' This judgment shall dispose of the instant revision petition (C.R.No, 225 of 1995) as also C.R. No, 226 of 1995 as facts involved in these petitions are the same.
2. Respondent No,1 filed a suit for declaration claiming the Mutation No,716, dated 7-12-1983, showing sale of property by her in favour of her brothers, petitioners defendants, is fraudulent and illegal. Likewise, the petitioners also filed a suit against said respondent seeking declaration that they are the owners of the suit land on account of the above sale mutation. Both the suits were consolidated, issues were framed, parties were put to trial and the learned Civil Judge, seized of the matter, vide judgment and decree, dated 24-6-1992, dismissed the suit of respondent No,1 holding that the sale transaction and mutation in pursuance thereof is valid, besides it was barred by time.
The suit filed by the petitioners was decreed. Against the above, respondent No, 1 preferred two appeals and the learned Appellate court reversed the judgments and decrees of the Trial Court vide judgments and decrees, dated 11-12-1994, hence these revision petitions.
3. Briefly stated, the facts of the case are that the petitioners are brothers of respondents Nos.1 and
2. It is claimed by them that both the respondents vide aforementioned mutation had transferred their shares in the suit land, which had devolved upon the parties on account of inheritance on the death of their father. Consideration of a sum of Rs,10,000 was settled and paid, which was duly received by the two respondents and a mutation was also entered and sanctioned. As mentioned above, this mutation was challenged by respondent No,1, whereas by another suit the petitioners sought declaration of their title on the basis of same mutation. Consequently, the key issue involved in these matters is regarding the validity of sale and mutation in pursuance thereto.
Moreover, the question of limitation in the case of suit filed by respondent No,1 is also material.
4. In order to prove her case, respondent No,1 produced witnesses and also appeared herself. She had examined P.W.3, an officer of the Anti-Corruption Department, to prove that the thumb impressions on the mutation were not her. She is able to prove on record being an illiterate woman; the property in dispute was a part of her inheritance and no male member, such as her husband or any major son, was present at the time when the transaction is alleged to have taken place.
5. Conversely, the petitioners produced Mst. Hameeda Bibi as D.W.1 (respondent No,2), alleged co- seller of the property, D.W.2 Naib-Tehsildar D.W.3, son of respondent No,1, D.W.5 Patwari and D.W.6 Lambardar, who is stated to have identified Mst. Saira Bibi at the time of attestation of mutation.
6. The Trial Court has dealt with the issue of limitation and validity of the mutation together and has come to the conclusion "that this mutation was within the knowledge of respondent No,1, she had not challenged the same within the period of limitation i,e,, 6 years, consequently, the suit was barred. Besides, it has not believed the thumb mark comparison of respondent No,1 for the main reason that this comparison was not sought by any Court, rather by the Anti-Corruption Department in some criminal proceedings. The Trial Court was also induced by the fact that Mst.
Hameeda Bibi, the real sister, who is allegedly the co-seller, had acknowledged the transaction; receipt of the consideration and affixation of the thumb marks on the mutation. Likewise, Akhtar Ali Lambardar has also proved that respondent No,1 was present at the time of attestation of mutation and that the consideration was also paid. The learned Judge felt that Anti-Corruption Department have some soft corner for respondent No,1 and over-acted in the matter vis-a-vis the genuineness or otherwise of the thumb impression of respondent No,1 on the mutation.
7. Whereas, the Appellate court has held that the mutation was challenged by respondent No,1; who denied having entered into sale transaction, she was not present at the time of entry or attestation of the mutation it is not proved by the petitioners that respondent No,1 had thumb- marked the mutation; and having received any consideration in pursuance of the alleged sale. It is the view of the Appellate Court, that as the petitioners were beneficiaries of the mutation, thus, it was duty cast upon them to have proved beyond doubt the validity thereof, which is lacking in the present case.
8. I have heard the learned counsel for the parties. The petitioner' side has vehemently argued that the statements of Mst. Hameeda Bibi, the co-seller of the property, D.W.3 the son of respondent No,1 Lambardar and the Patwari conclusively proved all the essential ingredient to establish the same as also the validity of this mutation.
9. I have myself examined the evidence on record and find that after the evidence led by respondent No,1, particularly in view of her statement that she has neither sold the suit land nor was a party to the sanctioning of the mutation. In presence thereof, the onus to prove the validity of transaction and of the mutation was on the petitioners. As mentioned above, Mst. Hameeda Bibi has admitted that respondent No,1 had not affixed her thumb impression on the mutation. Even she is in contrast to the other witnesses with regard to the time and venue of the attestation of mutation. As regards the son of respondent No,1, admittedly he is married to the daughter of one of the petitioners and does not reside with them. Moreover, he in unequivocal terms has not been able to prove that his mother did receive any money or was present at the time of the alleged attestation of the mutation.
' Statement of the Patwari is not of much help to the petitioners because he admits that he does not know Mst. Saira Bibi himself and she was identified by Akhtar Ali Lambdardar. Now there remains the statement of Akhtar Ali Lambardar which requires examination. From the perusal of his statement, it is established that he has given the time different from one which is stated by Mst.
Hameeda Bibi, though he states that quite a lot of peoples were present at the relevant time but does not recall the name of anyone. He even does not know what was written on the mutation by the Tehsildar. He admits that the sale consideration was not paid in front of him. He mentioned that some statements were though recorded but is not aware of the contents. Further shows lack of knowledge as to what appended thumb marks or signatures. Above all this, witness is also one of the co-accused in the criminal case got registered by respondent No,1 before the Anti-Corruption Department regarding manipulation and forgery of this very mutation.
10. Anyhow, from the evidence one conspicuous fact has emerged that the petitioners after the case with Anti-Corruption Department was got registered against them and Lambardar, were prepared to give 4 out of 5 Kanals of suit land to respondent No,1, which she did not agree. If the petitioners have validly got the land then there was no reason for them to return 4 Kanals.
11. Besides, respondent No,1 is an illiterate lady and there is no evidence on record that she had the advantage of independent advice by any close male member of family. The husband and the son of the respondent No,1 not shown to be present at any stage of the matter. In this situation it was incumbent upon the petitioners to have proved beyond any shadow of doubt that the transaction was transparent and validly effected.
12. As regards the questions of limitation, I am not impressed with the argument that respondent No,1 had the knowledge of the transaction immediately after attestation of mutation and she kept quiet and, thus, the suit was barred under the law of limitation. From the record it transpires that she approached the Court immediately on attaining the knowledge of the transaction having been held to be result of fraud and no specific evidence was led by petitioners to show that respondent No,1 had knowledge immediately after the date of mutation. The statement of one of respondent No, 1's witness that he apprised her about the mutation soon after it was sanctioned in the fact and circumstances of the case cannot be taken as sufficient, conclusive proof of the fact that she had the knowledge of the particalar mutation.
' In view of the above, I see no error in the judgments and decrees impugned before me, therefore, these revision petitions are without merits and are hereby dismissed, leaving the parties to bear their own costs.