1. This revision is directed against the judgment and decree of the learned Additional District Judge-III, Mardan dated 16.08.2008, vide which the judgment and decree dated 30.5.2007 of the learned Civil Judge-XII, Mardan, through which the declaratory suit of the petitioners was decreed, was set aside and suit of the petitioners was dismissed.
2. The petitioners-plaintiffs instituted a declaratory suit against the respondents/defendants, in the Court of Civil Judge-XII, Mardan, to the effect that the property measuring 1600 kanals, fully detailed in the heading of the plaint, situated in Mauza Babini, Tehsil and District, Mardan (“disputed property”), is the ownership-in-possession of the petitioners/plaintiffs according to Jamabandi for the year 1991-92. And mutation No.901 dated 9.10.1973, mutation Nos.939, 940 and 941 dated 24.5.1975, mutation No.1074 dated 20.6.1978, mutation No.1191 dated 10.1.1980, mutation No.1224 dated 10.9.1980, mutation 1248 dated 16.4.1980, mutation No.1249 and 1257 dated 16.4.1981, mutation No.1355 dated 30.12.1982, mutation Nos.1542 and 1543 dated 24.11.1985, mutation No.1573 dated 21.4.1986, mutation 1601 dated 5.1.1987 and mutation No.1843 dated 18.7.1990, by Mst. Mahboob Sultana, or her attorney in favour of respondents-defendants are illegal having no legal effect upon the rights of the petitioners/plaintiffs; and that petitioners-plaintiffs also sought permanent injunction and possession of the disputed property, if they failed to prove possession of the disputed property.
3. The averments made in the plaint are that the disputed property was initially the ownership of Fateh Muhammad Khan, the predecessor-in-interest (grand father) of the petitioners-plaintiffs, who transferred the same to his daughter-in-law, Mst. Mahboob Sultana (step mother of the petitioners) through a registered dower deed/Kabinnama dated 09.09.1927 (“Kabinnama”), with a condition that Mst.Mahboob Sultana could use the disputed property in her life time or her second marriage, but she had no right of mortgage or sale and after her death the property would be devolved upon her male children; that the transaction was vide mutation No.23 dated 28.11.1927 incorporated in the revenue record by Fateh Muhammad Khan, in favour of Mst. Mahboob Sultana; that thereafter, the same was incorporated in Jamabandi for the year 1929-32 and mistakenly, the revenue staff showed Mst.Mahboob Sultana as ‘full owner’ instead of ‘limited owner’; that Mst. Mahboob Sultana and her attorney/defendant No.1, sold part of the disputed property through the impugned mutations, mentioned herein above; that husband of Mst.Mahboob Sultana, namely, Muhammad Ayub Khan and his father, Fateh Muhammad Khan, are dead; that Mst.Mahboob Sultana died issueless, while her husband Muhammad Ayub Khan has two sons (plaintiffs-petitioners) from his second wife; that the mutation and power of attorney in favour of defendant No.1 by Mst.Mahboob Sultana are liable to be set aside on the ground that father-in-law could not give dower to his daughter-in-law; that according to Kabinnama, Mst.Mahboob Sultana was limited owner and not full owner; that mutations and power of attorney are based on fraud and collusion; and finally that Mst. Mahboob Sultana was ill and remained in coma for some ten years before her death.
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