2007 PLP 2941 (YLR)

SYED HAMID ALI SHAH, J.

Chiragh Din petitioner through the suit for declaration sought cancellation of .the exchange mutation regarding property in dispute. Petitioner asserted in the plaint that respondent No.1 Bakhat Bhari got the exchange mutation No.117 dated 9-2-1993 and mutation No.308 dated 31-7-1993 sanctioned in league with respondents Nos.2 to 5 and the revenue staff. It was also asserted in the plaint that price of the properties subject matter of exchange were different and the land of higher value had fraudulently been exchanged with the land of a lesser value by committing fraud. Respondents contested the suit, filed written statement and do conclusion of the trial Court, learned trial Court vide judgment and' decree dated 19-5-2003 dismissed the suit of the petitioner. Appeal against the decree of dismissal met the same fate through judgment dated 16-10-2004, hence this petition.

2. Learned counsel for the petitioner has submitted that petitioner has alleged in the written statement that real transaction was not exchanged but sale and mutation of exchange were attested to avoid the threat of pre-emption. Learned .counsel has submitted that it is the case of the petitioner that transaction of exchange of land was invalid, therefore; onus to prove this issue lies on the respondents. Leaned counsel has submitted that neither revenue staff was brought to witness box to prove exchange mutation, nor the lambardar of the village was present at the time of attestation of the mutation. It was then contended that mutation .confers no right and case of Muhammad Akram and another v. Aitaf Ahmad" (PLD. 2003 SC 688) was referred to support this contention, Learned counsel has then submitted that mutation does not create title in favour of the party and in this respect relied upon the case of "Abdul Rahim and others v, Muhammad Hayat and others" (2004 SCMR 172'3), Learned counsel lastly .argued that the Courts below have reached on erroneous conclusion that the suit is barred by limitation while every new entry in the revenue record gives a fresh cause of action. The suit was filed within six years of the last entry in the record. Learned counsel in support of his version placed reliance on the case of "Rehman v. Yara through legal representatives and others", (2004 SCMR 1502).

3. Learned counsel for the respondents, on the other hand stood behind the impugned judgments and decrees and supported the concurrent findings of two Courts below with full vehemence.

4. Heard learned counsel for the parties and record perused.

5. Courts below while passing the impugned judgments and decree have examined the evidence of the parties and found that petitioner in para. 5 of the plaint had asserted that the exchange was result of fraud and respondent No.1 Mst, Bakhat Bhari being a clever lady had secretly got sanctioned the impugned mutation. No detail of fraud had been mentioned nor contents of para 5 of the plaint were corroborated in the oral evidence. Learned Courts found it beyond comprehension that simpliciter womenfolk of village had defrauded and the petitioner remained unaware of the mutation for about eight years. The Court examined other record and found that there was thumb mark in Roznamcha Waqati and a specific mention of the presence of petitioner before revenue authority on 31-1-1993. It is settled principle of law that specific instance. of fraud must be mentioned in pleadings and proved through cogent evidence. Both the elements are lacking A in the in suit case, Petitioner has himself asserted in para. 6 of the plaint that cause of action accrued to him on the day when impugned mutation was sanctioned. The suit was not brought within six years of mutation as stipulated in para. 6 of the plaint. The only witness produced by the petitioner is his nephew.

6. For the foregoing, concurrent findings of two Courts below do not call for interference as ho specific instance of misreading or non-reading of evidence has been pointed out. The petition has no force and is dismissed accordingly. M.H./C-20/L Revision dismissed.