2019 PLP 567 (SCMR)

MAZHAR ALAM KHAN MIANKHEL, J.

Civil Petition No. 522-L of 2018: This petition was clubbed with other Petitions i.e. C.P. No. 466-L of 2018 and C.P. No. 467-L of 2018 vide order dated 19.10.2018; that not only the parties in all the petitions are common but the question of law regarding inheritance is also common in all these petitions. No doubt parties in all the petitions are common but the question of inheritance is not common in all which is the matter in issue only in this petition, hence is being taken separately.

2. Mst. Ghulam Sakina Respondent herein had filed a suit for declaration by challenging certain mutations of inheritance of her predecessors by claiming her entitlement by way of inheritance. After conclusion of trial, her suit was dismissed by the trial court. Judgment and Decree of the trial court dismissing her suit was also upheld by the court of appeal but in the High Court concurrent findings of the two courts below were set aside at the request of learned counsel for the present Petitioners (respondents in the High Court) for having no objection on acceptance of civil revision. Such request was also accepted by the learned counsel for the Respondent and accordingly, the concurrent findings of the courts below were set aside. The Petitioners through instant petition for leave to appeal have questioned the consent order passed by the High Court at their own request. We at the very out set asked the learned counsel for the Petitioners as to how and under what law he can question a consent order that too passed on his request. He had no answer much less plausible to our query. The law on the subject is very much, settled that a judgment/order passed with consent of the parties cannot be challenged. Learned counsel for the Petitioners was unable to satisfy us in this regard, hence having no merits in the instant petition, the same is dismissed and leave is declined.

3. By way of this single order, we also intend to dispose of these civil petitions for leave to appeal i.e. C.P.466-L/18 and C.P.467-L/18 as follows:- CIVIL PETITION NO. 466-L/2018:

4. The Respondent herein being plaintiff in the main case had filed a suit for declaration by questioning a sale mutation No.380 attested on 25.5.1999 purportedly sanctioned in favour of present Petitioners (defendants). After conclusion of trial her suit was dismissed vide Judgment and Decree dated 31.7.2007 by Civil Judge 1st Class, Karor district Layyah but her appeal there-against was accepted vide Judgment and Decree dated 6.5.2009 by Additional District Judge, Karor district Layyah. Civil revision against the same filed by the present Petitioners was dismissed by learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan vide judgment dated 11.12.2017. Still feeling dissatisfied, the Petitioners have approached this court through instant petition for leave to appeal. CIVIL PETITION NO.467-L/2018:

5. The facts of this petition for leave to appeal regarding claim of the Respondent and its fate are identical to Civil Petition No.466-L/2018. The only difference in this case is that the bone of contention in this case was sale mutation No.612 attested on 29.07.1973 purportedly in favour of the present Petitioners.

6. The main contention of the learned counsel for the Petitioners in both the petitions was that since purchase of the land, the Petitioners are in physical possession of the same and they never paid any share of the produce to the Respondent or anyone else on her behalf. His further contention was that the marginal witnesses of both the mutations were not produced because they had died and the courts below fell in error of law by not accepting their stance.

7. Learned counsel for the Petitioners was heard and record of the case was perused. Perusal of record would reveal that the Petitioners were the beneficiaries of the alleged sales and as per settled law they were supposed to prove and establish the genuineness of sales in their favour. Evidence on behalf of Petitioners available on the record in both the cases is the only statement of one Zahoor Ahmed son of Ch. Ghulam Sarwar (son of one of the alleged vendees). Story coming from his mouth is nothing less than a hearsay. He himself is not the witness of the alleged transactions. No doubt mutation per se is not a document of title and meant for fiscal purpose only. To prove a transaction appearing/embodied in a mutation, a strong piece of evidence is required under the Qanun-e-Shahadat Order, 1984. Mere assertion that marginal witnesses of the mutations had died would not discharge the burden of a party. There is nothing to establish the death of said witnesses. Neither the revenue-official/officer were produced nor any person before whom the transaction of sale took place or before whom sale consideration was paid. There is no one who could have said that he knew the Respondent who had done away with her property by way of impugned sales. Perusal of impugned sale mutations, would be sufficient to hold that the same were shameful and fraudulent transactions. Mutation No.612 was entered on 10.9.1968. Statement of vendor was shown to have been recorded on 15.9.1968 but nothing on the record that whether any of the well-wisher of the vendor who being an illiterate lady was present at that time. Again nothing on the record as to why the attestation of mutation was delayed up till 29.7.1973; similarly, mutation No.380 was entered on 1.9.1968. After getting an order from Assistant Commissioner/Collector dated 19.5.1999 on the application of Petitioners, this mutation was got attested on 25.5.1999. Learned counsel for the Petitioners was unable to justify such a delayed attestation of mutations.

8. It has also come on the record that Respondent being only female child left the house of her father along with her mother on the demise of her father somewhere in 1954 and shifted to the house of her maternal grandfather who brought her up. The Petitioners being her real uncles also inherited the property of her father (their, real brother). The fact that they being in possession of the land can easily be understood but at the same time Respondent was also a co-sharer with them. So the principle that possession of one co-sharer is considered as possession of all the co-sharers would apply and the law of the land is very much settled that there would be no question of limitation against a co-sharer and every co-sharer is presumed 'to be in possession of every inch of the joint property.

9. Sum up of the above discussion is to dismiss the listed civil petitions having no sound/reliable cogent reasons to interfere with the impugned judgments with no order as to cost. Leave to appeal is declined. MWA/G-3/SC Petitions dismissed.