MIAN SAQIB NISAR, J.--- Respondent No. 1 is the real daughter of the petitioner, whereas respondent No. 2 is her son. Respondent No. 1 through the gift mutation No. 653, dated 30.12.1995 got mutated in her favour the suit land measuring 37 kanals and 10 marlas (described in the plaint), owned by the petitioner, purporting to have been gifted in her favour by the petitioner. And simultaneously, through another gift deed No. 658 of the even date, the same land was further shown to have been gifted in favour of respondent No. 2. The petitioner challenged the aforesaid transactions as being fraudulent, by denying of having gifted his land to respondent No. 1, which she could further gift to. respondent No. 2 and asserted that the entire proceedings in this behalf are the result of fraud and misrepresentation etc. The respondents resisted the suit; claimed the valid gift in their favour.
Issues were framed; parties were put to trial. The petitioner ,examined himself as PW-1 and denied if he had ever made the gift to respondent No. 1; he also claimed to be in possession of the suit property. He .Also examined PW-2 Chaudhary Aman Ullah and PW-3 Muhammad Anwar, who supported his version. Against the above, the respondents examined DW-1 Muhammad Sarw'ar, who is a Lambardar of another village and had identified the petitioner at the time of the mutation of gift before the Tehsildar. DW-2 Bashir Ahmad also claims to be a witness of the mutation. DW-3 is Mst. Rashida Bibi, respondent/defendant No. 1 herself, whereas DW-4 is Haji Muhammad Inayat and Muhammad Aslam respondent/defendant No. 2 appeared as DW-5.
2. On the conclusion of the trial, the learned Civil Judge, while holding that the mutation of gift has been proved by the respondents, dismissed the suit. The learned Civil Judge seems to have been over impressed by a suggestion put to one of the witnesses of the respondents i.e.:-- The conclusion drawn on the basis of the above is, that the petitioner had admitted his presence before the Tehsildar and it is in this context that positive suggestion was made to the said witness.
However, the learned Civil Judge has not examined or considered the testimonies of the witnesses produced by-both the sides, Be that as it may, after the dismissal of his suit, the petitioner preferred an appeal, but without any success and the judgment of the learned Appellate Court clearly shows lack of application of its judicial mind, because the learned Judge without adverting to any evidence on the reccrd or rendering any discussion thereupon, in a simple staement has held that "the respondents have proved through the statements of Muhammad Sarwar (DW-1), Bashir Ahmad (DW-2), Rasheeda Bibi (DW-3) and Haji Fayyaz (DW-4) that the present appellant appeared before the revenue officer at the time of sanction of mutation of gift in the name of respondent No 1". The learned Appellate Court too has relied upon the above reproduced suggestion made to. Bashir Ahmad DW-2 in reaching to the above, conclusion.
3. Learned counsel for the petitioner contends, that the respondents claim the gift in the oral nature, but they have not examined any witness or adduce any evidence to prove as to where the oral gift was made to respondent No. 1, which she could further gift out to respondent No. 2; no time, date, day' and the venue in this behalf has been proved. It is also submitted that DW-1 Muhammad Sarwar Lambardar, who allegedly identified the petitioner at the time of the mutation, does not belong to the same village and is related to the respondent side as has been admitted by him in the cross-examination; DW-2, the other witness of the mutation admitted that before he reached the venue, proceedings of mutation were concluded and he subsequently signed the same; DW-3 Mst. Rashida Bibi, in the cross- examination admitted that she was residing in Chichawatni and was not present on the day when the mutation was effected; moreover, she has also admitted that the petitioner had already issued a public notice of her and that the suit property is the only land, which is a source of living of the petitioner. DW-4 has also not proved if he was present at the time of the mutation, rather claims that the petitioner apprised him that he had gifted the property to his daughter.
4, I have heard the learned counsel for the parties . It is an undeniable fact that the respondent No. 1 claims an oral gift in her favour. She has not brought on record any positive evidence to establish as to when the declaration of gift was made by the petitioner in her favour and she accepted the same. No witness at all in this behalf has been examined; the day, the date, the time, the month, the year and the venue have even not been specified in the written statement or proved through the evidence. Therefore, when the initial onus on the shoulders of the petitioner had been discharged by him through his own statement, the adducing of such positive evidence was the responsibility of the respondents Nos. 1 and 2, which they miserably failed.
5. As regards the mutation is concerned, DW-1 is not the Lambardar of that concerned village and it is not justified as to why the concerned Lambardar has not been produced. No person from the Revenue Department has been examined, neither the Patwari nor the Tehsildar. It has not proved on the record, if the Tehsildar or the Patwari had sought the identification of the petitioner on the basis of any document such as Identity Card etc. DW-2 himself concedes that he was not present at that time. The Courts below unfortunately have over inflated the suggestion made to this witness i.e.:-- {{URDU TEXT}} If this suggestion is read in its proper context and line of cross-examination, the real intention of the question was, that whosoever was present and impersonated the petitioner at that time before the Tehsildar was never asked any question about the gift. DW-3 who is the daughter of the petitioner and claims a gift in her favour, was not even present at that time and there is no evidence on the record, if gift was accepted by her. The possession is not shown to have ever changed hands on the basis of the gift, as there is neither any independent proof on the record nor the change of possession is established on account of any overt act of the petitioner. These vital aspects of the case have not at all been considered by the two Courts below and their judgments are absolutely sketchy and reflect the non-application of judicial mind. The evidence on the record has not been considered; they have not even considered if the petitioner when has discharged the onus, same was shifted at the shoulders of the respondents, who were supposed to establish the gift through categorical and positive evidence, but on account of the contradictions highlighted above, they have failed. Therefore, in such circumstances, the suit of the petitioner should have been allowed, rather than dismissed by the two Courts below.
In the light of above, the judgments and decrees of the Courts below, which are suffering from infirmity of misreading and non-reading of the evidence, cannot sustain, which are hereby set aside with the result that the suit of the petitioner as claimed, is allowed.
Civil /Suit Decreed.