ABID SHERANI vs TAHIR SHERANI Ss — 2024 CLC 333 PESHAWAR-HIGH-COURT

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ABID SHERANI VS TAHIR SHERANI Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Gift mutations---Proof---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutations of land described in the head-note of plaint, executed in favour of respondent No. 1 by the father of the parties on the ground that said transactions were based on fraud and therefore, revenue record to that extent was liable for correction---Suit was dismissed by the Trial Court, while appeal was dismissed by the appellate Court---Validity---In this case, though the beneficiary was respondent No. 1, he was under the legal obligation to prove the execution of both the gift mutations dated 13.05.1978, but as the petitioner alleged fraud, therefore initial burden laid upon the petitioner to prove that how, when and who committed the fraud and under what mode and manner---Donor of the impugned gift mutations was a literate person and remained alive till the year 2003---Donor was a man of prudent mind and he, during his life time, did not raise objection over the alienation of suit property by respondent No.1 through the mutations during the period between 1999 to 2000 and even mortgage of some of the land in favour of two banks by the respondent No.1---Silence of father over sale and mortgage of property by the son (respondent No.1) amounted to recognition of the fact that father deliberately transferred the property in favour of his elder son and therefore, the petitioner being another son could not challenge the impugned mutations---If a transaction was not challenged by the father, then his son, after his death, would lack locus standi to challenge the same---Evident from the record that after attestation of impugned mutation dated 13.05.1978, the respondent No.1 transferred an area measuring 10 Kanals in favour of the petitioner through a mutation dated 13.05.1978---Petitioner thereafter had himself sold the said landed property through various mutations and out of these mutations, vide a mutation dated 27.03.1990 petitioner sold an area measuring 01 Kanal to the respondent No.1---Said documentary evidence not only portrayed the knowledge of petitioner about the suit transactions but also that he remained silent, and after the death of his father, he filed present suit on 29.03.2011---Said fact not only constituted estoppels and waiver on the part of petitioner but also exposed him before law of limitation---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed.

ABID SHERANI vs TAHIR SHERANI Ss — 2024 CLC 333 PESHAWAR-HIGH-COURT

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