' Through this revision petition the judgment and decree of the Additional District Judge, Haripur dated 11-6-1991, has been impugned vide which the appeal of the petitioners was dismissed and the judgment and decree of the Court of Civil Judge I, Haripur in Suit No,176/1 was maintained.
2. The brief facts of the cane are that respondents Nos.1 to 5 (plaintiffs) have instituted Suit No,176/1 in the Court of Civil Judge, Haripur on 5-9-1983 wherein they have sought a declaration to the effect that the plaintiffs are owners in possession of 2/7 shares in the suit property which was fully described in the heading of the plaint, being successors of one Shah Farman (defendant Ne.13) and the inheritance Mutation No,941/1 attested on 26-7-1960, Sale Mutations No,942 attested on 26- 7-1960, No,992 and No,994 attested on 11-8-1960 are wrong, void and inefectie qua the rights of the plaintiffs. The plaintiffs also so ;ht a decree for perpetual injunction against defendants to the effect that they should restrain from interference with the rights of the plaintiffs and an alternate relief for possession of 2/7 shares was also sought in the plaint.
3. It is averred in the plaint that one Isa Khan, predecessor of the parties, was owner of the suit property. That on the death of the said Isa Khan the suit property devolved upon his sons Shah Farman, Shah Rehman, Mst. Balcht Jan, Mst.. Khista Jan and Mst. Sanib Jan his daughters; that whereabouts of Shah Farman predecessor of the plaintiffs are not known; that Inheritance Mutation No,941/1 was entered and attested at the behest of defendant No, 941/1 was entered and attested at the behest of defendant No,1 Shah Rehman vide which defendant No,13 Shah Farman predecessor of the plaintiffs was deprived from the inheritance of the said Isa Khan. They also prayed that the subsequent mutations are also incorrect, void and inoperative on the rights of the plaintiffs and hence are liable to correction; that defendants Nos.1 to 12 were asked to admit the claim of the plaintiffs but they refused, hence the suit.
4. Defendants contested the suit by submitting their respective written statements. The pleadings of the parties gave birth to the following issues:-
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is bad in the present form?
(3) Whether the amended plaint is not in accordance with the instructions of the Court, if so, its effect?
(4) Whether the suit is properly valued for the purposes of Court fee and jurisdiction?
(5) Whether the suit is within time?
(6) Whether defendants are in adverse possession for more than 12 years?
(7) Whether Esa Khan had transferred some land in his lifetime to compensate the descendants of Shah Farman, if so, its effect?
(8) Whether plaintiffs are estopped by their own conduct to sue?
(9) Whether the plaintiffs have instituted this suit to avoid the provisions of Muslim Family Laws Ordinance, 1961?
(10) Whether Shah Farman is dead, if so, its effect?
(11) Whether Shah Farman is unheard of, if so, its effect?
(12) Whether the plaintiffs are entitled to the declaration sought for with perpetual relief as prayed for?
(13) Whether the plaintiffs are entitled to the possessory relief in the alternative?
(14) Relief.
5. After recording of the evidence the learned trial. Court decreed the suit on 28-2-1990. The beneficiary of Inheritance Mutation No,941/1 did not prefer any appeal from the judgment and decree of the trial Court but appeal No,39/13 was lodged by Mst.Salabo Bibi 'and others, the purchasers from the original vendors i,e, the legal heirs of Isa Khan. To their misfortune the said appeal also did not succeed as the same was dismissed with costs on 11-6-1991, hence the present revision petition.
6. I have heard the learned arguments edvanced by the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the petitioners has confined his arguments to Issues No,5, 10 and 11. He submitted that the suit of the plaintiffs was barred by time and that the death of Shah Farman has not been proved in accordance with Articles 123 and 124 of Qanun-e-Shah adat, 1984. He was of the mind that the said Shah Farman had died in the lifetime of his father Isa Khan and the legal heirs of Shah Farman i. e. The plaintiffs were duly compensated by Isa Khan as he had gifted some property in his lifetime through Gift Mutation No,626 copy of which is Exh.DW1/1.
7. On the other hand, the learned counsel appearing for the respondents had supported that judgment and decree of the trial Court as well as that of Appellate Court.
