2005L4578 (PLP)

The concurrent judgments and decrees dated 31-1-1993 of the learned trial Court and 26-3-1996, of the learned first Appellate Court, dismissing the suit for declaration and injunction of the petitioners, have been assailed in this revision petition which arises out of the following circumstances.

2. On the death of one Sardar Khan, his landed property was mutated in favour of Mst. Fazal-un-Nisa, his widow, Ali Muhammad, the predecessor-in-interest of respondents Nos.1 to 5, Nazir Ahmed, respondent No.6 the two sons of the deceased, Mst. Siddiquan Bibi, respondent No.7 and Mst. Aziz Begum, the two daughters of the deceased. The widow and the two daughters of Sardar Khan, gifted their property in favour of their son and brothers which was attested vide Mutation No.590 on 30-7-1970 Mst. Aziz Begum, mother of the petitioners, died somewhere in 1979. On 6-2-1989, the petitioners filed a suit assailing the aforesaid mutation on the ground that it was got attested by presenting some other women before the Revenue Officer. The suit was contested, it was tried and vide judgment dated 3-6-1990, it was dismissed. However, on the appeal of the petitioners it was remanded vide judgment dated 10-3-1991. On remand it was again dismissed vide judgment and decree dated 31-1-1993 of the learned trial Court. The petitioners filed an appeal which was dismissed vide judgment and decree dated 26-3-1996.

3. The learned counsel for the petitioners contended that merely because Mst. Aziz Begum, the mother of the petitioners, had not challenged the mutation in her life time or that the petitioners had brought the suit after some years, did not establish the transaction of gift. He submits that in the matter of inheritance, the question of limitation was not relevant. Reliance was placed on Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC

1. It was next maintained that while entering and attesting the disputed mutation provisions of section 42 particularly subsections (7) and (8) of the Punjab Land Revenue Act, 1967 were violated. The mother of the petitioners was an old and illiterate lady and no independent advice was available. He further submitted that the report in the Rozenamcha Waqiati was allegedly recorded at the instance of the donors but it did not bear the signatures of any of the donors. He maintains that the onus of Issue No.1 was wrongly placed. According to him, it was the case of fraud and section 18 of the Limitation Act had the effect of saving the limitation.

4. On the other hand, the learned counsel for the respondents maintains that while the mutation was sanctioned on 30-7-1970, the suit was brought on 6-2-1989, after more than 18 years. The matter stands concluded by concurrent findings of fact of the learned two Courts which has duly been arrived at by taking into consideration the entire evidence. He next maintains that Mst. Fazal-un-Nisa, the widow, Mst. Siddiquan Bibi, the daughter of Sardar Khan along with Mst. Aziz Begum, were the donors. None of them had challenged the said mutation and the present suit was brought after more than 10 years of the death of Mst. Azizi Begum. He maintains that the petitioners had alleged fraud but no evidence was produced to substantiate the plea. Reliance was placed on Mst. Sahib Noor v. Haji Ahmed 1988 SCMR 1703.

5. The submissions made by the learned counsel for the parties have been considered. The learned two Courts took into consideration the entire evidence produced in the case. Not only no fraud was established in the matter of attestation of the disputed mutation but the evidence as to the transaction of the gift which produced was believed. The learned Additional District Judge, noted that there were three donors and there was no allegation in the written statement that the other two donors had not appeared before the Revenue Officer. It was further noted that the petitioners, who were lawful heirs of Mst. Fazal-un-Nisa, through their mother, did not challenge the gift made by Mst Fazal-un-Nisa, while Mst Siddiquan Bibi was alive who also did not challenge the gift. The allegation of the petitioners that their mother has been receiving the share of produce, was also considered. The only witness to prove this assertion was P.W.2, who was disbelieved. To prove the transaction, D.Ws.1 to 5 were examined and Nazir Ahmed, respondent No.6 appeared as D.W.6, Ashfaq Ahmed son of Mst. Siddiquan Bibi and her general attorney was examined as D. W.5. He affirmed making of the gift by the three ladies and acceptance of the same by them and that the mutation in question was duly attested on the identification of Ahmed Yar and Ghulam Rasul. It was further noted that Exhs. D.1 to D.5 show that the respondents were in possession of the disputed land since 1970. The long uninterrupted possession of the respondents raised "strongest presumption" that they were the rightful owners.

6. The contentions of the learned counsel for the petitioners have considered and in view of the findings recorded by the learned two Courts particularly the learned Additional District Judge, I do not find any merit in them. For attracting section 18 of the Limitation Act, fraud was required to be established. Perusal of the plaint shows that in para.10, it was not even averred as to how and when the disputed mutation came to the knowledge of the petitioners. On the death of their mother in 1979 they took no steps for getting the mutation of inheritance of her estate even entered and kept quite for 10 years before the suit was brought. As far as the judgment in Ghulam Ali's case is concerned, it applied to the case of co-sharers and after alienation through the disputed mutation by the three ladies, they were not left with any entitlement in the property of Sardar Khan because vide Mutation No.22 attested on 29-11-1964, the three ladies had earlier sold their property in favour of their respondents. (Mutation No.22 is the subject-matter of C.R. No.1845 of 1996 which has also been decided today). The question whether the evidence in support of valid attestation of disputed mutation should or should not have been believed is plainly beyond the scope of revisional jurisdiction. Accordingly, I find no merit in this petition which is, accordingly, dismissed in limine. M.I./R-49/L Revision dismissed.