' Vide Mutations Nos.3576 attested on 9-4-1975, 3601, dated 4-10-1975, 3654, dated 6-7-1976, 3661, dated 18-9-1976, 3664, dated 21-10-1976, 3665, dated 21-10-1976, 3674, dated 21-10-1976, 3695, dated 21-2-1977 and 3761, dated 28-12-1977 Mst. Bibi Saira is said to have sold different properties to different persons in village Pir Sado Tehsil and District Mardan.
2. On 20-7-1978 she brought a suit against all the vendees of aforesaid mutations challenging all the transaction on the ground that she was a "Pardah Nasheen" lady and that the vendees have got the mutations attested through collusion with Revenue Authorities. That her husband was in jail and no independent advice was available to her. That she belongs to Pir Sado while mutations were attested in Baghdada and further that she had never been examined by any Local Commissioner with regard to the sales in questions.
3. After contest by the defendants/vendees, the lady was granted a decree qua property involved in Mutation No,3674, dated 21-1.0-1976 while her suit qua the remaining transaction was dismissed on the only ground that her thumb-impression on such mutations tallied with her acquired thumb- impression but it did not in connection with Mutation No,3674. Such judgment, dated 28-7-1993 of the learned Senior Civil Judge, Mardan was upheld and the appeal was dismissed by the learned Additional District Judge, Mardan on 5-10-1994 and hence this revision.
4. The arguments were addressed before me on the points that the suit was contested by Matlab Shah and Zaman Khan defendants while defendants Nos.3 and 4 had not filed any written statement and that in Courts below had failed to bring such matter into consideration. That only one defendant Zaman Khan had appeared in Court in person without being attorney for any other.
That report of the Finger Print Expert pertains only to six mutations whereas the judgments have been given about nine. That mutations were never titled deeds and thus, in connection with the proof thereof, the Court below should have fallen back on the original transaction and should have called upon the vendees to prove the same.
5. It was further agitated that the husband of the lady was in jail and her two sons aged 35/36 and 42/43 were not associated and hence no independent advice was available to her. That the identifying witnesses were neither related to the lady nor fell within the prohibited degree. That each witness on material particulars had contradicted the other witnesses. But that the Courts below had not touched any of the aspect aforesaid and had granted a decree only after being impressed by the report of Finger Print Expert who also was not examined. That the application for the condonation of one day delay in lodging the appeal before the District Judge ought to have been decided first.
6. Learned counsel for the respondents alleged that the lady wanted to sell the property by concealing the same from her close relatives and therefore, such people were not associated. That she was not a Pardahnasheen lady and that the plaintiff had failed to prove any collusion between the vendees and the revenue staff and above all, that the Finger Print Expert Report qua six mutations was against the lady.
7. It is a settled principle of law that mutation is not a deed of title and whosoever claims thereunder, has to shoulder the burden to prove such mutations. In certain circumstances of the case he is also supposed to fall back upon and to prove the original transaction independent of/A mutations. Such burden of proof lies on every vendee that claims title under a mutation, muchless a Pardahnasheen lady in whose case the B burden aforesaid is much aggravated.
8. In view of the aforesaid principle of law the burden in the instant case anyway lies on the vendees/defendants. They, probably being alive to the notion, produced as many as fourteen witnesses. These included the identifying witnesses, the attesting witnesses and the Local Commissioners who recorded allegedly the statements of the vendor lady on different mutations.
Such witnesses Were extensively cross-examined. It is astonishing, rather, shocking, to note that both the Courts below have utterly failed to appreciate and discuss the statements of such witnesses. It was most essential because the point in question was of fact and all the witnesses aforesaid pertained to the question of fact. Their weaknesses as well as the strong points could not be ignored because the appraisal of their statements would have result into the decision of one and the only question of fact involved in the instant case.
9. When once the Courts had decided such question of fact and had appraised the evidence, the next question would have been as to what should be the evidentiary value of the report of the Finger Print Expert juxtaposed to the evidence on record and the conclusion if any drawn by the Court. This also remains to be appreciated as to what would be the evidentiary value of the Expert who has not been examined.
10. Consequently, I hold with regrets that the two Courts below have failed to exercise the jurisdiction vested in them by not appreciating the intrinsic value of as many as fourteen witnesses.
The case required to be remanded to the trial Court but as the Appellate Court also is vested with C the powers of trial Court and as the unfortunate litigation is lingering on since 1978, I propose to and hereby remanded the case back to the First Appellate Court with direction to make a complete appraisal of the evidence on record and to answer thereafter all the questions raised by both the parties. The revision petition is accepted, the impugned judgments, dated 28-7-1993 and 5-10-1994 of the two Courts below are set aside and the case is remanded back to the First Appellate Court for re-decision in accordance with the observation made in this judgment. Parties to appear before the lower Appellate Court on 22-11-2001.