This judgment will decide Civil Revision No. 131 of 1999 which calls in question judgment and decree, dated 1f-3-1999 of the learned Additional District Judge, Chishtian.
2. Facts necessary for the decision of this revision are that Mst. Zeba Bibi respondent No.1 herein filed a suit for declaration to challenge Mutations Nos. 136 and 137 of 17-1-1989. It was claimed that respondent had not transferred her property in favour of petitioner No.2 (Mst. Niamat Bibi) by way of "Tamleek" and that Mutation No. 136 was attested without her consent. It was added that the second Mutation No. 137 by which Niamat Bibi transferred the same property to Nazir Ahmad petitioner No.1 was also invalid as no property was ever transferred to Niamat Bibi.
3. Petitioners resisted the suit, maintaining that the land was lawfully mutated in favour, of Niamat Bibi and that Niamat Bibi validly alienated it in favour of petitioner No.1 Nazir Ahmad.
4. After issues and evidence the suit was dismissed by learned Civil Judge vide judgment, dated 8- 11-1997.
5. Feeling aggrieved Mst. Zeba Bibi filed appeal which was accepted by learned Additional District Judge vide impugned judgment, dated 16-3-1999.
6.In this revision petition the judgment of the Appellate Court is subject-matter of scrutiny.
7. I-earned counsel for the petitioners argued that respondent No.1 Mst. Zeba Bibi appeared as P.
W.3 and- admitted that she made "Tamleek" but the word " %-' " was inserted in her statement which was also taken note of by the Appellate Court. It was added that on accou4t of admission this suit should have been dismissed.
8. In reply it was argued that the evidence in toto was considered by the Appellate Court whereafter findings recorded were that "Tamleek" could not be proved.
9. With the assistance of learned counsel for the parties I had the opportunity to look into the evidence on record.
10, The perusal of the record indicates that the way of "Tamleek" in favour of Niamat Bibi which was given effect through Mutation No:136, dated 17-1-1989 and that she transferred it to Nazir Ahmad petitioner No.2 vide Mutation No.137 of even date. The question for consideration was if any "Tamleek" had taken place and whether the mutation was attested with the consent and knowledge of Zaiba Bibi. Once Zaiba Bibi appeared in the Court as P.W.3 and stated that she got knowledge of mutation two years before the onus had shifted. Upon the petitioner to prove that there existed a valid "Tamleek" and that mutation was attested with the consent of Mst. Zaiba Bibi.
Neither the Tehsildar who attested the mutation was produced 'f nor the Patwan who entered the mutation appeared as a witness. Muhammad Arif was the person who identified the alleged transferor but he was also not produced in the witness-box. On being asked it was not denied by learned counsel for the petitioner that Muhammad Arif was alive but he did not appear as witness.
The explanation is'that Muhammad Arif had conspired with the other party. Record reveals that the petitioner never made any such statement in the Court below that Muhammad Arif had sided with the other party. The non-production of the material witnesses, would obviously give rise to an adverse presumption...
11. As to the plea that the word was inserted later, one need not to enter upon this controversy for the reason that the statement as a whole has to be looked into. The perusal of the statement of Mst. Zaiba Bibi as a whole does not give the impression that she was inclined to accept the genuineness of the mutation or existence of "Tamleek". Instead she supported her case throughout and maintained that she had no knowledge of the mutation of "Tamleek". In this view of the matter, it will be to far--fetched if one assumes that she admitted the existence of mutation of "Tamleek".
Even otherwise, any erroneous admission is not conclusive and if the admission is factually untrue the maker thereof can retract. Be that as it may, the existence of any valid "Tamleek" in favour of Niamat Bibi was never proved. The findings recorded by the Appellate Court, therefore, do not suffer from any misreading or non-reading of record and no error of jurisdiction is pointed out. .
12. Resultantly, there is no merit in this revision which is accordingly dismissed.