' This revision petition assails judgment and decree dated 15-1-1996 passed by the District Judge, Faisalabad, whereby suit filed by the respondent for declaration and injunction has been decreed, reversing findings of the trial Court.
2. Facts in short, necessary for disposal of this petition are that Ata Muhammad son of Salabat Khan died on 15-9-1986 and was succeeded by Alam Khan, Badar Din and Hameed Khan sons of Miran Bakhsh as his collaterals. Inheritance Mutation No.4473 was sanctioned by the Revenue Authorities on 26-11-1986. Dildar Khan respondent filed a suit for declaration asserting that his father Fazal Muhammad was also entitled to 1/4th share in the estate of Ata Muhammad, being a collateral of equal degree of Alam Khan etc. He asserted in his plaint that his father Fazal Muhammad was alive at the time of death of propositus (Ata Muhammad deceased). Petitioners, who are the beneficiaries of Mutation of Inheritance No.4473, dated 26-11-1986, being defendants in the suit, controverted the allegations of the respondent-plaintiff by filing written statement and controversial pleadings of the parties led to framing of issues whereafter evidence of the parties was recorded and ultimately suit of the respondent was dismissed by the learned Civil Judge on the basis of his appraisal of evidence on 9-1-1995.
3. Learned trial Judge took the view that Fazal Muhammad, father of the respondent died on 28-10- 1982 and thus was not alive at the time of death of Ata Muhammad, the propositus and this fact was correctly recorded in the proceedings of Mutation No.4473. It was also held that respondent's claim that Fazal Muhammad died on 14-7-1988 on the basis of death certificate Exh.P.1 was not tenable because entry with regard to death of Fazal Muhammad on 14-7-1988 is fictitious. He also referred to death entries of Fazal Muhammad, photo copy of the original death register (Exh.P.W.1/2), which was read by him along statement of P.W.1 and was found to be forged.
4. Respondent aggrieved of the decision by the trial Court dated 9-1-1995, filed an appeal before the learned District Judge, Faisalabad, which was ultimately accepted and suit of the 'respondent was decreed. Appellate Court took the view that death register, copy of which is Exh.P.1, was intact and none had challenged the correctness of the same in spite of the fact that petitioners were in knowledge of those entries. It also refused to rely on the order of Deputy Commissioner, whereby he after a detailed inquiry and collection of evidence, held that Fazal Muhammad died on 28-10-1982 and not on 14-7-1988, solely on the ground that the order was passed pending suit.
5. Learned counsel for the petitioners submits that Fazal Muhammad was mentioned in Mutation No. 4473 dated 26-11-1986 to be dead and this mutation was carried out in Revenue Record and on the basis of it, possession over the land in question, was changed, and thus it was within the knowledge of the respondent, but he did not challenge this mutation by way of appeal, revision or review. He further submits that suit in hand, on the face of it, was barred by limitation, as it was filed after almost seven years and thus could not have been decreed by the Appellate Court. He further contended that Deputy Commissioner was over all incharge of all the union councils and on complaint; he conducted a detailed inquiry, wherein respondent himself had been appearing, concluded that death entries of Fazal Muhammad son of Rehmay Khan, were tampered. He ordered for correction of entries, showing as his death on 28-10-1982. According to him, respondent having not challenged order of the Deputy Commissioner in any higher forum or even before the Civil Court where his suit was pending and ,having not filed any kind of appeal against the mutation, was estopped to assert that Fazal Muhammad was alive at the time of death of Ata Muhammad. Learned counsel for the petitioners elaborating his arguments submitted that the respondent in para.5 of his plaint said that sanctioning of Mutation No.4473 came to his notice after death of his father, whereas while appearing as P.W.4, he deposed that defendants had been committing with his father that they will undo the entries of mutation and that is why no suit could be filed at that time and claimed this material contradiction, as fatal to the suit.
