' ABDUR REHMAN KHAN, J.---Petitioners/plaintiffs sued the respondents for declaration that as heirs of Mst. Hussain Jan, their mother, they were entitled to own and possess the suit land and, therefore, Sale Mutation No,6906 sanctioned on 12-3-1985, on her behalf in favour of defendants/respondents, was collusive, fraudulent and as such was ineffective over their right.
They also claimed possession through partition of their 1/8th share as heirs of their mother in the house in suit. The plea of the plaintiffs was that on the death of their father their mother Mst.
Hussain Jan married Shamsher Khan. On the death of Shamsher Khan, their mother and the defendants, as his sons from another wife, inherited his property to the extent of their 'Sharai` share.
After their mother died, they came to know of the impugned sale mutation allegedly attested on her behalf in favour of the defendants who were her step-sons. It was pleaded in the plaint that the disputed mutation was bogus, fraudulent and without consideration as their mother had never made any statement before any Revenue Officer in respect of the sale mutation. It was alleged that their mother was an old "Pardanasheen" lady and all along resided with the plaintiffs. The stand of the defendants in the written statement was that the disputed sale mutation was genuine and that the statement of Mst. Hussain Jan was recorded through Local Commissioner in presence of respectable persons; that the sale consideration was paid to her and that no fraud had either been played on her or in the attestation of the mutation. About the house their case was that it had been gifted to defendant No,2 by their father during his lifetime who had also delivered him its possession.
2. The learned trial Court declared the impugned mutation and gift deed as genuine and consequently dismissed the suit. The judgment and decree of the trial Court was affirmed in appeal in a revision by the High Court through the impugned judgment. This petition has been moved for leave to appeal to call in question the legality of the concurrent decisions of all the Courts.
3. The learned counsel for the petitioners argued that the mutation in question has been attested in violation of the mandatory provisions of section 42 of the Land Revenue Act and that the statement of Mst. Hussain Jan, the alleged vendor, was not recorded in 'Jalsa-e-Aam' (common assembly), and thus, the entire proceedings in respect of the mutation stood vitiated which could not confer any right on the vendees/ defendants.
4. It is, thus, apparent from tenor of this argument that the learned counsel was not in a position to challenge the genuineness of the mutation as he did not impeach the veracity of the two marginal witnesses who identified the vendor before the 'local commissioner' nor doubted the proceedings conducted by the 'Local Commissioner' who recorded her statement nor that of the Tehsildar who attested the mutation. Therefore, the technical objection of non-compliance of section 42 of the Land Revenue Act, 1967 would not advance his case. Once the authenticity and genuineness of the sale transaction is established then mere irregularity in the procedure regarding attestation of mutation would not affect the binding effect of the mutation as no provision in the Land Revenue Act could be referred to which invalidated such transaction. The learned counsel relied on Hakim Khan v. Nazeer Ahmad Lughmani and others (1990 M LD 89) and Ghulam Ali and 2 others v. Mst.
Sarwar Naqvi (PLD 1990 SC 1). The former judgment has been overruled by this Court as is clear from the judgment reported as Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCM R 1832), while the latter proceeds on distinguishable facts and deals with the different proposition of law. Similarly reliance on Muhammad Isa Khan (deceased) represented by Khalida Abi Khanam and others v. Muhammad Hussain Khan and others (PLD '1954 SC 39) is also misplaced as in the present case all the possible evidence to prove the sale transaction covered by the impugned mutation has been proved which includes the local commissioner who recorded the statements of the vendor, the two marginal witnesses who identified her before the Local Commissioner and the Teshildar who attested the mutation. All the Courts have held this evidence as believable and free from defect. We could also not be shown any flaw in the evidence of the said witnesses. We, therefore, see no justification to interfere in the agreed decision of all the Courts and, accordingly, while refusing leave to appeal dismiss this petition.