2003 PLP 702 (MLD)

Mst. Nek Bibi and eight other petitioners, the successor‑in- interest of Mian Qutab Din, plaintiff, who filed Civil Suit No. 151/1 of 1980, have directed this revision petition against the judgment dated 16‑2‑1991 passed by the learned Additional District Judge, Sheikhupura, whereby he upheld the judgment and decree dated 29‑9‑1987 passed by Mr. Khalil Ahmad Anwar, Civil Judge, 1st Class, Ferozewala, District Sheikhupura, dismissing the plaintiff's suit.

2. Mian Qutab Din plaintiff filed a declaratory suit claiming to be owner‑in‑possession of 18 Marlas of land jointly in Khewat No.409, Khatooni No. 1597, Khasra No.225, situated in Mauza Sharaqpur as per Jamabandi for the year 1969‑1970. He described‑ the entries in the Revenue Record as false and incorrect. The defendants contested the suit and pleaded that the plaintiff after the private partition of land had alienated his entire holding by way of gift in favour of his son and he had absolutely no concern with the suit‑land. The defendants in their written statement raised certain preliminary objections as well, which led to the framing of the following issues:‑‑ ISSUES: (1) Whether the plaintiff is owner in possession of the suit property? OPP. (1‑A) Whether this Court lacks jurisdiction to adjudicate upon the matter in question? OPD. (1‑B) Whether the suit is not maintainable in its present form? OPD. (2) Whether the entries in the Register Haqdaran Zamin for the year 1976‑1977 regarding the suit‑land are incorrect, illegal, fictitious and collusive? OPP. (3) Whether the defendants are entitled for special costs under section 35‑A of C.P.C.? OPD. (4) Relief.

3. The learned trial Court after recording the evidence decided all the issues against the plaintiff and dismissed the suit vide judgment and decree dated 29‑9‑1987. The plaintiff feeling dissatisfied preferred an appeal and during the pendency of the appeal, he moved an application seeking permission to place Mutation No.4649 dated 8‑1‑1968, according to which, the plaintiff had inherited 1/6 shares alongwith Mst. Zainab Bibi from the inheritance of his real uncle Gul Muhammad, who had no male issue from his wife Mgt. Zainab Bibi. The prayer for additional evidence has been turned down by the learned Appellate Court, firstly on the ground' that no reasonable explanation was offered for the omission: and secondly on, the ground that the authenticity of the mutation was not above board as the same was never given effect in the Revenue Record.

4. Learned counsel for the petitioner contended that the Revenue Record is evidence of the fact that the petitioner/plaintiff owned 18 Marlas of land in Khewat No.226, which he had alienated‑in favour of his son by way of gift, which is not subject‑matter of the suit. He submitted that the suit relates to the land situated in Khasra No.6225, which the plaintiff inherited through Mutation No.4649 alongwith Mst. Zainab Bibi from his uncle Gul Muhammad as is evident from the Jamabandi fort the year 1969‑1970. Learned counsel for the petitioner further stated that the plaintiff further inherited 18 Marlas of land from his father in Khasra No.226.

5. Learned counsel for the respondents contended that the plaintiff to the suit had not disclosed the basis of his right, as such he could not be permitted to produce a document; which he had not relied upon by way of additional evidence.

6. I have considered the arguments and have perused the record. The acquisition of proprietary right of inheritance are not dependent on mutation in the Revenue Record; therefore, the mutation itself does not create any right, so its authenticity cannot be doubted simply because it was not given effect in the Revenue Record. It is true that the plaintiff has not based his claim on this document but the fact remains that he has claimed ownership of 18 Marlas of the land situated in Khasra No.225, which cannot be denied simply because he had not relied upon the document, which he sought to produce by way of additional evidence. I am of the considered view that the mutation of inheritance pertained to substantial rights of the plaintiff and has direct bearing on the merits of the suit; therefore, the learned Appellate Court should have allowed the application and remanded the case back to the trial Court for a fresh decision after allowing the defendants to produce evidence in rebuttal; therefore, the order of the learned Additional District Judge refusing to grant permission to produce additional evidence does not advance the cause of justice as such it is illegal.

7. As a consequence of the above discussion, I accept this revision petition and set aside the impugned judgments and decrees passed by the Courts below. The case is sent back to the learned District Judge, Sheikhupura, who shall entrust the same to the learned Senior Civil Judge or any other Judge for a fresh decision after admitting the said mutation in evidence and allowing an, opportunity to the defendants to adduce evidence in rebuttal. H.B.T./N‑271/L Order accordingly.