Mst. Waziran Bibi Vs Khalil Ahmad etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Civil Revision No.117-D of 2023 with C.M.No.167-D of 2023

Mst. Waziran Bibi and two others Versus Khalil Ahmad and 11 others

JUDGMENT

For petitioners: Muhammad Yousaf Khan, Advocate.

For respondents: Mr. Zain ul Abidin Afridi, Advocate and Mr. Inamullah Khan, Asstt: A.G.

Date of hearing 17.9.2025

INAMULLAH KHAN, J.- Through this single judgment, I propose to dispose of instant C.R.No.117-D of 2023 and C.R.No.119-D of 2023 as both the petitions are the outcome of one and the same judgment and decree dated 18.9.2023 passed by learned Additional District Judge-I, D.I.Khan and common question of law and facts is involved therein.

2.The brief facts giving leading to the instant petitions are that Mst. Waziran Bibi and two others (petitioners) filed a suit against Khalil Ahmad and others (respondents) for declaration and permanent injunction to the effect that they are the legal heirs of their predecessor namely Allah Bakhsh and are equally entitled to their shari shares in the suit property, detailed in the heading of the plaint, however, they have been deprived of their shares

and mutations No.2492 dated 30.12.1993, 3864 dated 20.7.2000, 4416 dated 28.4.2003 and 6503 dated 24.11.2009 have fraudulently been attested in the names of respondents.

3.The suit was contested by the respondents by submitting their written statement. The learned trial Court framed issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing arguments, the learned Civil Judge- III, D.I.Khan, vide judgment and decree dated 23.6.2022, decreed the suit of petitioners as prayed for.

4.Aggrieved from the judgment and decree dated 23.6.2022, Khalil Ahmad and others (respondents No.1 to

7)filed an appeal. The learned Additional District Judge-I, D.I.Khan, accepted the appeal, set aside the judgment and decree dated 23.6.2022 of learned trial Court and dismissed the suit of petitioners.

5.Dissatisfied with the judgment and decree dated 23.6.2022, the petitioners have filed C.R.No.117-D of 2023, whereas Aurangzeb (respondent No.6) has filed C.R.No.119-D of 2023.

6.I have heard the arguments of learned counsel for the parties and have gone through the record with their assistance.

7.It is the stance of petitioners that the suit property was the legacy of their predecessor namely Allah Bakhsh and after his death, the petitioners and the private respondents being legal heirs of deceased, became owners of the suit property, but a month prior to the institution of suit, they came to know that gift mutations No.2492 dated 30.12.1993, 3864 dated 20.7.2000, 6503 dated 24.11.2009 have been entered and attested in favour of respondents and similarly, sale mutation No.4416 dated 28.4.2003 on behalf of respondent No.1 in favour of his wife (respondent No.7) has also been attested which are fraudulent just to deprive the petitioners of their shari shares in the legacy of their father.

8.It is an established principle of civil dispensation of justice that generally, the initial burden to prove a claim, is on the party seeking the aid of the Court, but this ‘onus of proof’ shifts and oscillates, but once the parties have adduced their respective evidence in support of their claims, then it is ‘preponderance of evidence’, which rules the scale of relief. It is only when the Court deciding the Lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision. The august apex Court has cast the burden of proof upon the ‘beneficiary’ of the mutation to prove the transaction, when the genuineness of

the same is challenged. The most recent and authoritative judgment in this regard is noted in the case of Muhammad Iqbal and another. Vs. Mukhtar Ahmad through L.Rs (2008 SCMR 855) , wherein it was held:-

“Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction.”

9.In the instant case, it is admitted position on record that the parties are the legal heirs of Allah Bakhsh who was the sole owner of the suit property before attestation of gift mutations. It is also admitted that predecessor of the parties remained alive for 21 years and after execution of first gift mutation in 1993, died in the year 2014. The petitioners in their plaint have alleged fraud and collusion in attestation of gift mutations, therefore, initial burden was on them to prove that how, when and who committed fraud and in what mode and manner, however, the petitioners failed to bring on record any evidence in support of alleged fraud.

