appellate Court reversed the findings of, the Trial Court on Issues Nos.1, 3 and 4 and decreed the suit of the plaintiff.
6. In this civil revision petition the learned counsel for, the defendants/petitioners has urged that the findings of the first appellate Court suffer from misreading and non-reading of the evidence by placing reliance on inadmissible evidence and in disregard of the fact that the plaintiff had never been in the possession of the suit land. He also urged that the legal presumption attached to the entries in the record of rights Exhs.P.3 and P.4, have gone unconsidered. No birth certificate or pedigree-table was produced by the plaintiff. He also urged that the learned first appellate Court illegally relied on Exh.P.2 although it was not proved according to the law nor was Dur Muhammad defendant appearing as D.W.1 confronted with it. He also pressed the plea of limitation and argued that the suit was badly barred by time.
7. On the other hand, the learned counsel for the plaintiff/respondent supported the judgment of the first appellate Court and the reasoning's contained in it. He particularly sought support from the signatures of both the defendants on the Nikahnama Exh.P.2 showing the plaintiff the son of Atta Muhammad deceased. He also stressed the attestation of Mutation Exh.P.7 in favour of the plaintiff as the son of Atta Muhammad deceased. On the question of limitation the learned counsel for the plaintiff/respondent argued that it was a case of inheritance and limitation would not operate against the plaintiff a co-heir.
8. I have heard the learned counsel for the respective parties at a considerable length and have also given my anxious considerations to the facts and the circumstances of the case. I have also gone through the precedents cited by both the parties and have also perused the record with their assistance.
9. The maternity of the plaintiff/respondent is not in dispute. It is admitted between the parties that Mst. Pairi mother of the plaintiff/respondent was previously married with one Muhammad Ali and it was after the divorce by the said Muhammad Ali that she married Atta Muhammad, deceased. The pleadings of the parties suffer from undue brevity but in evidence the divergence in the stands of the parties came out. The plaintiff/respondent claimed that he was born to Mst. Pairi after her marriage with Atta Muhammad deceased. On the other hand the defendants/petitioners claimed that the mother of the plaintiff/respondent married the deceased while she was carrying the plaintiff/respondent in her lap as her son from her first husband Muhammad Ali. The burden of proof was on the plaintiff/respondent. His witness Paira P.W.1 is evidently an interested witness as the plaintiff/respondent is admittedly the nephew of his wife. It is also admitted that this P.W. Was not produced during the revenue inquiry evidenced by mutation Exh.P.6. The learned first appellate Court committed material irregularity in not considering these two important aspects while putting implicit faith in his testimony. Atta Muhammad P.W.2 did lend support to the case of the plaintiff/respondent in his examination-in-chief but his cross-examination clearly shows that he had the least knowledge of the relationship and the relatives of the parties. He did not know the name of the father or brothers of Mst. Pairi. He stated his age to be only 50 years but made a fool of himself in deposing that she was married about 60 years ago. Again he deposed that. Atta Muhammad had died 40/50 years before thus leaving a margin of about 10 years in the admitted years of death of Atta Muhammad, deceased. The statement of this type of procured witness was not sufficient to sustain the finding of the learned first appellate Court on Issue No,3. The learned Additional District Judge legally erred in overstretching the denied suggestion to P.W.1 that Mst. Pairi was divorced by Muhammad Ali before consummation of her marriage with him. The remaining contents of the cross-examinations of the P.Ws. And the statements of the D.Ws. That the plaintiff/respondent was born from the wedlock of Mst. Pairi with Muhammad Ali was completely blacked out. The learned Additional District Judge ignored the principle that cumulative effect of evidence was to be weighed. The basic factor which was completely ignored by the learned Additional District Judge was the lapse of more than 40 years between the death of Atta Muhammad and the filing of this suit. There was no evidence worth the name to believe the version of the plaintiff/respondent that he had been receiving the rent/produce from the defendants/petitioners. The plaintiff/respondent in his cross-examination as P:W.3 stated that he had himself been in possession of the disputed land and had been self-cultivating it. This was neither pleaded in his plaint nor was this version supported by two P.Ws. Produced by him. On the other hand P.W.2 admitted that the defendants had been in cultivating possession of the disputed land. No lease agreement or entry in the Khasra Girdawari was produced to suggest that the defendants had been holding the disputed land as lessees/tenants under the plaintiff/respondent.
The presumption under section 52 of the Punjab Land Revenue Act, 1967, attaching to the entries of the record of rights produced by the plaintiff/respondent himself as Exhs.P.3 and P.4 showing the defendants as owners in cultivating possession of the disputed land was thus unrebutted. The section 52 of the Act ibid is reproduced below for ready reference:- "Presumption in favour of entries in records of rights and periodical records.--An entry made in a record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder; shall be presumed to be true until the contrary is proved or a new entry .Is lawfully substituted therefor."
