' This second appeal is directed against the order of the Additional District Judge, Multan, dated 20- 7-1 64, whereby he accepted the appeal of the respondent Hakim Khan and decreed his suit.
2. Hakim Khan respondent, being the owner of the land in dispute, filed a suit for a declaration against the appellants, his minor sons, that he had never gifted any property to them nor did he ever transfer possession; and that the alleged Mutation No, 135 attested on 20-6-1952 was fictitious and incomplete, therefore, not binding on him. The suit was contested by the minor donees through their mother Mst. Sharam Khatoon as guardian ad litem. They alleged that the respondent had transferred the property by way of a valid gift but because he was the father, the question of delivery of actual possession did not arise as he, being the natural guardian, was keeping possession on their behalf. The suit was dismissed by the trial Court but in appeal the learned Additional District Judge reversed the findings of the trial Court and decreed the suit of the plaintiff-respondent.
3. The learned Additional District Judge observed that the alleged gift was evidenced by a report of the Patwari entered in his Roznamcha and the Mutation No, 135 entered in lieu thereof. He doubted the report mainly for the reason that it was not signed by the respondent-donor and it did not disclose that possession had passed. At the same time, he considered that the mutation, having been entered on account of the statement made by the donor in the report before the Patwari, could not be a piece of evidence. On this assumption, he found that the report and the mutation were not legally proved. The mutation was held to have not been effected by the respondent and for that reason his suit was decreed.
4. The learned Additional District Judge was influenced by the defect in the documents referred to above but he lost sight of the fact that a gift by a donor does not require any writing. The report of the Patwari and the mutation thereafter were not the documents of title and the defect, if there was any, did not affect the creation of a gift. Even if there is a report made by a Patwari and in consequence thereof a mutation waste entered and sanctioned, the donees were not debarred from proving the factum of gift independent. In the present case, the defects pointed out by the learned Additional District Judge are not warranted by law. It is contained in note under para. No, 3.81, Chapter 3 of Land Records Manual that it has been noticed that in some Districts, Patwaris take undue advantage of the instructions in this paragraph and record detailed reports about the transfer of land and getting the parties concerned to affix their C signatures to the entries made by them. This practice is irregular and must result in greater opportunities for illegitimate income to the Patwari. The only person, whose signatures can be affixed to the entry made in the diary, is the village Lambardar and the reports made should be brief. In the present case, the Patwari had acted in accordance with the instructions contained in the Manual and was justified in refraining from getting the signatures of the donor and making the detailed report about the factum of gift.
He had duly complied with the instructions and only obtained the signatures of the Lambardar as required by law. At the same time, it was not necessary for the Patwari or the Revenue Officer to obtain signatures of the parties or witnesses on the mutation proceedings. It is laid down in Para. No, 383 of the Punjab Land Administration Manual D that no Patwari or Qanungo or Revenue Officer should-take the signatures or thumb-marks of parties or witnesses on mutation proceedings. It is, therefore, manifest that the report of the Patwari as well as the contents of the mutation were not defective in any way and the learned Additional District Judge was, therefore, wrong to make such defects as the basis of his judgment.
5. The learned counsel for the respondent had pointed out that in case the material evidence is not duly considered by the lower Court, the only alternate is to send the case back to the Court for re- writing the judgment, and to substantiate his view point he has referred to certain authorities There is no dispute that in cases where the Court has failed to look into the material evidence on record or omitted to decide a necessary question of law or fact, the case has to be sent back to it for a decision afresh but there are exceptions also In a case where a substantial length of time has already passed in litigation, it is not proper to re-open the matter and allow the parties to indulge in the dispute from the very beginning. I, therefore, do not consider it proper to send the case back for going into it once again.
6. The main dispute in the suit revolves around the question, whether or not the respondent-donor had gifted the property to the appellants and delivered possession. Although there is no direct evidence about the factum of gift, yet Shah Din Pensioner Patwari as D. W. 6 deposed that he knew Hakim Khan personally. The report Exh. D/1 was incorporated in his diary at his instance. The witness further deposed that he placed the mutation before the Tehsildar and 'Hakim Khan was then present. He admitted the correctness of the mutation. He further deposed that Nazar Muhammad Lambardar was also present there. Nazar Muhammad appeared as D. W. 7 and stated that he had identified Hakim Khan at the time of attestation of the mutation and that he admitted before the Tehsildar that he had gifted the property and delivered possession. At the same time, Mst. Sabhrai as D. W. 9 stated that Hakim Khan was her nephew and he had gifted away the property in favour of his two sons Zahoor Ahmad and Manzoor Ahmad, the appellants. She gave the circumstances why Hakim Khan had gifted this property. This much evidence was sufficient to hold that Hakim Khan had actually declared a gift in favour of his minor sons and that he also proclaimed to have delivered possession. This evidence was considered sufficient by the trial Court and it was found by it that a valid gift had taken place.
7. The next question, which was agitated, is that actual possession had not passed to the donees.
From the record, it is clear that at the time when the gift was made, the property was in possession and cultivation of Mehmood and Sultan tenants, meaning thereby that the property was incapable of actual physical possession. In such circumstances, possession could be given by attornment, but because the donor was the father and the donees, his minor sons, presumably living together.
In such state of affairs when the donor is the natural guardian and acts for the benefit of the minors, the actual change of possession is not necessary and the trial Court has rightly held that in such cases change of possession was not necessary. The mere declaration about the change is enough. In the present case, the donor, while he appeared in the mutation proceedings,, declared that he had delivered possession. This much declaration was sufficient for the completion of the gift and once a gift is complete, it cannot be revoked by the donor.
8. There is evidence on record that the donor-respondent might not have challenged the gift if he had not subsequently married another wife and got two children from her. The birth of another two children tempted the donor to rescind the gift which it is too late for him to do.
9. In the circumstances, I do not consider any merit in the suit. The appeal is accepted, the judgment and decree of the learned Additional District Judge are set aside and the suit is dismissed with costs.