' This judgment will dispose of Civil Revision No, 2404 of 1995 which brings under challenge judgment dated 9-10-1995 of the learned Additional District Judge, Chiniot.
2. Facts out of which this revision emerge are that petitioners filed a suit for declaration to the effect that they are owners of land measuring 16 kanals, 5 marlas being 9.32 share of land measuring 57 kanals, 7 marlas, by virtue of inheritance of Jehani and that mutation No, 308, attested on 23-9- 1993, was fictitious, illegal, a result of fraud, misrepresentation and inoperative against their rights.
Decree for permanent injunction to restrain the respondents from making any change in the revenue record was also claimed.
3. Case set up in the plaint was that late Jehani was owner of land measuring 57 kanals, 15 marlas, who had contracted two marriages, one with Mst. Sardaran (respondent No,11 herein) and other with Mst. Allah Jawai (Petitioner No, 1 herein). Out of wedlock with Mst. Sardaran, six daughters i,e,, respondents Nos. Ito 5, and Mst. Rehmai (mother of respondents 6 to 10) were born while petitioner No,2 (Allah Ditta) born out of wedlock of Mst. Allah Jawai-petitioner No,
1. Jehani died on 17-9-1993.
On his demise, petitioners approached for mutation of inheritance when it transpired, that mutation No, 308 was attested on 23-9-1993, showing that the property had been allegedly gifted out by Jehani in favour of respondents 1 to 3. Petitioners, therefore, filed the suit out of which this revision has arisen, challenging the mutation on the ground of fraud, collusion and misrepresentation and also sought declaration of their rights as a co-sharer in the land.
4. The suit was resisted by respondents, taking plea that petitioner No,1 had left the house of deceased Jehani, who was angry with her and, therefore, the land was gifted out in favour of respondents 1 to 3 due to the alleged services rendered by them to the deceased.
5. Factual and legal controversies in the pleadings, were covered by the following issues:--
(1) Whether the plaintiffs being legal heirs of Jehani are owners in possession of 9/32th share in the suit land?
(2) Whether mutation No, 308 dated 23-9-1993 is null and void, bogus, against law and the facts and inoperative qua the rights of plaintiffs?
(3) Whether the plaintiffs have got no cause of action and locus standi to being the suit?
(3-A) Whether the suit is not maintainable in its present form?
(4) Whether the suit is based on mala fide?
(5) Whether the plaintiffs are estopped by their words and conduct?
(6) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction?
(7) Whether the suit is time-barred?
(8) Relief.
6. On appraisal of the evidence, the learned Civil decreed the suit vide judgment dated 27-4-1995 but in appeal the judgment was reversed and suit was dismissed by learned Additional District Judge, vide his judgment dated 9-10-1995 which led to the present revision petition.
7. Learned counsel for the petitioners argued that the learned Additional District Judge completely overlooked the record, ignored the reasons which prevailed upon the learned Civil Judge, proceeded on erroneous assumptions, illegally assumed that the petitioners were to prove the non-existence of the gift, and that the impugned judgment is based on conjectures and surmises.
8. In reply the impugned judgment was defended and it was argued, that some of the legal heirs had not challenged the gift.
9. On deeper consideration of the findings recorded in appeal, in the light of the evidence on record, one reaches irresistible conclusion, that the impugned judgment rendered in appeal, suffers from perversity of reasoning and legal infirmities.
10. The learned Civil Judge, while decreeing the suit, was influenced by the fact, the Jehani was an aged person who was in his eighty/ninety, suffering from fever, died on 17-9-1993, the mutation was attested on 23-9-1993, i,e, after the death of Jehani. The factum of death of Jehani was concealed and the mutation effected at the time when he was not alive, the making of the gift was not established, the mutation was got attested conclusively, there was no record of the visit of Tehsildar in the area, on 5-9-1993, and that it was a calculated device, and a result of enmity to the off-spring from the second marriage of Jehani, that the proceedings were concocted. The perusal of judgment of the learned Additional District Judge, makes it obvious that all material considerations which prevailed upon the learned Civil Judge were completely overlooked and the suit was dismissed on conjectures and surmises.
11. Admittedly, petitioner No, 1 is the second wife of Jehani and petitioner No,2 is her son from the wedlock of Jehani. Likewise respondent No, 11 is the widow of Jehani and respondents Nos. 1 to 6 and Mst. Rehmai (predecessor of respondents 6 to 10) are daughters of Jehani from the wedlock of respondent No,11. By virtue of the impugned mutation, it was shown that the entire land was gifted out by Jehani in favour of respondents 1 to 3. The question was as to whether the plea of gift was fictions, the mutation was collusively entered or if Jehani ever made any statement before the Revenue functionaries, Mutation No,308 was shown to have been entered by the Patwari on 5-9- 1993. Report Roznamcha is produced as Exh.D.1. This report does not indicate, if Jehani was identified by any-one. It also does not make a reference, to the alleged presence of D.Ws. 4 and 5.
