This civil revision is directed against the judgment and decree, dated 21-7-1987 whereby the appeal of the petitioners was dismissed and the judgment and decree, dated 15-10-1984 of the learned trial Court dismissing the declaratory suit was Maintained.
2. The facts are that one Sabz Ali Shah, the predecessor-in-interest of the parties was the owner of the land in question. Syed Mansab Hussain Shah, precedessor-in-interest of the 'petitioners was his son through Mst. Zainab Bibi while Talib Husssain, Khadim Hussain, Mst. Ghulam Sakina and Mst.
Ghulam Zohran are his sons and daughters out of his other w f Mst. Suban. The said Sabz Ali Shah transferred the land in question in favour of the respondents through Mutation of Gift No,33 dated 10-10-1969.
3. Syed Mansab Hussain Shah filed a suit for declaration to the effect that the aforesaid mutation was forged and fictitious. and has been got sanctioned by the respondents in-collusion with the revenue staff. It was contended in the plaint that Sabz Ali Shah had died on 18-12-1968 and thus, there was no question of his making any gift of the suit property in favour of the respondents. Being an heir of Syed Sabz Ali Shah the predecessor-in-interest of the petitioners claimed entitlement to his Muslim law share of inheritance in the estate of Syed Sabz Ali Shah.
4. The suit was contested by the respondents, both on law and facts of the case. It was inter alia contended that the suit was barred by time and that the plaintiff was estopped to file the suit. On merits, the validity of the gift made by Syed Sabz Ali Shah was reiterated. It was denied that the predecessor-in-interest of the parties died on 18-12-1968 as alleged. According to the respondents, Sabz Ali Shah died on 7-12-1969 much after the execution of the gift.
5. The learned trial Court framed serval issues. However, the material issues for the purpose of the present civil revision are Issues Nos,1 and 3 Which are reproduced as under:-- ISSUES
(1) Whether Mutation No,33, dated 10-10-1969 and Mutation No,34 are void in view of paras. Nos,5 and 6-A of the plaint?
(2) Whether the suit is time-barred?
6. The learned trial Court in view of the evidence produced before it. found that Mansab Ali Shah was the son of Sabz Ali Shah and as such could validly claim w be his heir alongwith the respondents. Upon the issue of limitation, it was held that the suit was within time as the cause of action was determined from the date of knowledge of the mutation which according to the learned trial Court was only 4/5 months prior to the filing of the suit. Upon the important issue No,1, the learned trial Court examined the oral and documentary evidence produced by the parties threadbare and came to the conclusion that the oral evidence produced by the petitioners was contradictory, doubtful and unreliable and did not prove or support the copy of the register of death pertaining to Sabz Ali Shah which was produced as Exh.P I. On the other hand, it found that the respondents had proved the sanctioning of Mutation No,33 through the statement of Bilal Akhtar, Patwari Halqa Mouza Mosa Botha D.W.1, Siraj Din, representative from the office of D.C. D.W.2 and Ghulam Mustafa, Patwari D.W.3. It was also established before the learned trial Court that Sabz All Shah had died on 7-12-1969. On the basis of this conclusion, the suit of the petitioners was .dismissed vide judgment and decree, dated 15-10-1984.
7. Syed Mansab Ali Shah preferred an appeal. During the pendency of the appeal, the said Mansab Shah died and was represented by the present petitioners. The learned Appellate Court revaluated the entire evidence on the record and concurred with the finding of fact of the learned trial Court upon Issue No,
1. The learned Appellate Court reassessed the findings of the learned trial Court upon the issue of limitation (Issue No,3) and disagreeing with the learned trial Court held that the suit filed on 10-9-1977 againsf the mutations which were sanctioned on 10-10-1969 and 7-12-1969 was patently barred by time. Consequently, the appeal was dismissed on 21-7-1987.
8. This civil revision seeks to challenge the above mentioned concurrent findings of both the learned lower Courts.
9. Mr. M.M. Bhatti, Advocate for the petitioners has raised the following points:
(i) that the land in question is situate in Mouza Mousa Bootha whereas the Mutation of Gift No,33 was sanctioned in the common assembly in Mouza Boonga Ranoka. He referred to the impugned Mutation No,33 which is Exh.P6. Elaborating further, he relied upon the statement of D.W.3 wherein it was admitted that Mouza Musal Bootha was a different Mouza from Mouza Boonga Ranoka.
