2002 PLP 2514 (YLR)

(1) Whether the plaintiff is owner in possession of the suit‑land? OPP (1-A) Whether defendant No.5 is heir of deceased Fazal Din, If so with what effect? OPP (2) Whether Mutation, dated 37‑3‑1970 is illegal, fictitious, without consideration and ineffective against the rights of the plaintiff? OPP. (3) If issue No.2 is proved, whether mutation, dated 31‑8‑1973 is illegal void, and ineffective? OPP. (4) Relief.

5. Fazal Din died during the pendency of the suit and respondents Nos.2, 3 and 4 were impleaded as his legal representatives. Parties led extensive oral and documentary evidence before the trial Court. The learned trial Court came to the conclusion that the evidence produced by the plaintiff was not sufficient to, prove that the plaintiff was the person in whose favour the Patta Malkiat was issued by the Government. Holding that the plaintiff had failed to prove the ownership of the suit land, the learned trial Court proceeded to decide Issues Nos.2 and 3 also against him. Issue No.

1. A arose upon the impleadment of a son of Fazal Din also named Abdul Haq. This issue was answered in the affirmative.

6. Consequently, vide judgment and decree dated 27‑11‑1975 the suit of respondent No.1 was dismissed. Respondent No. 1, filed an appeal. The learned Appellate Court re‑examined the evidence and placing the claim of respondent No. 1/plaintiff in juxtaposition with the case set up by the defendants came to the conclusion that the plaintiff was indeed the same Abdul Haq son of Chiragh Din who is the owner of the suit land through Patta Malkiat issued in his favour and that he was also known as Umer Din. The learned Appellate Court found the evidence produced by the plaintiff to be credit worthy and that produced by the defendants to be weak arid discrepant. Acting upon the principle of preponderance, of evidence, the judgment and decree of the trial Court was set aside and accepting the appeal of respondent No. 1, decreed his suit for declaration and injunction vide judgment and decree, dated 25‑10‑1983 which is impugned in the present civil revision.

7. Mr. M.M. Bhatti, Advocate, the learned counsel for the petitioner assailed the judgment of the Appellate Court or the ground that it was based on misreading and non reading of material evidence. According to him Abdul Haq son of Chiragh Din who was the real allottee of the suit land had transferred the same vide Mutation of Gift No.43 in favour of Fazal Din. It was also contended that no proof of lease in favour of Fazal Din was brought on the record.

8. The judgment of the Appellate Court was also criticised on the ground that the documents exhibited on the record as Exh.P. 1 to Exh.P.9 were not parse admissible in evidence and no reliance, could be placed upon them until formally proved. On, the other hand, it was further contended that Exh.D.1, Exh.D.2, Exh.D.3, Exh. D.4 and Exh.D.6 were sufficient to prove that Chiragh Din who had sons namely Falak Sher, Shah Muhammad, Siraj Din and Umer Din had no, son by the name of Abdul Haq. It was finally contended that the basic issue was issue No. 1, the burden of proof of which was squarely placed upon the plaintiff/respondent No. 1, who had miserably failed to discharge the said onus. According to the learned counsel, it was incumbent upon the plaintiff to have proved his identity that he was Abdul Haq son of Chiragh Din in whose favour the land was transferred by the Government. He urged that the learned trial Court had approached, the controversy in the correct perspective and had rightly concluded that the plaintiff had failed to prove his ownership over the suit land. The reversal of the said finding by the Appellate Court was not justified.

9. On the other hand, Choudhary Abdus Sattar, Advocate, the learned counsel for respondent No.1 fully supported the judgment of the learned Appellate Court. He referred to the statement of Falak Sher son of Chiragh Din P.W.2 Muhammad Sadiq son of Chiragh Din P.W.5 and Siraj Din P.W.6 to submit that all these witnesses are sons of Chiragh Din and have consistently stated that Abdul Haq plaintiff was the son of the Chiragh Din and was their real brother. They also stated that Abdul Haq is also known as Umer Din. This oral testimony, according to the learned counsel was supported by the documentary evidence produced on the record by the plaintiff. The learned counsel further submitted that even from the documents produced by the defendants themselves, the identity, of the plaintiff as Abdul Haq son of Chiragh Din is established. According to him documents Exh.P.1 to Exh.P.2 were produced through the Record Keeper Office Saddar Qanoongo Bahawal Nagar P. W.1 and, were thus properly brought on the record. He further referred to the contradictor stand taken by the defendants in their written statement and that brought forward in their evidence. Referring to para. 1 of the written statement it was contended that Abdul Haq from whom Fazal Din claims to have acquired the property through gift is described blind and alive. The said Abdul Haq was not produced by the petitioners and this failure shall be fatal to the claim of the petitioners. Abdul Haq son of Fazal Din appeared as D.W.2 but he clearly stated that he was the son of Fazal Din and not the alleged nephew.

10. Arguments have been heard. Record perused.

11. The controversy between the parties is peculiar as well as, contentious although certain facts are admitted between the parties. It is not disputed that the land in suit was transferred in favour of Abdul Haq son of Chiragh Din through a registered instrument, dated 13‑6‑1969. Mutation No.42 (Exh.P.14) on the basis of said registered deed was also attested in favour of Abdul Haq son of Chiragh Din on 31‑3‑1970. The dispute started with the attesting of Mutation No.43 (Exh.P.1) whereby Fazal Din claimed the transfer of the suit‑land through gift from Abdul Haq son of Chiragh Din who was described in the said mutation as the real paternal nephew of Fazal Din. It was on the basis of this mutation that Fazal Din further gifted the suit‑land in favour of the present petitioners through Mutation No.45, dated 31‑8‑1973.