6. Learned counsel for the respondent has refuted the arguments of the petitioners and has submitted that the petitioners themselves admitted the fact that father of the respondent was alive at the time of death of Ata Muhammad by putting such suggestions to P.W.4. He further relies on para.3 of the written statement by the petitioners, to contend that in presence of admission of the petitioners, no evidence was needed to prove that Fazal Muhammad was alive when inheritance of Ata Muhammad opened. He further substantiated his arguments by relying on section 49 of the Punjab Local Government Ordinance, 1979, whereby it was held to be bounded duty of the Union Councils to maintain the death registers. Learned counsel for the respondent emphasized that order passed by the Deputy Commissioner was void and thus required no adjudication for its annulment and was to be simply ignored. He further emphasized that Fazal Muhammad, father of the respondent, was alive at the time when succession of Ata Muhammad opened and the Appellate Court rightly decided the lis by holding that Fazal Muhammad died on 14-7-1988.
7. I have given my anxious thought to the respective arguments of the learned counsel for the parties and have examined the record. Undeniably, Deputy Commissioner, Mianwali, on an application of Rana Manzoor Ahmed son of Alam Khan, conducted a detailed inquiry into the alleged fraud of tampering with the death entry of Fazal Muhammad by his son Dildar Khan, respondent who, in those days, was the Councillor of the Union Council Dabb, District Mianwali.
Deputy Commissioner besides inquiry from Syed Shafiq Ahmed Shah, Magistrate 1st Class, Mianwali, before whom parties produced their witnesses and documentary evidence, himself summoned the death register from the union council, examined the relevant entries, heard the arguments and ultimately concluded that Fazal Muhammad died on 28-10-1982 and this entry was made on 18-12-1982 in the Union Council Dabb (Hafizwala), Tehsil and District Mianwali. Deputy Commissioner had also directed the union council concerned for correction of record, according to his findings. This order was not challenged before any higher forum or even before the Civil Court where suit of the respondent was pending. Respondent himself was a Councillor, in those days and that too of his own Union Council within the area of which the land in dispute is situated and record regarding death entry of Fazal Muhammad was maintained. An ordep, even if it is void, has to be got set aside within the hierarchy provided by the Statute under which the order was passed. The Punjab Local Government Ordinance, 1979, provides an appeal and revision against the order passed under the Ordinance but this remedy was not availed. A person, who is aware of proceedings where he had been proceeded, if loses through an adverse order and leaves it to stand, will have. To face the consequences, as well. I am not ready to accept argument of the learned counsel for the respondent that since the order passed by the Deputy Commissioner was without jurisdiction/void, it requires no adjudication. Order of the Deputy Commissioner on the one hand was not without jurisdiction because he having an overall control of the Union Councils, was exercising supervisory authority, was competent to correct record of the Union Councils, falling within his discipline whereas, on the other hand, respondent did not opt to challenge his order in appeal or revision, did not move an application for amendment of his plaint, now cannot be allowed to turn back and to say that the said order is not binding on him.
8. Inheritance mutation sanctioned on 26-11-1986 at the time of death of Ata Muhammad, propositus (Exh.P.3) has a note by the Revenue Officer, at the time of passing of the attestation order that Fazal Muhammad, father of respondent, has already died. This mutation was incorporated in the Revenue Record of the village where the respondent resides. Persons inheriting land must have taken over the possession and it is not imaginable that, had Fazal Muhammad been alive at that time, allowed the mutation to continue with an entry of his death and would have allowed to take over possession by his other contestants, to his exclusion. This mutation was also not challenged in appeal or revision provided under the Land Revenue Act, 1967 and respondent felt contended, while going before the Civil Courts, where in para.5 of the plaint, he asserted that mutation in question came to his notice after the death of his father, but while appearing as P.W.4, he deposed that petitioner/defendants had been committing with his father for undoing the mutation and ultimately on their refusal, the suit was filed.
