' This order shall dispose of Civil Revision No,331-D of 1991 and 332-D-1991 as common questions of law and facts would arise in the two cases.
' To challenge mutations of Tamleek Nos. 1069 and 1068, dated 16-5-1985, attested by Ghulam Qadir deceased, in respect of land measuring 48 Kanals, 2 Marlas and 20 Kanals in Chak No, 14/G.D, Tehsil and District Okara, respectively, respondent No 1 Ghulam Rasool filed two suits for declaration and for joint possession, praying that the two mutations of Tamleek be declared being based on fraud, forgery and impersonation and that he was entitled to 3/4th share of land being nephew of Ghulam Qadir deceased.
3. Ghulam Qadir, owner of agricultural land, died issueless. Mst. Umri, petitioner, is his widow while respondent No,1 is nephew of deceased. It was claimed that deceased Ghulam Qadir was a chronic patient of Tuberculosis and had weak health and physique and due to his prolonged illness he was not in proper senses and that he was under the influence of petitioner Mst. Umri. The two mutations were challenged on the ground of being a result of undue influence, fraud, misrepresentation.
4. After issues and evidence, the learned trial Court dismissed the suit on 14-5-1990. Respondent Ghulam Rasool, filed an appeal which was accepted by the learned Additional District Judge vide judgment and decree, dated 18-2-1991, whereby the judgment of learned trial Court was set aside and suit of the respondents was decreed.
5. In these two revision petitions, the judgments and decrees of the first Appellate Court have been assailed.
6. It is argued by the learned counsel for the petitioner that the learned trial Court on proper appreciation of the evidence dismissed the suit of respondent but the learned Appellate Court without any cogent justification reversed the findings on Issue No,8 and decreed the suit. Further submitted, that the evidence has not been properly appreciated. Conversely, learned counsel for the respondents supported the judgments of the first Appellate Court and submitted that. The evidence on record proved beyond doubt that the two mutations of Tamleek were the result of fraud and undue influence, and that the deceased was not mentally and physically sound enough to make any transaction. He also referred to the findings of the learned Additional District Judge recorded at pages 9 and 10 of the judgment and submitted that the decrees passed in appeal are legally justified for the reasons enumerated in the judgments of learned Appellate Court. Further submitted, that respondents produced independent witnesses which have been correctly relied upon while witnesses produced by petitioner were interested. He also submitted that the Patwari who was not the Halqa Patwari voluntarily appeared without summoning by the Court and unauthorisedly brought the record which would show his hidden interest. Learned counsel argued that the findings of fact recorded by the learned Appellate Court correctly reflect the evidence on record; hence the same cannot be challenged in revision.
7. The contentions of learned counsel for the parties have been considered and record perused.
The two mutations of Tamleek were challenged by respondents on the ground, amongst other, that the same were a result of undue influence and fraud, and that the deceased Ghulam Qadir was not in his proper senses and not competent to take any independent decision or to make any Tamleek. The evidence of P.Ws.1 and 2 is confidence inspiring and evidence of independent persons. From the review of the evidence, it emerges that Ghulam Qadir had been living with Umri, petitioner, he was an old man of age about 80/90 years and his condition was such that he could not resist influence of petitioner and that his mental capacity had been seriously and adversely affected due to his old age and also Mst. Umri was not only in a position to dominate but used her influence for achieving the results, in addition thereto, the record shows that Exh.D.1 is Rapt- Rozenamcha Waqyati No,379 which was entered on 2-5-1985 and in the column of title number of mutations were given. It is strange that mutation was yet to be entered by the Patwari after incorporation in Rapt-Rozenamcha Waqyati and there was no occasion for giving number. The Rapt Rozenamcha Waqyati also bore the thumb impression of Ghulam Qadir who had never stated that number of mutations to be attested, be intimating to him. It is not explained why two mutations (Nos.1068 and 1069) were later entered by the Revenue Patwari. Similarly, Rapt- Rozenamcha Waqyati is shown to have been entered in disregard of Para. 3.81 of the Land Record Manual, which proved that the occurrence must be noted by the Patwari in his Diary on the day when it comes to his notice, the manner in which it comes to his notice be stated and the signature or seal of one of the village headman concerned be taken. The only person whose signatures can be fixed to the entry made in the diary is village Lambardar. The obtainment of thumb-impression of Ghulam Qadir was not essential. The learned Additional District Judge rightly observed that if the thumb-impression of Ghulam Qadir was taken to give an impression of his willingness to the Tamleekama then the thumb-impression of Mst. Urnri should also be obtained in acceptance of the same. Again para. 7.4 of Land Record Manual forbidded taking of thumb-mark or the signature of any of the parties to the transaction anywhere on the mutation sheet. Mutation No,1069 indicates that in addition to the signatures of Muhammad Aslam Lamberdar and Muhammad Akram Patti Dar, thumb-impression of Ghulam Qadir and Mst. Umri were also to be obtained at the time of attestation of mutation.
Over Exhs.D/4 and D/5, the signatures of the Lumbardar or Patwari are below the order of attesting authority i,e, Revenue Officer while on Exh.D/3 the signatures of the parties and witnesses are over the orders of Tehsildar. This would show that the signatures and thumb-impression were taken earlier than the attestation of mutation. This was a catch which helps in detecting the traces of fraud left behind. In the normal course, the signatures of the parties and witnesses are down below the order and signatures of the attesting authority, and not over and above the order itself. The signatures follows the orders and not orders follow the signatures. The learned Additional District Judge took note of this fact and considered it as one of the element and ingredient of fraud committed by the petitioner for the purposes of and in the matter of attestation of mutation of Tamleek.
8. Liaqat Ali Patwari, D.W.4 who was instrumental to the fraud appeared in the Courts alongwith record without any summons or process of the Court, notwithstanding the fact that according to the orders dated 21-1-1988 passed in revision, he could not be summoned through Court. Neither he seeks permission from the Revenue Officer/Tehsildar nor he was ever summoned by the Court yet he unauthorisedly brings the same record and entered appearance at the instance of Mst. Umri which clearly proves his collusion with the petitioner. Additionally, other D.Ws. Were interested persons whose testimony was rightly excluded from the consideration. Even otherwise the oral evidence was contradicted by the documents on record. No independent evidence of gift was produced, therefore, no reliance on the mutation of Tamleek, which has been found to be a result of fraud and undue influence could be placed nor the petitioners could prove valid transfer. Even otherwise, in law, any contemplated effort, through collusive transaction, with the intent to disinherit the real legal heirs, cannot be approved, particularly, when the mutations of Tamleek could not be proved, to be a result of free-will, volition and consent of the deceased.
9. In view of the reasons, there is no substance in the submissions made by the learned counsel for the petitioner. The learned trial Court, after considering the points noted above and also reviewing the entire evidence on record, recorded the findings of fact against the petitioners which could not be shown to have suffered from any misreading or non-reading of the evidence. During hearing of this case and review of the record, no infirmity in the findings recorded by the learned Additional District Judge was observed or pointed out.
10. In view of the above there is no merits, in these two civil revisions which are accordingly dismissed, leaving the parties to bear their own costs.