12. The suit in hand was filed by respondent No. 1 was described himself in the memo. of the parties as Abdul Haq alias Umer Din son of Chiragh Din. It was claimed in the suit that he was the original owner of the suit property which was given to Fazal Din on the basis of Mustajri in Kharif 1969. It was alleged that the said Fazal Din posed himself as the paternal uncle of the plaintiff and unlawfully got the mutation of gift attested in his favour. The plaintiff denied the making of any such gift. Further mutation of gift in favour of the present petitioners was also challenged.

13. In the original written statement which was field by Fazal Din deceased, Muhammad Mumtaz and Muhammad Sarwar together it was contended that the real name of the plaintiff of the suit was Umer Din and that the real owner of the suit property namely Abdul Haq son of Chiragh Din was a different person, was blind who was also alive. Upon the death of Fazal Din his legal heirs who are respondents Nos.2 and 3 reiterated the earlier written statement filed alongwith the petitioners, Abdul Haq son of Fazal Din respondent No.5 submitted a separate written statement, wherein, he asserted himself to be the son of Fazal Din. As would be apparent from the above narration the real point of controversy between the parties is the identity of respondent No.1 and in such a situation, the question of onus shall assume secondary importance. It would be the preponderance of evidence that shall decide the issue.

14. The entire evidence both oral and documentary has been examined with the assistance of the learned counsel for the parties. The cumulative of Falak Sher P.W.2, Muhammad Sadiq P.W.5, Siraj Din P.W.6 and Abdul Haq plaintiff P.W.7 proves that all these witnesses are real brothers inter‑se being sons of Chiragh Din. These witnesses are also consistent in stating that Abdul Haq plaintiff is also known as Umer Din. Their evidence is further corroborated by the statement of P.W.3 Noor Muhammad who confirmed the relationship of the above mentioned brothers inter se. Even this witness confirms that Abdul Haq plaintiff is also known as Umer Din. Another feature of the oral evidence produced by the plaintiff/respondent No. 1 is that they disprove that Chiragh Din was the brother of Fazal Din. This fact demolishes the contention of Fazal Din deceased according to which the gift in his favour was allegedly made by the Abdul Haq son of Chiragh Din who was his paternal nephew. The documentary evidence produced by the plaintiff also confirms that the suit land was originally transferred in favour of Abdul Haq son of Chiragh Din. A reference to Exh.D.1 to Exh.D.4 would show that Falak Sher, Siraj Din, Umer Din and Shah Muhammad are the sons of Chiragh Din. Reference to Exh.D.7 and Exh.D.8 also helps in ascertaining the identity of Abdul Haq plaintiff as being the son of Chiragh Din. For facility of reference, Exh.D.7, which is the statement of Fazal Din is reproduced as under:‑‑

15. On the other hand, the contention made in the written statement that the gift in favour of Fazal Din was made by Abdul Haq who was blind has not been proved on the record. The defendants asserted that the said blind Abdul Haq was alive. His non‑production in evidence shall raise adverse presumption against the defendants. It is further noticed that the only other Abdul Haq who is ascertainable from the material on the record is respondent No.5 who is admittedly the son of Fazal Din.

16. Exh.D.7 and Exh.D.8 are copy of proceedings recorded in an earlier similar dispute between the parties. From a perusal of these two documents, it is ascertained that Abdul Haq who was son of Chiragh Din had also contributed in the payment of instalments of the suit‑land and Abdul Haq son of Fazal Din had nothing to do with the same. Notwithstanding the placing of onus of issue No. 1 upon the plaintiff, it was essential for the defendants to prove the gift in favour of Fazal Din in order to successfully lay claim to the suit property. Mutation No.43 evidencing gift, in favour of Fazal Din describing him to be the real paternal uncle of Abdul Haq son of Chiragh Din is belied .by the evidence discussed above. The identification on Mutation No.43 is said to be made by Muhammad Sadiq son of Chiragh Din. This very witness had appeared as P. W.5 and has controverted the factum of gift. It is also worthy of note that both mutations i.e. Mutation No.42 whereby land was entered in the name of Abdul Haq son of Chiragh Din and the disputed Gift Mutation No.43 have been attested on the same day.

17. From a perusal of evidence, the appreciation by the material on the record carried out by the Appellate Court is found to be a correct exercise of jurisdiction. The Appellate Court acted in accordance with the principle of preponderance of evidence anti arrived at a logical conclusion. Resultantly, there is nothing on the record which could pursuade this Court td take a view different from one expressed by the learned Appellate Court. The ownership of the plaintiff/respondent No. 1 has been proved and the assertion of a valid gift from the plaintiff in favour of Fazal Din having not been established, the suit of the plaintiff/respondent was rightly decreed by the Appellate Court. There is no merit in this civil revision which is hereby dismissed. Parties to bear their own costs. Revision dismissed. Q.M.H./M.A.K./M‑1182/L