Shah Zaman Vs Painda Khan

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.109-A of 2008

JUDGMENT

Date of hearing.....................11/10/2017................................................... Appellant...(Shah Zaman etc) by Mr. Khurshid Khan, Advocate.............................................................

Respondent...(Painda Khan) by Mahbob Ahmed Khan.............. Advocate

SYED MUHAMMAD ATTIQUE SHAH, J:-

The instant revision petition has been filed by the petitioner against the impugned judgment and decree dated 07/06/2008 passed by learned Additional District Judge-III, Haripur, whereby, his Appeal was dismissed against the judgment and decree dated 20.11.2006 passed by learned Civil Judge, Haripur vide which the suit of the petitioner was dismissed.

2.Brief facts leading to filing of present revision petition are that the petitioner brought a suit for declaration and permanent injunction against the respondents in the court of Senior Civil Judge Haripur, wherein, the learned trial court summoned the

respondents, who appeared and contested the said suit by submitting their written statement. Later, after framing issues arising out of the divergent pleadings of the parties the learned trial court recorded evidence of the parties and after hearing arguments of the learned counsel the suit of the petitioner was dismissed vide impugned judgment and decree dated 20/11/2006. The said findings of the leaned trial court were challenged by the petitioner before the learned appellate court, who vide his judgment and decree dated 07/06/2008 dismissed his appeal, hence, the present revision petition.

3.Facts of the case as narrated in the plaint are that Muhammad Zaman father of the petitioner vide mutation No. 2039 attested on 08/04/1993 (Ex. PW-2/D-1) gifted land measuring 106 Kanals to the respondents. Later the petitioner impugned the said mutation in the present suit while challenging the validity of the same on the ground that the mutation was attested fraudulently by respondents as Muhammad Zaman has never appeared before the revenue officer for the attestation of the said mutation. Further stated that the said Muhammad Zaman an aged person of 100 years and he was not capable of understanding, therefore the said mutation is liable to be

struck down. The respondents were summoned by the learned trial court who appeared and submitted their written statement by taking the plea that earlier vide mutation No. 7070 attested on 28/01/1981 (EX. PW-5/2) the said Muhammad Zaman gifted the property measuring 68 Kanal 14 Marlas to the petitioner being his elder son. Later, the said Muhammad Zaman predecessor-in-interest of the parties gifted the disputed property measuring 106 Kanals vide mutation No. 2039 attested on 08/04/1993 to the respondents. They further stated that he himself entered the said mutation and appeared before the revenue authorities for its attestation.

Subsequently, the learned trial court recorded statement of PW-1 Patwari Halqa who brought on record of the case revenue record in respect of the disputed property (Ex. PW-1/1 to Ex. PW-1/4). He also placed on record Daily Diary No. 303 dated 13/02/1993 (Ex. PW-1/D-1).

PW-2 (SOK) appeared before the court, recorded his statement. He placed on record copy of the mutation (Ex.

PW-2/D-1, 2/D-2 and 2/D-3). He also placed on record copy of mutation No. 7070 attested on 28/01/1981 as (Ex. PW-2/D-4). Later, attorney of the petitioner recorded his statement as PW-3. He reiterated the facts

mentioned in his plaint and prayed for decreeing of his suit. PW-4 appeared and recorded his statement in support of the case of the petitioner. Later, SOK appeared as DW-1 who produced the original mutation No. 2089 attested on 08/04/1993. DW-2 Patwari Halqa appeared and recorded his statement and placed on record Ex. PW- 2/D-1, the disputed mutation and stated that he entered the said mutation. DW-3 retired revenue officer recorded his statement and stated that he attested the said mutation in presence of Muhammad Zaman. DW-4 appeared in support of the disputed mutation and stated that the he is one of the witnesses of the said mutation (Ex. PW-2/1) which has been attested in his presence. Later attorney of respondent appeared and recorded his statement as DW-5 while supporting the Ex. PW-2/D-1. Learned trial court after recording of the evidence and hearing the arguments of learned counsel for the parties, dismissed the said suit on 20/12/2006 and the appeal of the petitioner against the said judgment was also dismissed by the learned appellate court vide its judgment and decree dated

5.From the above stated facts, it transpired that the petitioner and respondents are brother and sisters interse.