Moreover, during evidence, the petitioners did not appear before the learned trial Court to substantiate their plea regarding alleged fraud, rather recorded their statements through attorney Ikram ul Haq who too remained silent in

this respect, rather he admitted the execution of impugned gift mutations by the predecessor himself. Similarly, Tahir Nawaz (PW-4) also did not utter a single word regarding the alleged fraud committed by the respondents at the time of execution of impugned gift mutations. The petitioners, in para-5 of their plaint have also alleged that in case the mutations are found correct, even then the donor was having no right to gift all the property to the respondents depriving the petitioners of their shari shares. These averments adversely reflect on the cause of petitioners and in a way they admit the attestation of these mutations.

10.On the other hand, DW-7 an DW-8 in their statements before the Court categorically substantiated the transactions of all the impugned gift mutations regarding offer by the donor, its acceptance by the donees or on their behalf by DW-7 and delivery of possession with dates and measurement of gifted property. Similarly, Muhammad Bakhsh, then then Girdawar Circle (DW-1) has not only verified his signature and attestation of mutation No.2492, but also verified the signature of the then Patwari Halqa namely Rustam. He also verified the signature of the then attesting Officer namely Khuda Bakhsh, Naib Tehsildar.

Khuda Bakhsh, Tehsildar (DW-2) also verified the attestation of mutation No.6503 in open gathering. He also deposed that the donor as well as the witnesses put their thumb impressions and signatures on the mutations in his

presence. Hafiz Abdul Aziz (DW-9), one of the attesting witness of mutation No.6503 fully supported the attestation of mutation in his presence and the presence of other witness Ghulam Qasim by predecessor of the parties in favour of donees. Haji Rab Nawaz (DW-10) also verified his signature and signatures of donor and other attesting witness Muhammad Tariq on mutation No.3864 dated 20.7.2000. Thus the respondents have tried their best to examine the alive witnesses whereas signatures of dead witnesses were verified from their sons.

11.The record further indicates that respondents Ghulam Jillani and Aurangzeb though have filed cognovits but both of them being beneficiaries of impugned gift mutation No.6503 could not explain as to how and why the said mutation was entered and attested in their favour.

Further, Aurangzeb respondent further transferred his share of 12 kanal land to one Muhammad Jalal vide sale mutation No.8535 dated 11.7.2019 which shows that they have joined hand with the petitioners to get more benefit in case of success of the suit of petitioners. The donor in his life time did not challenge the mutations though he remained alive for 21 years. The impugned mutations were incorporated in the revenue record since its attestation, therefore, presumption of truth is also attached to the same unless rebutted by cogent and confidence inspiring evidence. Likewise, the possession of the suit property is

admittedly with the respondents i.e. beneficiaries of the gift mutations.

12.The learned counsel for the respondents argued that the suit of the petitioners was hopelessly time barred.

Perusal of the record reveals that the impugned mutations were attested in the years 1993, 2000 and 2009, whereas the suit was filed on 30.5.2016 after 23 years of first gift mutation, 16 years of second gift mutation and seven years after third gift mutation. The petitioners alleged in their plaint that they got knowledge of impugned gift and sale mutations one month prior to the institution of suit, but neither in their plaint nor in evidence, they alleged that their father was not aware of the impugned mutations and thus could not challenge the same in his life time. It is also not the case of petitioners that by means of fraud, the respondents had kept away their father from the knowledge of his right to challenge the impugned mutations. In such circumstances, the date of knowledge of the father of the parties and not the petitioners was the starting point for computing the limitation period of six years. The petitioners waited for the death of their father and after his death, challenged the impugned gift mutations, thus suit of the petitioners was beyond the period of limitation as provided under Article 120 of the Limitation Act, 1908.

Reliance in this respect is placed on the case of Mst.

Faheeman Begum (deceased) through L.Rs and others.

Vs. Islam-ud-Din (deceased through .Rs and others (2023 SCMR 1402) wherein it was held that:-

“Moreover, the mutation in dispute was executed on 29.12.1981, whereas the suit was instituted on 03.05.1997, which was badly barred by limitation.”

In such circumstances, the learned appellate Court committed no illegality or material irregularity or non- reading or misreading of evidence while accepting the appeal of respondents, which could call for interference by this Court in exercise of its revisional jurisdiction.

13.For the reasons mentioned above, both the petitions being bereft of merit and substance are hereby dismissed, with no order as to costs.

Announced. Sd/------ Dt:17.9.2025. JUDGE Habib/*

(SB)

Hon’ble Mr. Justice Inamullah Khan