8. It is a fact that Inheritance No,941/1 was entered with Patwari Halqa by Shah Rehman defendant No,1. In this mutation Shah Farman has been shown as dead prior to the death of Isa Khan. The case of the plaintiffs in their plaint as well as in their evidence is that Isa Khan had died prior to the death of Shah Farman meaning thereby that Shah Farman was alive at the time of the death of his father Isa Khan. For the convenient sake Articles 123 and 124 of Qanun-e-Shahadat, 1984 are reproduced as under:-- "123. Burden of proving death of person known to have been alive within thirty years,--Subject to Article 124, when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the persons who affirms it.
124. Burden of proving that person is alive who has not been heard of for seven years,--When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
9. Defendant No, 1 Shah Rehman has failed to prove on record that on the basis of what evidence he got omitted the name of Shah Farman from the Inheritance Mutation No,941/1 of Isa Khan. Gul Rehman while appearing as P.W.2 in the trial Court has stated that his father Shah Farman was alive at the time of the death of Isa Khan and he participated in the funeral ceremony of his father Isa Khan. This version is duly supported by one Mutawali Khan who appeared as P.W.3 during the course of trial. They have stated that after the death of Isa Khan, Shah Farman had left for Karachi to earn his livelihood. Subsequently according to P.W.2 Gul Rehman, Shah Farman was seen by him during the Indo-Pak War of 1971 in Bengal and thereafter his whereabouts were not known. The learned counsel appearing for the petitioners has laid much stress on the words of Article 124 of Qanun-e-Shahadat, 1984 (when the question is whether a man is alive or dead. And it is proved that he has not been heard of for seven years by those who naturally have heard of him) and has submitted that it were the plaintiffs and even the defendant (legal heirs of Isa Khan) who would have naturally heard of him if he had been alive and therefore, the Inheritance Mutation No,941/1 was correctly entered and attested whereby the said Shah Farman was shown as a dead person prior to the time of death of his father Isa Khan. Defendant No,1 or for that matter the other defendants (the legal heirs of Isa Khan) were not in possession of any documentary or oral evidence showing the exact date of the death of Shah Farman. The plaintiffs have averred in their evidence that Shah Farman was alive at the time of the death of his father and subsequent to it he went to Karachi and Bengal and since then his whereabouts are not known and they have not heard of him for the last seven years. Even defendant No,1 while appearing as D.W.2 has stated in examination-in-chief that "I do not know about the whereabouts of Shah Farman who is not known for the last 40 years". While he was subjected to cross-examination he has stated that "all the mutations were inheritance sale etc.. Shah Farman was my elder brother and I do not know about the whereabouts of Shah Farman since the last 40 years". In the absence of any positive evidence pertaining to the exact date of the death of Shah Farman and in presence of evidence of the plaintiffs that whereabouts of Shah Farman are not known for more than thirty years, therefore, the learned trial Court as well as the learned appellate Court were right in their view that legally Shah Farman was civilly dead on the date of institution of the present suit. In the present case no other legal mode except through the institution of the present suit, was adhered to by the parties, in order to ascertain the death of Shah Farman. The Inheritance Mutation No,941/1 of Isa Khan from which the name of Shah Farman was omitted was not entered and attested on the basis of any cogent evidence, therefore, the Inheritance Mutation No,941/1 to the extent of Shah Farman is held to be incorrect, void and hence ineffective on the rights of the present plaintiffs. It has not been shown during the course of the trial that the Revenue Officer before the attestation of the said inheritance mutation had ever conducted inquiry about the death of Shah Farman.
10. When the mutation is not legal and proper, the entire structure built on it should crumble and the limitation will not be hurdled in the way of the plaintiffs. In the circumstances of the case the plaintiffs are presumed to be co-sharers being the legal heirs of Shah Farman 'and shall be presumed to be in possession of the suit property alongwith the other co-owners.
11. As far as the Gift Mutation No,626 on behalf of Isa Khan in favour of the present plaintiff- respondents is concerned, it does not suggest that Isa Khan had gifted this propeity to donees as compensation being the legal heirs of Shah Farman presuming him to be dead in the lifetime of Isa Khan. Under the Muhammaden Law a person can gift his property to any person as he likes.
12. In the light of foregoing discussion, I am in agreement with the findings arrived at by the two Courts below and finding no force in the present revision petitions, dismiss the same leaving the parties to bear their own costs.