2004 PLP 1953 (YLR)

(2) Whether the suit is time‑barred? OPD. (3) Whether the plaintiff is estopped to sue? OPD. (4) Whether the suit has been filed with mala fide intention just to harass the defendant? OPD. (5) Whether defendant No.1 is owner in possession of the disputed land by way of Mutations Nos.624/A and 1247/B? OPD. (6) Whether the plaintiff is owner in possession of the disputed land? OPD. (7) Whether sale Mutations Nos.624/A dated 29‑11‑1992, 1247/B, dated 25‑8‑1992, are based upon fraud, forgery and misrepresentation and as such are liable to be cancelled? OPP. (8) Whether the plaintiff is entitled to get the decree as prayed for? OPP. (9) Relief. The learned trial Court after recording evidence of the parties, decreed, the suit on 24‑3‑2001 of the plaintiffs/petitioners. On appeal, the judgment of the learned trial Court was set aside and the suit was dismissed. Civil Revision No.2042 of 2001 was filed in this Court which was allowed the case was remanded. On remand the learned Additional District Judge, allowed the appeal of the respondents and set aside the judgment of the trial Court and dismissed the suit of the plaintiffs/petitioners.

2. Learned counsel for the petitioner contended that the learned Additional District Judge allowed the appeal merely on the ground that presumption of truthfulness is attached to the mutations. He argued that the mutation is not a document of title. The defendant/respondent No.1 failed to prove the same in his favour Habib Ullah/defendant appeared as his own witness as D.W.1 and his solitary statement could not be accepted as evidence to prove the sale. Conversely, learned counsel for the respondents submitted that the suit was barred by time. Baz Gul had been selling his land intermittently and in 1994‑95 no land was left in his name. He further submitted that the particulars of fraud have dot been given. The same have not been proved. Mutations in favour of the respondents were rightly attested.

3. I have gone through the judgments of the Courts below and perused the record and considered the arguments of the learned counsel for the parties. The plaint gives the detail of the fraud according to which the plaintiff never sold the land nor he received any consideration for the alleged transfer. The defendant by playing fraud and in collusion with Revenue Authorities got the mutations attested in their favour. Where the fraud is alleged, the onus shifts on the defendant to prove the sale. In the instant case, the defendant appeared as his own and soliary witness. In the absence of any independent evidence, the solitary statement of the defendant (alleged purchaser) who appeared as D.W.1 cannot be accepted as proof of the sale. Neither the person who identified Baz Gul nor the Revenue Officer was produced as witness. Defendant D.W.1, admitted in cross‑examination that he does not know the name of the person who identified Baz Gul at the time of attestation of mutation for sale of 2 Kanals of land. P. W.2 was tenant of the suit property. He deposed that he was the tenant of Baz Gull and has been paying rent to him and after his death he is paying the rent to his legal heirs. With this statement of tenant, the argument of the learned counsel for the respondent that the suit was time barred goes by the board. There is nothing on the record to show that plaintiff Baz Gul had the knowledge of the alleged sale. The learned Additional District Judge misdirected himself and misread the record.

4. For what has been stated above, the revision petition is allowed, the judgment of the Additional District Judge Mianwali dated 23‑5‑2003 is set aside and the decree of the learned trial Court dated 24‑3‑2001 is restored. M.I./H‑192/L Revision allowed.