9. There are three copies of the death entry of Fazal Muhammad son of Rehmay Khan. One is photo copy produced by Secretary, Union Council Dabb, which is a true copy of the original register maintained in the office of the Union Council and has been marked as Exh.P.W.1/2. Respondent has also produced a certified copy of the death entry of Fazal Muhammad shown in Exh.P.W.1/2 and has been marked in evidence as Exh.P.1. Petitioners also produced copy of the death entry of Fazal Muhammad in evidence as Exh.D.1. Personally compared all these three. Copies which are claimed to be copies of one death entry of Fazal Muhammad, but these do not tally to each other. In Exh.P.W.1/2 in Column No.11 duration of illness is mentioned as two months but this period is not mentioned in Exh.P.1. In Column 12 of Exh.P.W.1/2 name of the physician who treated the deceased is mentioned as Dr. Sher Gul Khan, Hafizwala, but in Exh.P.1, there is no name mentioned in this column. Likewise in Column 13 of Exh.P.W.1/2, which relates to entry carrying the name of informer and it is written as Chowkidar Chak No.14/ML, but in Exh.P.1 name of the Chowkidar is mentioned as Noor Muhammad alongwith his thumb-mark. Now I take up Exh.D.1 and would compare it with Exh.P.l, document of the respondent. In Column 7 of Exh.D.1 age of the deceased is mentioned as 70 years, whereas in Column 7 of Exh.P.l, there is no age' mentioned and instead it is mentioned in Column 6 and it is mentioned 65 years old. In Column 10 of Exh.D.1 name of Chowkidar is mentioned Murad Ali and as compared to it in Column 10 of Exh.P.1 is written fever and name of the Chowkidar is mentioned as Noor Muhammad in Column 13. Exh.D.1 is the copy of the death entry of Fazal Muhammad after order of the Deputy Commissioner dated 20-11-1993 directing correction of the record and it shows date of death of Fazal Muhammad as 28-10-1982. Comparison of Exh. P. W .1/2 and Exh.D.1 with Exh.P.1 shows that Exh.P.1 is a fake copy which also does not correspond to the entries in the original register i.e. Exh . P. W.1/2 .
10. Statement of P.W.1 alone is enough to hold that death entry shown in Exh.P.W.1/2 at Serial No.6 was subsequently procured, as its insertion, overwriting of Serial Nos.5, 6 and 7, space between this and the- entries at Serial Nos.5 and 7, ink used in this entry and handwriting of the person making it, make it to be a fictitious entry. During the course of statement of P.W.1 Maskin Ali Jafari, Secretary, Union Council Dabb towards the end of his statement, the learned trial Judge made certain observations which are also quite helpful in coming to the conclusion that the -findings of the Deputy Commissioner are absolutely correct and there can be no other view except that the entries with regard to death of Fazal Muhammad were interpolated by respondent just to earn share of inheritance in the name of his dead father, from the estate of Ata Muhammad deceased and it is clear that Fazal Muhammad was not alive at the time of death of Ata Muhammad and entries in his Inheritance Mutation No.4473, dated 26-11-986, are absolutely correct.
11. Coming to the question of limitation, there is no cavil about the proposition that to see whether the lis, is within limitation, is the primary and foremost duty of the Court in terms of provisions of section 3 of the Limitation Act, 1908. Even in absence of any objection by any of the parties, Courts are bound to advert to the point of limitation and are required to determine this point. My this view lends support from the alighted judgments of the Honourable Supreme Court of Pakistan in the cases of Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others (PLD 1964 SC 829) and Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153). Under the, provisions of Article 120 of the Limitation Act, 1908, the suit for declaration, like the one in hand, can be filed within a period of six years from the date of arising of cause of action.
Sanctioning of mutation is the starting point of limitation in the case in hand, which was attested on 26-11-1986 and suit for declaration to challenge it, was filed on 9-2-1993, after lapse of almost seven years and thus respondent's suit, on the face of record, was barred by limitation, but the Appellate Court while excepting appeal of-the respondents did not advert to this aspect of the case and incorrectly granted a decree prayed for, ignoring the fact that neither the respondent could prove that his father was alive at the time of death of Ata Muhammad' nor he could show that copy of death entry of his father Exh.D.1 was factually correct.
12. From what has been discussed-above, it is clear -that Fazal Muhammad having died on 28-10- 1982 was not entitled to inherit anything out of the estate of Ata, Muhammad, who died on 15-9- 1986, thus suit of the respondent could not have been decreed by the Appellate Court. The above noted facts were not considered at the time of decision of the appeal and the decision thus returned suffers from the defect of misreading and non-reading of evidence and from material irregularities and illegalities. This revision petition is accepted, judgment and decree, dated 15-1- 1996 passed by the District Judge, Faisalabad, is set aside with the result that judgment and decree dated 9-1-1995 passed by the Civil Judge, stands revived. Parties are left to bear their own costs.