On the contrary, this report is recorded by the Patwari, which is neither thumb-marked or signed by the deceased. It is true, that there was no necessity of obtaining signatures or thumb-mark of the maker of the statement but nevertheless, there should have been some identification by any independent person, like Lumberdar, or the Member of the Union Council. Interestingly Patwari in his statement, while appearing as D.W. 2, admitted that he did not personally know Jehani. It is amazing, that this report was never got verified from the Girdawar Halqa nor it was put before him and instead it is claimed that on the same date 'an interim order was passed by Tehsildar. It is claimed that in interim order the alleged statement of Jehani was recorded though it is also not signed or thumb-marked by him. The question arises if on that date the Tehsildar was available, then why not the mutation was attested. Interestingly, the mutation is claimed to have been attested on 23-9-1993 when Jehani had already died. The circumstances, as appearing on the record show that this interim order was collusive and subsequently incorporated. No record of the visit of Tehsildar on 5-9-1993 was ever produced nor his visit was ever proved by any authentical record. On the contrary it is admitted by DW 2 Patwari that no other mutation was attested by Tehsildar on 5-9-1993. If he was on visit, then some mutations must have been presented and he would have passed some orders. The fact that no other record showing presentation of mutation for attestation before him or of Tehsildar's doing any activity in the area, on that date was produced, would show, that he was not on visit and that only the impugned report was fictitiously entered in back date. Admittedly mutation was claimed to have been attested on 23-9-1993 while Jehani died on 17-9-1993. If this has been done in the village, then the death of Jehani could not go unnoticed. The proceedings dated 23-9-1993 do not indicate if Jehani had died and on the contrary, the mutation attested in a way if he was alive. D.W. 2 (Patwari), D.W. 3 (Naib-Tehsildar) were Cross-examined and it is admitted in their evidence that neither any Lumberdar nor Girdawar ever appeared to verify any such statement of Jehani nor anyone of them ever identified Jehani.
The statements of D.W. 4 and D.W.5 were rightly disbelieved by the learned Civil Judge as they were interested witnesses. All these factors showing that the proceedings were collusive, fictitious, and fraudulent were overlooked by learned Additional District Judge, though the same were minutely scrutinized and banked upon by the learned Civil C Judge. The learned Additional District Judge mainly scrutinized the evidence of P. Ws. To criticise that the negative onus was not properly discharged. It was ignored that if an oral transaction is claimed, few days before the death of propositus than the same has to be considered with all seriousness with a view to dig out the real truth as to whether it was ever made or not and the onus is heavily upon a person who claims positively that such gift was made. The circumstances, that Jehani was an aged person of 80/90 years old, he was suffering from fever and did not die of heart attack, there were two marriages and one family was angry with the second marriage and, thus, determined to deprive the other family from the share of inheritance, the absence of any identification of Jehani before the Patwari at the time of alleged recording of Roznamcha Waqiati, and absence of putting the mutation before Girdawar for counter-verification, the non-verification and identification and also the absence of Girdawar of the area, the absence of any record showing visit of NaibTehsildar on 5-9- 1993, the absence of attestation of any other mutation on 5-9-1993 except the interim order on the disputed mutation, the admission of Patwari and Tehsildar to the effect that they did not personally know Jehani, the attestation of mutation after the death of Jehani, giving an impression as he was alive, were all material facts, which were sufficient to support the plea that no gift was ever made by the deceased and everything was fictitious and concocted. The learned Additional District Judge committed gross illegality and jurisdictional error in ignoring these circumstances and evidence on record and, thus, the impugned judgment, suffering from perversity by reasoning based on conjectures and surmises and otherwise against law cannot be approved.
12. The argument that some of the other co-shares did not question the gift would not adversely affect the right of the petitioners who were asking for their own share. If some of the shareholders do not challenge the gift at best they would be debarred to subsequently claim their share.
Nevertheless the petitioners cannot be prejudiced by any alleged inaction of some of the legal heirs from the first widow.
' For the reasons above, this revision is allowed, the judgment of the learned Additional District Judge, is set aside and that of learned Civil Judge is restored, with the result that the suit of the petitioner will remain decreed.