' It was so held by the Supreme Court in case Ahmad Ali and others v. Muhammad lqbal and another (1986 SCM R 244). The plea of the plaintiff/respondent was that the defendants/petitioners got the mutation of inheritance fraudulently attested in their favour by suppressing the fact of his being the son of the deceased has no weight as he was required by law to prove the plea of fraud beyond all reasonable doubts. It has been laid down by the Privy Council in the case of Hansraj Gupta and others v. Dehra Dun-Mussoorie Electrict Tramway Co. Ltd. (AIR 1940 PC 98) and ALN, Narayanan Cheetyar and another v. Official Assignee, High Court Rangoon and another (AIR 1941 PC 93) that fraud must be established beyond all reasonable doubts. It cannot be based on suspicion and conjecture. It has also been laid down by the Supreme Court of Pakistan in Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) that the burden of proving fraud, it must be remembered, is on the party alleging it and that too by clear and convincing evidence particularly where a. Long period has expired and valuable rights have accrued to the other side.
The plaintiff/respondent failed to bring any iota of evidence of the standard required by the said precedents to prove the fraud.
10. The learned first appellate Court also acted illegally in reading the Nikahnama Exh.P.2 against the defendants. The Nikahnama or the Nikah Registrar or any other independent witness was not produced by the plaintiff/respondent that the defendants subscribed to this Nikahnama showing the plaintiff/respondent was son of Atta Muhammad porosities. Even if this document be considered to be proved, its contents could not be read against the defendants/petitioners in view of the violation of the mandatory provision of Article 140 of the Qanun-e-Shahadat, 1984, which reads as under:-- "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
' Dur Muhammad appearing as D.W.1 denied his signatures or that of his brother co-defendant Ghulam Muhammad on this document. These signatures were denied even in the cross- examination of the P. Ws. But even then the plaintiff/respondent did not confront Dur Muhammad with his alleged signatures. It has been held in Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730) affirming and approving the Full Bench decision of this Court reported as Firm Malik Das Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1946 Lahore 65) that:-- "Without complying with the procedure laid down in section 145 (Article 140 of Qanun-e-Shahadat, 1984) the admission contained in previous statement cannot be used as legal evidence against that party."
The finding of the lower appellate Court on Issue No,3 is thus based on misreading and non- reading of evidence and disregard of mandatory legal provision. This finding on this issue is, therefore, reversed.
11. The suit is also patently barred by limitation. The plaintiff/respondent could at the most file this suit within the maximum period of 12 years as required under Article 144 of the Limitation Act, 1908 which reads as follows:-- "For' possession of immovable property or any interest therein not hereby otherwise specifically provided for --- twelve years --- when the possession of the defendant becomes adverse to the plaintiff."
' The contention of the plaintiff/respondent as upheld by the first appellate Court, that this was a case of inheritance and limitation could not operate between the co-heirs, is misconceived, even if the plaintiff/respondent was found to be a son of the deceased, he would have inherited the entire property and defendants/petitioners who are the brothers of the deceased would have been totally excluded from inheritance. There was thus no case of parties to the suit being co-sharers or co-heirs. The authorities relied upon by the learned counsel for the plaintiff/respondent viz Mst.
Zarifan v. Mst. Rehmati (1987 SCM R 66), Haji _through his Legal Heirs and others v. Khoda Yar through .His Legal Heirs (PLD 1987 SC 453) and Nazir Ahmed through Legal Heirs v. Boota and 3 oihers (1988 CLC 1925) relate to the cases of co-sharers or co-heirs. The law is well- established/settled that in the case of the co-sharer or co-heir no limitation or adverse possessiontan operate unless actual ouster is proved. The precedents quoted above are entirely distinguishable. The parties neither could be co-heirs nor co-sharers. It is, fully proved, as held above, that the defendants/petitioners had been in possession of the disputed and right from the death of 'Atta Muhammad deceased and the attestation of mutation of his inheritance Exh. P.4 in their favour to the exclusion of the plaintiff/respondent. He should have, therefore, brought his suit within 12 years of the death of Atta Muhammad or within 3 years of his attaining majority. His suit filed more than 40 years after the death in 1986 is thus clearly barred by limitation. The finding of the lower appellate Court on this issue is also reversed.
12. This revision petition is, therefore, accepted, the judgment and decree of the lower appellate Court dated 14-3-1991 are reversed and those of the learned Trial Court/Civil Judge, Rajanpur dated 6-7-1989 are restored. Since the complicated question of law and facts were involved in this case, the parties are left to. Bear their own costs throughout.