' Nimatullah and others respondents/plaintiffs filed suit against the petitioners/defendants seeking declaration to the effect that they were owners of land measuring 188 Kanals, 4-1/2 Marlas comprising Khasras Nos.100, 101, 102, 103, 106, 107, 108, 108/1, 109 and 109/1 pertaining to Khata No,296/504 to 408 situated at Mauza Pir Sado Tehsil Takht Bhai, District Mardan and the petitioners/defendants have nothing to do with the same and Mutations Nos.1653 and 1654 attested on 21-9-1924 were wrong, based on fraud, illegal, hence ineffective upon their rights.
Possession through redemption of the said property and possession if not proved on any part of the property in dispute was also sought. The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of respondents/plaintiffs vide judgment and decree, dated 18-2-2002. Feeling aggrieved with the said judgment and decree, the petitioners filed Appeal No,9/13 of 2002 in the Court of Additional District Judge, Takht Bhai, which was dismissed vide judgment and decree, dated 17-4-2002. Being not contented with the judgments and decrees of the Courts below the petitioners have filed the revision petition in hand.
2. Mr. Qazi Muhammad Anwar, Advocate the learned counsel representing the petitioners argued that the property in dispute originally belonged to Hayat Khan. The said property had been mortgaged way back in the year 1899 in somebody's favour, but was got redeemed and thereafter sold by Hayat Khan to Taus Khan and Aziz Khan vide Mutation No,1654 attested on 21-9-1924 in Jalsa Aam Exh.P.W.4/D-2. The petitioners/defendants are the decendants of Taus Khan and Aziz Khan.
3. It was also argued that the suit filed by the respondents was barred by time. The same was filed after 71 years of attestation of Mutation No,1654 (which was attested on 21-9-1924). The said suit had been filed on 2-12-1995. The Courts below failed to appreciate this legal aspect of the case.
Reliance in this regard was placed on Miskeen and others v. Khadija 2001 MLD 1790.
4. It was also argued that after the attestation of Mutation No,1654 on 21st September, 1924 and handing over possession of the suit property Hayat Khan remained alive for about 35 years, but in his life time he did not challenge the mutation mentioned above or the possession of the petitioners/their predecessor. Umar Khitab P.W.5 in his cross-examination admitted that Hayat Khan died about 40 years back and in his life time he did not institute any suit against the mutation or the possession of the petitioners.
5. It was also argued that it was the duty of the respondents/ plaintiffs to prove that the impugned mutation Exh.P.W.4/D-2 was based on fraud, but they failed to prove the same through any convincing evidence. Their own witnesses P.Ws. 1 to 4 who were the officials of the Revenue Department admitted that the impugned mutation was correctly attested.
6. It was further argued that the vendor, .Vendee and the official who attested the impugned mutations were dead, therefore, the correctness and authenticity of the said mutation could not be questioned.
7. It was also argued that the Courts below had wrongly held that it was the burden of petitioners/defendants to prove that the mutation in question had been properly attested in favour of predecessor of petitioners/defendants, whereas as per law it was the burden of respondents/plaintiffs to prove that the said mutation was based on. Fraud.
8. On the other hand Mr. Muhammad Aman Khan, Advocate the learned counsel representing the respondents argued that the impugned mutation was not attested in accordance with the requirements of section 34 of the Land Revenue Act in that two mutations i.e, 1653 and 1654 had been attested on the same page, there was no attesting or identifying witness present and entries in Column No,9 with regard to the sale of the property were mit made. Moreover, though a sum of Rs,600 had been alleged on the basis of the Court decree, but details thereof. Have not been given in the said mutation, which makes the same illegal altogether and any edifice built thereon should clip down with the mutation. Reliance in this regard was placed on PLD 1964 Pesh. 159 and 1996 SCMR 856.
9. It was also argued that as per law if a thing was to be done in a particular manner, it should have been done in the manner required by law and by not attesting the mutation in accordance with law, the same would render it illegal. Reliance in this respect was placed on PLD 1999 Lah. 446, PLD 2001 (AJ&K) 15 and 2002 CLC 300.
10. It was also argued that the burden to prove that the impugned mutation was in accordance with law, was on the petitioners/defendants, which they failed to discharge. Reliance in this regard was placed on PLD 1964 Pesh. 159, 1993 SCMR 618 and 1998 CLC 2006.
11. It was also argued that since the petitioners had no title to the property in dispute, therefore, they were in unlawful possession of the same.
12. It was also argued that the Courts below have concurrently held that the mutation in question was unlawful, therefore, this Court while exercising its revisional jurisdiction may not interfere into the same.