They are descendants of Muhammad Zaman. It is also in the evidence that the said Muhammad Zaman vide mutation No. 7070 attested on 28/01/1981 (Ex. PW-2/D-

4)gifted landed property measuring 68 Kanals 14 Marlas to the petitioner. Later, the said Muhammad Zaman vide mutation No. 2039 dated 08/04/1983 gifted his remaining property measuring 106 Kanals to his three sons and two daughters (present respondents). The case of the petitioner is that the mutation in favour of the respondent is illegal and fraudulent as the said Muhammad Zaman was aged person of about 100 years. Moreover, he never appeared before the Patwari Halqa for entering the said mutation nor he appeared before the Revenue Officer for its attestation. Thus, the said mutation being illegal is liable to be set-aside. However, PW-3 attorney of the petitioner clearly admitted the factum of earlier gift mutation in favour of the petitioner. He also admitted it correct that the petitioner before two months prior to the attestation of disputed mutation raised an objection before the revenue officer regarding the mental health of the donor, however, later on the said was attested by the

revenue officer. He has also admitted it correct that petitioner, his father lives in village and he is in good health but did not appear before the trial court to support his case. It is also evidence from the record of the case that the respondent has produced DW-2 Patwari Halqa who entered the said mutation, who categorically admitted that Muhammad Zaman himself came for entering of the disputed mutation. The respondents have also produced revenue officer before the court who attested the said mutation in presence of donor Muhammad Zaman, Muhammad Ishaq (PW-4) and Abdul Rasheed, witnesses of the disputed mutation. DW- 4 stated in his statement that the other witness of the mutation Abdul Rasheed has died and he placed his death certificate as Ex. DW-5/3) further stated that the said Abdul Rasheed was in close relation of Muhammad Zaman donor. Likewise he had also produced the copy of medical certificate as Ex. DW-5/1 and stated that the Muhammad Zaman during his lifetime has gifted out his entire property to his LRs including the present petitioner and respondents.

6.From the above stated facts and evidence, it clearly transpired that Muhammad Zaman (Donor) who was the

predecessor in interest of the parties, in his lifetime vide mutation No. 7070 attested on 28/01/1981 and Mutation No. 2039 dated 08/04/1983 gifted his entire property to his LRs and left nothing beyond. Apart from the above, the respondents has produced the Patwari Halqa who entered he said mutation as well as the revenue officer who attested the said mutation alongwith the witness Muhammad Ishaq DW-4 who is the attesting witness of the said mutation, whereas the death certificate in respect of other witness Abdul Rasheed has also been placed on file as Ex. DW-5/3. Moreover, it is admitted from the evidence available on record of the case that the petitioner was well in knowledge of the disputed mutation, however, he challenged the same in the present declaratory suit on 01/10/1999 which clearly shows that the suit of the petitioner was miserably barred by time, as limitation for suit for declaration is governed by Article 120 of the Limitation Act 1908 which provides six years from the date of cause of action and in the case in hand the petitioner were having knowledge of the same before its attestation, therefore, he was required to file the present suit within the limitation provided of six years from the date of attestation of the said mutation.

7.Keeping in view, the above stated facts, circumstances and the discussion made thereupon, this court reaches to the conclusion that the concurrent findings of facts rendered by the learned lower courts below are based on proper appreciation of evidence and material available on record of the case, therefore the same needs not to be interfered with by this court in its Revisional jurisdiction under section 115 CPC. Hence, the present revision petition being bereft of merits, thus the same is liable to dismissal, dismissed accordingly.

Announced:

Dt.11.10.2017. JUDGE

*/M.Saleem/*