2019 PLP 1337 (YLR)

SYED MUHAMMAD ATTIQUE SHAH, J.

The instant revision petition has been filed by the petitioner against the impugned judgment and decree dated 07/06/2008 passed by learned Additional District Judge-III, Haripur, whereby, his Appeal was dismissed against the judgment and decree dated 20.11.2006 passed by learned Civil Judge, Haripur vide which the suit of the petitioner was dismissed.

2. Brief facts leading to filing of present revision petition are that the petitioner brought a suit for declaration and permanent injunction against the respondents in the court of Senior Civil Judge Haripur, wherein, the learned trial court summoned the respondents, who appeared and contested the said suit by submitting their written statement. Later, after framing issues arising out of the divergent pleadings of the parties the learned trial court recorded evidence of the parties and after hearing arguments of the learned counsel the suit of the petitioner was dismissed vide impugned judgment and decree dated 20/11/2006. The said findings of the leaned trial court were challenged by the petitioner before the learned appellate court, who vide his judgment and decree dated 07/06/2008 dismissed the said appeal, hence, the present revision petition.

3. Facts of the case as narrated in the plaint are that Muhammad Zaman father of the petitioner vide mutation No. 2039 attested on 08.04.1993 gifted land measuring 106 Kanals to the respondents. Later the petitioner impugned the said gift mutation in the present suit while challenging the validity of the said mutation on the ground that the same mutation was attested fraudulently by respondents as Muhammad Zaman has never appeared before the revenue officer for its attestation. Further stated that the said Muhammad Zaman was hundred years' old person and he was not capable of understanding, therefore the impugned mutation is liable to be struck down. The respondents were summoned by the learned trial court who appeared and submitted their written statement by taking the plea that earlier vide mutation No. 7070 attested on 28/01/1981 (Ex. PW-5/2) the said Muhammad Zaman gifted property measuring 68 Kanal 14 Marlas to the petitioner being his son.

4. Subsequently, said Muhammad Zaman gifted the disputed property measuring 106 Kanals vide mutation. No. 2039 attested on 08/04/1993 to the respondents. He further stated that Muhammad Zaman himself entered the said mutation and appeared before the revenue authorities for its attestation. Later, the learned trial court recorded statement of PW-1 Patwari Halqa who brought on record of the case revenue record (Ex. PW-1/1 to Ex. PW-1/4). He also placed on record Daily Diary No.303 dated 13/02/1993 (Ex. PW-1/D-1). PW-2 (SOK) appeared before the court, recorded his statement. He placed on record copy of the mutations (Ex. PW-2/ D-1, 2/D-2 and 2/D-3). He also placed on record copy of mutation No. 7070 attested on 28/01/1981 as (Ex.PW-2/D-4). Later, attorney of the petitioner recorded his statement as PW-3. He reiterated the facts mentioned in his plaint and prayed for acceptance of his suit. PW-4 appeared and recorded his statement in support of the case of the petitioner. Later, SOK appeared as DW-1 who produced the original mutation No. 2089 attested on 08/04/1993. DW-2 Patwari Halqa appeared and recorded his statement and placed on record Ex. PW-2/D-1, the disputed mutation and stated that he himself entered the said mutation. DW-3 retired revenue officer recorded his statement and stated that he attested the said mutation in presence of Muhammad Zaman Donor and witnesses. DW-4 appeared in support of the disputed mutation and stated that the same has been attested in his presence. Subsequently, attorney of respondent appeared and recorded his statement as DW-5 and supported Ex. PW-2/D-1. Learned trial court after recording evidence and hearing arguments of the parties dismissed the suit on 20/12/2006 and the appeal of the petitioner against the said judgment was also dismissed by the learned appellate court vide its impugned judgment and decree dated 07/06/2008.

5. From the above stated facts, it transpired that the petitioner and respondents are brothers and sisters inter se. They are legal heirs of Muhammad Zaman. It is also evident from record of the case that the said Muhammad Zaman vide mutation No. 7070 attested on 28/01/1981 (Ex. PW-2/D-4) gifted landed property measuring 68 Kanals 14 Marlas to the petitioner. Later, said Muhammad Zaman vide mutation No. 2039 dated 08/04/1983 gifted his property measuring 106 Kanals to his three sons and two daughters (present respondents). The case of the petitioner was that the mutation in favour of the respondents was illegal and fraudulent as the said Muhammad Zaman was aged about 100 years and he never appeared before the Patwari Halqa for entering of the said mutation nor he appeared before the Revenue Officer for its attestation. Thus, the said mutation being illegal and is therefore liable to be set-aside. However, PW-3 attorney of the petitioner categorically admitted the factum of earlier gift mutation in favour of petitioner, his father. He has also admitted it correct that his father before two months prior to the attestation of disputed mutation raised an objection before the revenue officer regarding the mental health of the donor, however, later, the said mutation was attested by the revenue officer. He also admitted it correct that petitioner lives in village and he is in good health but did not opt to appear before the trial court in support his case. It is also evident from record of the case that respondents have produced DW-2 Patwari Halqa who entered the said mutation, who categorically admitted that Muhammad Zaman himself entered the said mutation. The respondents have also produced revenue officer before the court who attested the said mutation in presence of donor Muhammad Zaman, Muhammad Ishaq DW-4 and Abdul Rasheed, witnesses of the said mutation. DW-4 appeared and recorded his statement while stating that mutation in question was attested in his presence. Later, DW-5 attorney of the respondents appeared and recorded his statement by supporting the case of respondents. He produced the death certificate of Abdur Rashid (Ex.DW-5/3) another witness of mutation. Likewise, he produced Medical Certificate of said Muhammad Zaman donor (Ex.DW 5/5).

6. From the above stated facts and evidence, it clearly transpired that Muhammad Zaman (Donor) who was the predecessor in interest of the parties, in his lifetime vide mutation No. 7070 attested on 28/01/1981 and Mutation No. 2039 dated 08/04/1983 gifted his entire property to his L.Rs. and left nothing beyond. Apart from the above, the respondents has produced the Patwari Halqa who entered the said mutation as well as the revenue officer who attested the said mutation along with the witness Muhammad Ishaq DW-4 of the questioned mutation, whereas the death certificate in respect of other witness Abdul Rasheed has also been placed on record as Ex. DW-5/3. Moreover, it is admitted from the evidence available on record of the case that the petitioner was well in knowledge of the disputed mutation, however, he challenged the same in the present suit on 01/10/1999 which clearly shows that the suit of the petitioner was badly barred by time, as limitation for such like suit is governed by Article 120 of the Limitation Act 1908 which provides six years from the date of cause of action and in the case in hand the petitioner were having knowledge of the same before its attestation, therefore, he was required to file the present suit within the period of limitation provided under Article 120 of Limitation Act, 1908, from the date of attestation of the said mutation.

7. Thus, keeping in view, the above stated facts, circumstances and the discussion made thereupon, this Court reached to the conclusion that the concurrent findings of facts rendered by the learned lower courts below are based on proper appreciation of evidence and material available on record of the case, therefore the same needs not to be interfered with by this court in its Revisional jurisdiction under section 115, C.P.C. Hence, the present revision petition being bereft of merits, thus the same is liable to dismissal, dismissed accordingly. ZC/24/P Revision dismissed.