2024 PLP 890 (CLC)

S M ATTIQUE SHAH, J.

Through present petition, petitioners have called in question the judgments and decrees of both the learned courts below dated 17.11.2012 and 05.03.2013, whereby, their suit has been concurrently dismissed.

2. Brief facts of the case are that the petitioners brought a suit for declaration, permanent-cum-perpetual injunction and possession against the respondents before the learned Civil Judge-IV, Charsadda, which was contested by respondents through filing written statement, wherein, they raised various legal and factual objections. Learned trial court, after framing issues, recording pro and contra evidence and hearing learned counsel for the parties, dismissed the suit of petitioners vide judgment and decree dated 17.11.2012 against which they preferred an appeal, which was also dismissed by learned Appeal Court vide judgment and decree dated 05.03.2013. Hence, the instant revision petition.

3. Arguments heard and the available record perused.

4. According to the plaint, claim of the petitioners is that their predecessor namely, Muhammad Umar, who had five sons, namely Ghulam Haider, Muhammad Akbar, Mir Haider, Mir Nadir and; Alamgir and the latter two were died issueless and as such, they being the grand children of Muhammad Akbar are entitled to their shari share in the property of Mir Haider and; Mir Nadir and the entries in the revenue record in favour of respondents Nos.1 to 12 and the sale Mutation No.105, dated 07.01.1929 is wrong, illegal, ineffective and inoperative being against their rights.

5. Perusal of impugned judgment and decree of the learned Appeal Court reflects that the petitioners have already abandoned their main claim in the suit qua inheritance of Mir Nadir and Ghulam Haider, their grand uncles, who died issueless, having not been proved during trial and as such, the petitioners had only questioned the validity of Mutation No.105, dated 07.01.1929 (Ex.PW-1/20) vide which Mst. Bahrya (widow of Ghulam Haider), Mir Nadir, Mir Haider along with Mir Akbar sold the property measuring 09 kanals 01 marla to the sons of Lashkar Khan before the learned Appeal Court. Prime stance of the petitioners before the learned Appeal Court was that since their predecessor in interest namely Mir Akbar was minor at the time of attestation of impugned mutation, therefore, the sale mutation was illegal. In this respect, they produced the NIC of Mir Akbar as Ex.PW-2/1. Perusal of the same shows that it was issued on 07.08.1975 in which his age is mentioned as 50 years but no date of birth has been given. Neither the said NIC was annexed with the plaint nor produced from the proper custody nor any witness from the concerned department was produced in its support. Rather it was produced by PW-2 during his statement before the court. As such, the petitioners were miserably failed to prove the exact age of their predecessor in interest Mir Akbar qua their claim that at the time of attestation of impugned mutation their predecessor in interest was minor.

6. Be that as it may, the learned counsel for petitioners vigorously argued that impugned mutation No.105, dated 07.01.1929 (Ex.PW-1/20) is illegal being attested at the time when Mir Akbar, predecessor in interest of the petitioners, was minor and; therefore, the same is ineffective upon their rights. It is settled principle of law that a person who is aggrieved from any transaction, which was made during his minority can challenge it under the law within three years, after getting the age of majority. 2022 SCMR 877 Intelligence Bureau Employees Cooperative Housing Society through Secretary v. Shabbir Hussain and others. In the instant case, Mir Akbar, predecessor in interest of the petitioners, died way back in the year 1988, but he did not challenge the impugned sale mutation in his lifetime before any competent court of law, despite having full knowledge of the same, therefore, his legal heirs are precluded to challenge its validity after his death as it is settled that the legal heirs cannot challenge the validity of a mutation, which was not questioned by their predecessor in interest in his / her lifetime. PLD 2023 SC 362 Saadat Khan and others v. Shahid-ur-Rehman and others.

7. Moreso, the inheritance mutation of Mir Akbar was attested in favour of his legal heirs (petitioners) way back in the year 1991, but even after the said date, the petitioners remained silent for long 18 years and filed the instant suit on 19.07.2010, challenging therein, the sale mutation No.105 of the year 1929, which is also hopelessly time barred on this count.

8. So far as the veracity, authenticity and legal value of impugned sale mutation No.105, dated 07.01.1929 is concerned, undoubtedly, an attested mutation cannot be considered as a document of title but simultaneously, when an attested mutation is properly incorporated in the revenue record in subsequent jamabandies for a long period of time, then the presumption of truth is attached thereto unless and until rebutted through cogent, reliable and; confidence inspiring evidence. Record also shows that the impugned mutation was attested by the vendors in favour of sons of Lashkar Khan way back in the year 1929, which is still intact and reflecting in the revenue record, therefore, presumption of truth is attached thereto in terms of section 52 of the West Pakistan Land Revenue Act, 1969. 2010 SCMR 18 Muhammad Shamim v. Mst. Nisar Fatima.

9. Now coming to the question that as to whether the sons of Lashkar Khan had purchased the land in question from the ostensible owners through the impugned mutation and; the same was correctly incorporated in their names in the column of ownership in revenue record. Originally, Muhammad Umar (predecessor in interest of the petitioners) was owner and in possession of 101 Kanals of land, who had survived by five sons namely Muhammad Akbar, Ghulam Haider, Mir Nadir, Mir Haider and Alamgir and after his death, his legacy was devolved upon his children. Per revenue record the vendors i.e. Mst. Bahrya (widow of Ghulam Haider), Mir Nadir, Mir Haider and; Mir Akbar (son of Muhammad Akbar) at the time of attestation of impugned mutation were ostensible owners of sufficient inherited property from their predecessor. Such fact is evident from the statement of DW-2. Out of which, they sold out, land measuring 09 kanals 01 marla, to the sons of Lashker Khan against a sale consideration of Rs.430/- through the impugned sale mutation. In the given facts and circumstances, this court has no hesitation to hold that section 41 of the Transfer of Property Act 1882 is fully attracted to the case of the vendees and as such, they are entitled to the equitable protection available to them under section 41 of the ibid Act. 2022 SCMR 2130 Zakia Begum and others v. Nasir-ul-Islam Khan and others.

10. In view of the above legal and factual position of the case, both the learned courts below for their own reasons have rightly non-suited the petitioners through their concurrent findings which do not suffer from any illegality, material irregularity, misreading or non-reading of evidence warranting interference by this court in its revisional jurisdiction under section 115, C.P.C., which is otherwise, very narrow and; limited in its scope.

11. Accordingly, this petition being bereft of any merits stands dismissed. CMs are disposed of, accordingly. MQ/34/P Revision dismissed.