Gul Shah Jan etc Vs Deputy Commissioner/Collector Karak etc

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JUDGEMENT SHEET

IN THE PESHAWAR HIGH Cot]RT' BAI\N[U BENCH tJudicial DeParffnenfl

C.R. No. 87-8/2025

JTIDGEMENT

Gul Shah Jan etc.

versus Deputy Commissioner/Collector Karak etc' Date of hearing: 23.06.2025

For petitioners: Mr. UmetDarazKhattak, advocate' For respondents: Nemo (in motion).

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Petitioners have challenged the

judgment and decree of learned Additional District Judge-III, Karak dated 05.03.2025, whereby the appeal filed by the plaintiffs (petitioners herein) was dismissed, consequently the judgment and decree of the learned Civil Judge-II, Karak dated 29.04.2023 was maintained.

2.Significant facts of the instant petition are that the petitioners instituted a suit for declaration challenging therein the validity of sale mutation No. 137 dated 16.1 I .1936, by two owners Adamd Khan s/o Behram Khan and Juma Khan s/o zabta Khan (acting through a power of attorney) regarding landed property bearing Khasra No.38 (presently No.56) measuring36-Kanals and l\-Marlas in the revenue estate of Mauza Khazhobi Tehsil Banda Daud shah District Karak;

that the above referred mutation is result of fraud and

misrepresentation of defendants with the collusion of revenue officials based on a forged Rozttamcha No' 362 dated 11.06.1936, hence, is liable to cancellation and incorporate the names of the plaintiffs as owners while that of defendants as such may be deleted from the ownership column' In addition all the subsequent mutations thereto were also sought to be cancelled and the plaintiffs have also asked for possession ofthe suit property; that defendants were asked for transfer of the property in the names of plaintiffs but proved as futile exercise, hence, the suit was filed' Suit was contested through filing written statement by the defendants No. 2 to 6 while legal heirs of defendant No. 7 did not tum up I despite service, thus, were proceeded against ex-parte' Similarly, defendant No.l was also proceeded against ex- parte. After framing of certain issues, and on conclusion of evidence learned trial court through judgment and decree dated 29.04.2023 dismissed the suit of petitioners/plaintiffs, being aggrieved petitioners had filed an appeal which too was dismissed on 05.03.2025, thus, the concurrent findings of both the courts below have been assailed by the through the instant petition.

3.Arguments of learned counsel for the petitioners heard and the available record perused carefully with his able assistance

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4.In the instant case the petitioners/plaintiffs in support of their case produced Patwari Halqa (PW-l) and ADK (PW-2) while their attorney Gul Sha Jehan (PW-3). The above referred revenue officials produced certain revenue record pertaining to the suit mutation No.137 and placed its copies on record. Bare perusal of the revenue record so placed on file reveals that the petitioners remained unsuccessful in proving the mutation No. 137 was result of fraud or that the original owners did not execute the sale. The mutation No.137 being attested way back in the year 1936 is about a 90 years old documents, so presumption of correcfiress is attached to itula Il7 of the Qanun-e-shahadat Order, 1984, while the burden to rebut the same lies on the shoulders of petitioners which they did not discharge. The petitioner also failed to produce d any evidence in order to show that either the original owlers were executed before attestation of the suit mutation or the power of attorney was invalid. Hence, the petitioners could not succeed to establish on record through confidence aspiring documentary or oral evidence that the mutation was void or illegal.

5.Moreover, the petitioners also failed to furnish any credible evidence in shape of court record or death certificate in order to prove the exact date of their execution which could suggest that the original owners Adam Khan and Juma Khan were executed before attestation of the mutation in question.

Though in the order of Teluildarlattpsting officer there is mentioned that the original owners had been executed, but this fact has not been proved through cogent and independent evidence. No fraud whatsoever has been pointed by the petitioners. Therefore, mere allegation of fraud and misrepresentation are not sufficient for cancellation of about 90 years old mutation.

6.It is reflected from record that the mutation in question was attested by attorney Niazmanna on the basis of power of attomey which was executed in her favour by the original owners Adam Khan and Juma Khan, however, the petitioners only assailed the mutation in question and did not challenge the power of attomey on the basis of which Mst. Niazmanna was authorized and she did so. No evidence, in order to prove the power of attomey as forged or invalid was produced by the petitioners. In addition, as provided u/s 54 ofthe Transfer of Property Act, 1882, the pre-requisite of the sale are offer, acaeptance and valid consideration, but in the instant case the petitioners did not question the sale transaction rather only the mutation was challenged, as the petitioners did not furnish any evidence revealing that the sale consideration was not paid or the sale was otherwise invalid. The title derives from sale transaction while the petitioners could not prove that sale transaction did not take place. It is by now well settled that mutation is mere a fiscal record and do not confer title rather

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the tile is ascertained by the actual sale transaction and the parties impugning the mutation is under obligation/burden to prove that no sale took place, hence, the petitioners failed to discharge their burden of proof.

7.Now tuming to another aspect of the present case, admittedly, the mutation in question was attested way back in the year 1936 while on one hand the legal heirs of the original owners who were minors at the time of attestation of mutation did not question the mutation after attaining the age of majority in their life time, and on the other hand, predecessors of petitioners kept mum for a considerable long period of time consisting is about 88/89 years, thus, the petitioners are stopped ula ll4 of the Qanun-e-Shahadat { Order, 1984.

f 8. The limitation Act, 1908 provide a period of limitation for instituting a declaratory suit is six years, while the mutation in question was attested on 16.11.1936. The petitioners filed the instant suit challenging the mutation in question with a considerable unexplained delay of about 80 years, hence, the suit of petitioners is miserably hit by law of limitation. The Hon'ble Supreme Court of Pakistan in plethora of judgments held the limitation a substantive law that extinguishes the right to sue if the suit is not filed within prescribed time. In view of the above discussion, the

concrrrent findings so recorded by both the trial and the appellate courts vide their impugned judgments are found to be based on proper appreciation of evidence and sound reasoning.

g. Apart from the above, impugned are the concurrent findings of fact recorded against the petitioners which do not call for any interference by this Court in exercise of its revisionat jurisdiction in absence of any illegality or any other error of jurisdiction. Ret: (2006 SCMR 1304). (2007 SCMR

920.and (2014 SCMR 1469). Thus, in view of the above discussion, the instant petition being without any merit is hereby dismissed in liminie.

Announced.

* Imranullah PS* -Sd- Judge

JUDGE

(S.B) Hon'ble Mr. lustice Abdul Fayaz

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