13. I have heard the learned counsel for the parties at length and perused the record.
14. The argument of the learned counsel for the petitioners that suit filed by respondents/plaintiffs was barred by time has a force in it. The perusal of the record shows that the land in dispute had been purchased by Taus Khan and Aziz Khan vide Mutation No,1654 attested on 21-9-1924 Exh.P.W.4/D-2, but the suit was filed by respondents/ plaintiffs on 2-12-1995 i.e, after 71 years of attestation of the said mutation. It is worth mentioning that the possession of the suit property had also been handed over to Messrs Taus Khan and Aziz Khan in the year 1924 and they remained in its possession till they were alive. After their death their L.Rs, have been into the possession of the suit property without any interruption from the respondents/plaintiffs side. The perusal of the Jamabandi for the year 1925-26 Exh.P.W.3/1 shows that effect to the suit Mutation (Exh.P.W.4/D-2) was given in the said Jamabandi (for the year 1925-26) Tawas Khan and Aziz Khan were shown as owners of half share of property (Shamilat Deh). The same position continued in the Jamabandi for the year 1929-30 Exh.P.W.3/2, 1933-34 Exh.P.W.3/3, when L.Rs, of Taus Khan were brought on record because inheritance Mutation No,682 had been attested in their favour on 25-21963, 1937-38 Exh.P.W.3/4, 1941-42 Exh.P.W.3/5, 1948-49 Exh.P.W.3/6, 1952-53 Exh.P.W.3/7, 1956-57 Exh.P.W.3/8, 1960- 61 Exh.P.W.3/9, 1964-65 Exh.P.W.3/10, 1968-69 Exh.P.W.3/11, 1977-78 Exh.P.W.3/12 and 1981-82 Exh.P.W.3/13. Not only inheritance mutation of Aziz Khan was attested in favour of his L.Rs, but a few of the L.Rs, of Taus Khan and Aziz Khan also died and their inheritance also devolved upon their successors. Likewise through many mutations property changed hands, but the respondents/plaintiffs did not challenge a single entry right from 1924 till 1995 when they woke up from their deep slumber and filed the suit in hand.. The predecessors of the petitioners and after their death the petitioners as mentioned above were cultivating the land in dispute and were utilizing its yield even during the life time of Hayat Khan who had in fact sold the property in dispute and who remained alive after 40 years of the said sale transaction and handing over of the possession of the property to the predecessors of petitioners. This fact was admitted by Umar Khitab P.W.5 in cross-examination in the following words:-- ' "Hayat Khan died about 40 years back. Hayat Khan has never instituted any suit in his life time."
' But neither Hayat Khan in his life time nor the respondents/plaintiffs even after his death ever questioned as to how and in which capacity the petitioners were in possession of the property in dispute. The suit in hand was filed after 34 years of death of Hayat Khan. There is no explanation available on record as to why the respondents/plaintiffs did not challenge the entries of the Revenue Record right- from 1924 or the possession of the petitioners over the suit property. Suit for declaration under Article 120 of the Limitation Act could be filed within a period of six years. The suit in hand as mentioned above was brought by the respondents/plaintiffs after lapse of 71 years of the sale and there is no explanation worth the name either in the plaint or in the statement of Umar Khitab P.W.5 as to why the suit was filed after lapse of 71 years. Petitioners' name appeared in Jamabandi for the year 1925-26 till date. Similar question came up for hearing before the august Supreme Court of Pakistan in Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230 wherein it was held:-- ' "Additionally, petitioners have challenged validity of transaction after almost sixty years. No tangible evidence or plausible cause has been shown for such inordinate delay. Conclusions of both the Courts below as regards question of limitation are well-founded. Hardly, any error, legal defect or impropriety appears regarding suit being hopelessly barred. The conclusions arrived at in the impugned judgments are unexceptionable."
' Similarly in Miskeen and others v. Mst. Khudeja alias Mirza Noor and others 2001 MLD 1790 this Court held:-- ' "The argument of the learned counsel for the petitioners that the suit filed by plaintiffs was hopelessly barred by time has force in it. Mutation No,1676 was attested on 21-12-1939 whereas the respondents Nos.1 and 2 filed the suit on 26-11-1983. Suit for declaration under Article 120 of the Limitation Act could be filed within a period of 6 years. The suit was brought by the respondents Nos.1 and 2 after lapse of 44 years and no explanation worth the name has been given either in the plaint or in the statement by the plaintiffs as to why the suit was filed-after lapse of 44 years."
15. So far as the possession of the property in dispute is concerned, the same is admittedly with the petitioners. The predecessor of the petitioners namely Tawas Khan and Aziz Khan purchased the property in the year 1924 vide Mutation No,1654 attested on 21-9-1924. They were put into possession of the property in question and they enjoyed its possession till they were alive. After their death, successor/petitioners came into possession of the property in dispute. Tawas Khan and Aziz Khan and after their death their successors/L.Rs, remained in uninterrupted possession of the property in dispute. Neither the predecessor of respondents/plaintiffs namely Hayat Khan nor the respondents challenged their possession in the long period of 71 years. Neither respondents/plaintiffs in their plaint pleaded nor did they explain during their statements before the Court as to at what point of time did the petitioners/defendants occupy the property and how did they remain in possession of the suit property for such a long time. The petitioners through convincing evidence established that their predecessor had purchased the suit property from Hayat Khan and they were put into physical possession also and since its purchase they had been tilling the land and enjoying its usufruct. It is by now settled that ownership with possession over the land in question is protected as bona fide purchaser as held in Maqsoodur Rehman v. Mst. Janay by Legal Heirs PLD 1994 Pesh.
58.
16. The above discussion leads me to the irresistible conclusion that the suit filed by the plaintiffs/respondents was hopelessly barred by time, but the Courts below have failed to appreciate the same, they have, therefore, failed to properly exercise jurisdiction vested in them.
Without dilating upon other arguments of the learned counsel for the parties, I allow the revision petition in hand, set aside the impugned judgments and decrees passed by the Courts below and dismiss the suit filed by the respondents/plaintiffs being barred by time. There shall, however, be no order as to costs.