' This civil revision is directed against the judgment and decree dated 3-7-2000, whereby he allowed the appeal of the respondents and decreed the suit for declaration and permanent injunction.
2. Precisely the facts giving rise to the civil revision are that Mst. Zainab Bibi transferred land by way of gift mutation in favour of his son Bashir Ahmad through a gift Mutation No.594. It was challenged through a declaratory suit by Khurshid Ali deceased through his next friend, the ground that the gift mutation is a result of fraud and collusion with the Revenue Officials. It was averred that Mst.
Zainab Bibi did not appear before the Revenue Officer or Patwari. The petitioners entered appearance and filed their written statement. The controversy gave rise to various issues. Both the parties produced their evidence. The learned trial Court dismissed the suit of the respondents but on their appeal it was decreed in their favour, which is being assailed by the petitioners.
3. Learned counsel for the petitioners contends that Mst. Zainab Bibi was real mother of the petitioners, who transferred the land subject-matter of the suit by way of gift. He adds that all the ingredients of gift are complete hence the same cannot be set at naught by the learned trial Court.
4. Learned counsel for the respondents states that Khurshid Ali predecessor of the respondents is also real son of Mst. Zainab Bibi. He has been deprived of the suit-land. He supported the judgment of the learned Appellate Court.
5. I have considered the arguments of both the learned counsel for the parties.
6. Asim Nazir appeared as P.W.1. He stated that his father is an unsound mind and he has filed the suit on his behalf. He stated that Mst. Zainab Bibi was his paternal grandmother. She expired at the age of 90/100 years. She used to stay, for some time, with the plaintiff and defendant No.1 after short intervals. For transfer of property in dispute Mst. Zainab Bibi neither appeared before Patwari nor approached the Revenue Officials. Mutation was attested with the collusion of the petitioner/defendant. Abdul Ghaffoor appeared as P.W.2. He too stated that Khurshid Ali was suffering from mental infirmity for 8/10 years. Mst. Zainab Bibi the donor died at the age of 90 years.
She was infirm and sick. She had not transferred the land in favour of the defendant. He managed its transfer through collusion with the Revenue Officer. To the similar effect is the statement of P.W.3.
On the contrary the petitioner produced Manzoor Ali D. W.1. He stated that mutation was sanctioned on 12-7-1995. Mst. Zainab Bibi came in the office accompanied by Muhammad Iqbal Lambardar. He entered the transaction in Rappat Roznamcha Waqiati. Statements were recorded on 10-7-1995.
Mutation was attested on 12-7-1995. In cross-examination he stated that Rappat Roznamcha Waqiati does not contain thumb-impression of Mst. Zainab Bibi but thumb-impression of Mst.
Zainab Bibi appears on mutation. Mst. Zainab Bibi was produced before the Revenue Officer on 10- 7-1995, who had recorded her statement. Malik Shah Muhammad, Naib-Tehsildar has appeared as D.W.2. He stated that he sanctioned the mutation on 12-7-1995. Muhammad Iqbal, Lambardar stated that Mst. Zainab Bibi A transferred the property in favour of her son namely Bashir Ahmad of her own free will. She appeared before the Revenue Officer and made a statement before him.
Bashir Ahmed D.W.4 made a statement and stated that his mother was living with him for the last 20 years. She has transferred land in his favour of her own free-will. She herself appeared before the Patwari. She was healthy and was not suffering from any disease.
7. In documentary evidence the plaintiffs-respondents produced copy of Register Haqdaran Zamin for the years 1991-1992. Mst. Zainab Bibi is recorded as a co-sharer with 25/108 share. Column Kafiat shows that mutation was made by her on 12-7-1995 in favour of petitioners /defendants. Exh.P.3 is copy of mutation in dispute. Mst. Zainab Bibi appeared before Revenue Officer on 10-7-1995. Her statement was recorded. She was identified by Muhammad Iqbal, Lambardar and Khadim Hussain Pattidar. Muhammad Iqbal, Lambardar appeared as D.W.3 and supported the petitioners. Exh.P.4 is the copy of Roznamcha Waqiati evidencing entry of Mutation No.594 on 10-7-1995. Exh.D.1 is also the copy of Mutation. Exh.D.2 is copy of Roznamcha Waqiati. It shows the entry of mutation, which has been signed by Muhammad Iqbal Lambardar who had identified Mst. Zainab Bibi before the Patwari. Copy of "parrt" Patwar of Mutation No.594 has been palced on record which records thumb-impression of Mst. Zainab Bibi donor, signatures of Bashir Ahmad donee identified by witnesses Muhammad Iqbal Lambardar and Khadim Hussain along with their identity cards. Exh.D.3 is a copy of Mutation No.293 whereby Mn. Zainab Bibi gifted 382/2545 share in favour of her sons Khurshid Ali and Bashir Ahmed in equal shares on 22-8-1995.
8. After analyzing the above evidence, it appears that Mst. Zainab Bibi had appeared before the Revenue Officer and transferred the disputed property in favour of her son Bashir Ahmed petitioner.
She was not sick and infirm as alleged by the respondents/plaintiffs. Exh.D.3 is a copy of mutation, whereby she has gifted some landed property in favour of both her sons in equal shares. The plaintiffs/ respondents did not dispute this mutation. This proves that Mst. Zainab Bibi was not suffering from any mental infirmity. The respondents/plaintiffs acknowledge this transfer as correct. In this situation the appearance of Mst. Zainab Bibi before Patwari on 10-7-1995, when her statement was recorded in Roznamcha Waqiati, on the basis of which a mutation of gift was entered and her statement was recorded by the Revenue Officer on 10-7-1995 which was sanctioned on 10-7-1995 cannot be doubted. The Revenue Officer, D.W.2, Muhammad Iqbal D.W.3, Patwari P.W.1 and D.W.4 stated consistently that Mst. Zainab appeared herself and transferred the disputed land by way of gift in favour of the petitioners.
9. The conclusion drawn by the learned Additional District Judge are that Mst. Zainab Bibi was an old and illiterate Pardanashin lady, the defendants have not discharged the burden to prove the alleged transaction in their favour and that the ingredients of gift are incomplete. Delivery of possession was also not proved. He also took note of the transfer made by Mst. Zainab Bibi in favour of both her sons through Mutation No.293 dated 22-8-1995 to record a finding against the petitioners.
10. As regard to illiteracy and old age of Mst. Zainab Bibi donor is concerned the respondents/plaintiffs cannot urge this ground when thty accepted the transfer of land by way of gift in their favour through Mutation No.293 attested on 22-8-1995. As to discharge of burden by the petitioners to prove the gift, the evidence of D.W.2 and D.W.3 is sufficient to conclude that Mst.
Zainab Bibi had made a gift which was accepted by the petitioners. The documents Exhs. D.1 and D.2 also evidence this position. As for possession is concerned Exh.P.1 indicates that the suit-land was jointly owned by Mst. Zainab Bibi with other co-sharers. She had 25/108 share in Khata No.14 and 25/216 share in Khata No.17. There were other co-sharers. Possession of one co-sharer will be deemed to be the possession of all co-sharers. The petitioners/defendants will be deemed to be in constructive possession of the property in dispute.
11. The upshot of the above discussion is that the petitioners/defendants have proved the factum of gift. The judgment of the learned Additional District Judge is not sustainable in law. Resultantly, this civil revision is allowed and the judgment of the learned Additional District Judge is set aside and that of the learned trial Court is restored.