Reliance was placed upon section 42 of the West Pakistan Land Revenue Act, 1967 to contend that the proceedings for the sanctioning of a mutation must be conducted in the common assembly of the estate in which the land is situate. To support his proposition, he made reference to the case of Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188 and John through Legal Heirs v. Abdul Majeed 2000 CLC 37. He also made reference to the case of Nabi Sarwar and 2 others v. Zaman Khan and 7 others PLD 1995 Peshawar 27 to argue that the procedure for sanctioning a mutation as provided under section 42 of the Act, 1967 was mandatory;
(ii) that according to the death certificate Exh.P.A., Sabz Ali Shah died on 18-12-1968 and that this certificate was proved through the evidence of Muhammad Iqbal, Secretary Union Council P.W.11. It was thus, contended that as Sabz All Shah had died on 18-12-1968 which was proved on the record, there was no possibility of his making any gift on 10-10-1969: (iii)regarding the question of limitation he submitted that the learned trial Court had found the suit to be within time and that the learned Appellate Court had erred in holding the suit to be time- barred. He stressed that the cause of action accrued to the petitioners only upon the denial of their right and thus, the limitation would start from such denial and not from the date of the alleged - mutation. Relying upon the case of Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281, it was urged that no limitation shall otherwise run against a legal heir of the deceased owner who claimed title on the basis of inheritance.
10. On the other, Kh. Muhammad Bashir, Advocate for the respondents contended that he mutation of gift was validly proved on the record through concurrent findings of fact of both the learned lower Courts. He further submitted that the death certificate Exh.PA has not been proved on the record in accordance with law. Even otherwise, the said certificate has not been corroborated by the oral evidence produced by the petitioners which evidence was discredited by both the learned lower Court as being contradictory and unreliable. On the other hand, it was concurrently held that Sabz Ali Shah died on 7-12-1969 and was buried on 8-12-1969. According to the learned counsel for the respondents, the petitioners have, not been able to indicate any misreading or non-reading of evidence on the record. Regarding the objection Raced section Pakistan Land Revenue Act, 1969, the learned counsel for portents contended that firstly the reason for attesting mutation in Mouza Booga Ranoka was adequately explained through the evidence on the record. It was further submitted that even if the objection raised in this behalf was accepted for the sake of arguments, it was a mere irregularity and could not vitiate the mutation itself. He relied upon the case of Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519.
11.Arguments have been heard and record perused.
12.The learned trial Court had carried out an indepth appreciation of the entire evidence on the record. The evidence of each witness was taken at its face value and a correct inference that the oral evidence of the petitioners was fraught with contradictions and inconsistencies was drawn. It also came to the conclusion that the copy from the register of deaths Exh.PA was neither proved in accordance with law nor was supported by the evidence on the record. In fact, the evidence of the petitioners did not corroborate the said certificate. On the other hand, D.W.1, D.W.2 and D.W.3 were Revenue Officials who had respectively produced the Roznamcha Waqiatti in respect of the impugned mutation as well as the original mutations Nos,33 and 34 on the record. The evidence of D.W.3 is important as he was Patwari of Mouza Musa Bootha in 1969, had entered the report in the Roznamcha Waqaitti on 1-10-1969 and proved the Mutation of Gift No,33. He also affirmed the presence of Sabz Ali Shah at the time of attestation of the mutation. The statement is also important for the reasons that he explained. why the mutation was attested in Mouza Boonga Ranoka. According to him, the Naib Tehsildar was 'on a visit in Mouza Boonga Ranoka on the said date. Apart from the mutation in question, some other mutations evidenced by Exh.D.4 and Exh.D5. were also sanctioned by the same Revenue Officer in Mouza Boolga Ranoka:
13. The learned counsel for the petitioners has not been able to indicate any error in the appreciation' of the oral and documentary evidence on the record. Both the learned lower Courts have concurrently held that the impugned mutation of gift was validly made at the instance of Sabz Ali Shah who-was present before the Revenue Officer and was duly identified by the witnesses produced on the record.
14.The reason for sanctioning the mutation in common assembly at Mouza Boonga Ranoka has been sufficiently explained through the material- on the record. There is no violation of section 42 of the Land. Revenue Act, 1967. In any event, in view of the circumstances of the -case, such a deviation can be termed as a mere irregularity which does not impinge upon the validity of the mutation in question. The learned counsel for' the petitioners has not been able to persuade this Court to hold a view different from the one expressed by both the learned lower Courts concurrently. Resultantly, the civil revision is devoid of merit and is hereby dismissed, leaving the parties to bear their own costs.