The original Court by judgment dated 30-6-1981 decreed the suit of he plaintiff-petitioner but through the impugned judgment dated 5-10-1985 the Appellate Court while accepting the appeal dismissed the suit. This revision petition has been filed to call in question the legality of the judgment and decree of the learned Appellate Court.
2. It would be pertinent to give a brief background of the present litigation between the parties in order to have a clear picture of the points involved in the case. The plaintiff-petitioner initially filed a suit for a declaration that the defendant was not his legally wedded wife; that the disputed land measuring 20 Kanals, 9 Marlas was owned and possessed by him that the defendant was neither entitled to maintenance nor to receive the produce of the land in question; and that Mutation No,393 attested on 16-7-1969 in favour of the defendant was illegal, collusive and fraudulent and, therefore, ineffective over his rights. This suit was contested by the defendant and her stand was that the plaintiff wanted her consent for second marriage and she agreed to his second marriage on the condition that the disputed land should be mutated in her name which he accordingly did.
The learned Trial Judge, by order dated 24-1-1979 although held that he was not competent to decide the question of jactitation but even then he dismissed the suit holding that the mutation has been correctly attested. On appeal of the plaintiff the learned Appellate Court through its decision dated 27-5-1979 while accepting the appeal remanded the case to the Trial Judge with the direction that, he should require the plaintiff-appellant to suitably amend his plaint in the light of the observation made above and should then proceed with the matter afresh according to law.
The plaintiff then filed the amended plaint wherein he confined his claim to the land in question and the cancellation of the disputed mutation on the ground of fraud, collusion etc. The defendant reiterated her assertion of the mutation being genuine. In this round the learned Trial Judge decreed the suit but the Appellate Court dismissed the suit and hence this revision.
3. The learned counsel representing the petitioner submitted that the handing over of possession has not been proved and that no independent witness has been examined to substantiate the genuineness of the impugned mutation. On the other hand, the learned Advocate of the respondent supported the impugned judgment.
4. In order to answer the contention of the either side, it would be relevant to briefly refer to the evidence on record. Before remand, P.W.1 Naushad, Moharrir P.S. Topi, was examined to prove F.I.R.
No .85 , dated 8-7-1980 in which the defendant was charged for the murder of the second wife of the plaintiff. P.W.2 Gul Qamar, Patwari Halqa, brought on record the extracts, for Jamabandi and Khasra Girdawari. The plaintiff himself has appeared as P.W.3, who contrary to the assertion in his plaint admitted the defendant to be his wife, but stated that she had been divorced. The defendant examined Toti Shah as D.W.1, who verified his signature as a marginal witness over the mutation in question. The defendant herself appeared as D.W.2 and stated that she was married to the plaintiff 22 years back but as no child was born to her, therefore, the plaintiff required her to allow him to have a second wife. The defendant agreed to this on the condition that the plaintiff would mutate the land in question in her favour and the disputed mutation was attested on the basis of this settlement between them.
5. After the remand, Waheed Gul again appeared as AR/D.W.1 in support of his stand. Sawab Gul Jan, Patwari, brought on record copy of the daily diary dated 1-6-1979 as Exh.D.1, on record. Sher Farzand, Patwari, was the scribe of Exh.D.1, which is the entry in the daily diary. This witness stated that the entry was effected at the instance of the plaintiff, who had signed it.
6. The evidence of Toti Shah, D.W.1, that of Sher Farzand, Patwari (AR/D.W.2) and the copy of 'Roznamcha' (Exh.D.1) clearly proves that the mutation in question was attested at the instance of the petitioner. It is to be noted that the plaintiff has not been able to discredit in any manner the deposition of any one of these witnesses. Beside this, the conflicting stand of the plaintiff would also negative his assertion and rather support the case of the defendant. In this context, it is worth mentioning that in the unamended plaint the plaintiff had stated that he was not married to the defendant and, therefore, the mutation in question could not be attested in her name, but has again said in his statement in Court that he was married to the defendant but he divorced her. In view of this state of record, the learned Appellate Court was legally justified in holding the mutation in question to be genuine having been attested with the consent of the plaintiff. The factum of divorce has not been established nor it has been proved that the defendant was not residing with the plaintiff at the time of attestation of the mutation as the impugned mutation had been entered and attested prior to the criminal case against the respondent. As the plaintiff and defendant lived jointly in one house as wife and husband, therefore, no strict proof of delivery of possession would be necessary as defendant would be considered in possession of the property in question through the plaintiff even if her name is not specifically entered in the Revenue Record. In such a situation, it would not be imperative to strictly prove the change of possession but on account of attestation of mutation it would be presumed that the change of possession has occurred from the donor to the done. Moreover, the learned counsel pleading for the petitioner was not able to point out any jurisdictional defect in the impugned judgment nor he could show any misreading of relevant evidence or over-looking of any important evidence. I, therefore, find no substance in this revision petition which is accordingly dismissed with costs.