2010 PLP 1872 (CLC)

ATTAULLAH KHAN, J.

Through, this revision petition, the petitioner has impugned the judgment and decree dated 28-1-2005 passed by learned District Judge, Bannu whereby he dismissed the appeal against the judgment and decree dated 26-6-2003 passed by Civil Judge-I, Bannu.

2. Brief facts are that the petitioners/plaintiffs filed a suit against respondents/defendants for declaration to the effect that they are owner in possession of the suit property and sale Mutation No.6534 attested on 8-10-1963 is wrong, against law, facts and without jurisdiction and ineffective upon their rights. They also prayed for permanent injunction restraining the respondents from interfering in the ownership of plaintiffs/petitioners. The averments in the plaint are that the suit property is the ownership of the plaintiffs and respondents Nos.1 to 3 in collusion with the remaining defendants fraudulently attested sale Mutation No.6534 on 8-10-1963. The suit was contested by the contesting defendants by filing written statement which gave rise to the following issues:-- ISSUES: (i) Whether the plaintiffs have got a cause of action? (ii) Whether suit of the plaintiffs is maintainable in its present form? (iii) Whether suit of the plaintiffs is within time? (iv) Whether plaintiffs have come to the Court with clean hands? (v) Whether suit of the plaintiffs is bad due to non-mis-joinder of necessary party? (vi) Whether plaintiffs are estopped to sue? (vii) Whether defendants are entitled to special costs under section 35-A, C.P.C. from the plaintiffs? (viii) Whether suit of the plaintiffs is properly valued for the purpose of court-fee and jurisdiction? (ix) Whether plaintiffs are owners in the disputed property upto 28 Kanals and 10 Marlas? (x) Whether Mutation No.6534 attested on 8-10-1963 was incorrectly and unlawfully attested with the connivance of Revenue Staff? (xi) Whether plaintiffs and their predecessor-in-interest have sold the disputed property to defendants Nos. 1 to 3? (xii) Whether plaintiffs are entitled to a decree as prayed for in para-A in the heading of the plaint? (xiii) Whether plaintiffs are entitled to a decree as prayed for in para-B in the heading of the plaint? (xiv) Whether plaintiffs are entitled to a decree as prayed for in para-Jeem of the heading of the plaint? (xv) Relief.

3. After recording the evidence and hearing the arguments of counsel for the parties, the learned trial Court vide its judgment and decree dated 26-6-2003 dismissed the suit of the plaintiffs. This judgment was assailed in appeal before the Appellate Court which too dismissed the appeal and upheld the above mentioned judgment and decree, hence this revision petition.

4. The learned counsel for petitioner argued that there is no proof provided by the defendants that the suit mutation is attested without fraud and mala fide intention. He added that according to the evidence produced by the plaintiffs, they have specifically established their ownership. According to him the onus was on the defendant to prove that mutation was attested correctly and without fraud.

5. The main dispute in this case is as to whether the plaintiffs have sold the property to the defendants concerned through Mutation. No.6534 attested on 8-10-1963 or not. The plaintiffs have produced a number of witnesses but there is no substantial piece of evidence to favour that the mutation in dispute is fraudulent and that the property has not been sold by the plaintiffs. For instance, the statement of P.W.5, who was the identifier of Mutation Exh No. 2/1. He has stated in examination-in-chief that the mutation was not signed by him as identifier. It was also stated by him that he does not remember as to whether the said mutation was attested on his identification or not. In my opinion this is no evidence and cannot be taken into consideration because in cross-examination he has taken a different stance. According to his cross-examination, previously the signature or thumb impression of an identifier was not necessary on the mutation and used to be attested on verbal identification of the identifier. The practice of taking signature or thumb impression of an identifier on the mutation is started some years back and prior to this it was not necessary. He has also stated that he cannot say that the mutation was attested fraudulently or not. In other words he has not denied the attestation of impugned mutation. In my opinion this portion of his statement is sufficient to discard the claim of the plaintiffs. The special attorney of the plaintiff namely Allah Khan who is one of the plaintiffs, appeared as P.W.2 and testified that he does not know as to when the disputed mutation was attested. He has also admitted it correct that the suit property is in possession of the defendants for the last 55 years. Other admission is that till today the suit property is in possession of legal heirs of Muhammad Gul. This admission is negation of and contrary to the contention of the plaintiffs raised in the plaint that they are owners in possession of the suit property. This is contradictory statement. Other witnesses, of the plaintiffs have also stated that the suit property is in possession of the defendants. None of the plaintiffs witnesses has stated that the mutation in question was fraudulently attested and that the suit property was not sold by plaintiffs. The possession of defendants also finds support from khasra girdawri placed on file as Exh.PW 1/DX. Normally the plaintiff is burdened to prove his plaint. In this case though fraud has been alleged in respect of the suit mutation even then some liability lies jointly on the part of the plaintiffs also to prove it because they have alleged and it is their duty to discharge burden.

6. On the other hand defendant produced evidence in support of their 'claim that the mutation was entered and attested correctly. Haji Rahmzad appeared as P.W.3. According to whom, the mutation was attested in the name of Muhammad Gul and Rahim Gul in "jalsa-a-aam" and since then defendants are in possession. Two persons namely Muhammad Gul and Rahim Gul were his uncle and they were known to him. According to cross-examination, the uncle of Allah Khan, petitioners was present at the time of attestation of mutation. Thus the defendants have discharged their burden in succeeding to prove that they purchased property in dispute from the plaintiff through a valid mutation.

7. In view of my above discussion, no fraud or illegality has been established by the plaintiffs/petitioners in the attestation of disputed mutation. Their suit was correctly dismissed by both the Courts below. There is no illegality, non- reading or misreading of evidence or jurisdictional error to justify interference hence, the petition is dismissed, leaving the parties to bear their own costs. H.B.T./236/P Petition dismissed.