' This appeal is directed against the judgment and decree, dated 5-2-1981 whereby, while reversing the judgment and decree of the learned trial Court, the suit filed by Nawab Din, deceased appellant, now represented by this legal heirs, was dismissed. The facts of the case, gathered from record, are stated hereunder.
2. Nawab Din, the appellant, Lal Din and Bhulliya, sons of Gheseeta, were the owners of land measuring 438 Kanals, 15 Marlas. On the death of Lal Din Mutation of Inheritance (No. 69) of his estate was sanctioned on 5-3-1969 in favour of Nawab Din, real brother of the deceased (one halt) and three sons of Bhulliya namely Saad, Farman and Iqbal (one halt). It may be noted here that Bhulliya had pre-deceased Lal Din.
3. Feeling aggrieved of attestation of the aforesaid mutation, the appellant filed an appeal before the learned Collector, Sialkot which was allowed vide order, dated 29-11-1969 (Exh. P.4) with the finding that in the presence of Nawab Din, full brother of the deceased, the three sons ' of Bhulliya stood excluded. However, the case was remanded to the learned Assistant Collector Grade-II for a fresh decision after hearing the parties. The said order, dated 29-11-1969 was not further assailed.
On 28-2-1970, the three sons of Bhulliya filed a suit for declaration. Copy of the plaint is not on the record. In this suit a compromise was submitted before the learned trial Court on 6-5-1971, a certified copy of which was placed on the record by the defendants-respondents, although not exhibited, according to which, the parties had compromised and through a mutation in favour of the three sons of Bhulliya, the appellant had handed over possession to them. Accordingly, the suit filed by the three sons of Bhulliya was consigned to the record.
4. During the pendency of the suit of the three sons of Bhulliya Mutation No.100 was attested on 15- 3-1971 showing gift of land measuring 81 Kanals, 19 Marlas in favour of the three sons of Bhulliya allegedly made by the appellant. This mutation was allowed to be produced on the record by the learned First Appellate Court on the application of the respondents. Mutation No.99 evincing partition between the Legal Representatives of Bhulliay and Nawab Din was attested on 17-3-1971 (Exh.P.7), according to which, an area measuring 290 Kanals, 15 Marlas fell to the share of the appellant while the successorsin-interest of Bhulliya were given 144 Kanals and 10 Marlas which represented the share of Bhulliya in the Khata in which Lal Din and Nawab Din were the co-owners.
5. On 30-1-1979, Nawab Din, the deceased appellant filed a suit for declaration assailing the aforesaid mutation of gift on the ground that it was forged and fictitious and was sanctioned in the absence of the appellant-plaintiff.
6. The suit was contested by the respondents. Their case in the written statement was that the appellant had got the mutation (without specifying its number and nature) entered and attested respectively .On 13-3-1971 and 15-3-1971 and it was on the basis of the aforesaid mutation that the compromise was submitted in the Court on 6-5-1971. They also took an objection to maintainability of the suit on the basis of section 11 read with Order XXIII of the Code of Civil Procedure.
7. Necessary issues were framed and the suit was tried. The learned trial Court found that no evidence was produced on Issues Nos.1, 2, 3 and 5 which were accordingly, answered against the respondents. On Issue No.4 i.e. "Whether the Mutation No.100 of gift is null and void and ineffective on the rights of the plaintiff, if any? OPP", the learned trial Court relied on the testimony of P.W.1 and P.W.2 and observed that D.W.1, Rustam Ali, even admitted enmity between the parties, therefore, it was not believable that the appellant would make any gift of the land to the respondents particularly when he had three sons. Accordingly, vide judgment and decree, dated 3-2-1980, this suit filed by the appellant was decreed.
8. The respondents filed an appeal which was allowed by the learned Additional District. Judge, Silakot on 5-2-1981. The learned First' Appellate Court, primarily, relied on the compromise, dated 6- 5-1971 as evidence of the gift. It was observed that P.W.2, Ghulam Muhammad, did not rebut the attestation of the disputed mutation while Rustam Ali, Lumberdar, who was present at the time of attestation of the mutation in dispute was examined as D.W.1. It was, further observed that the appellant "seems to be a very clever man, who with device got the said suit of the appellants Nos.1 to 3 (three sons of Bhulliya) dismissed as having been withdrawn on the basis of the compromise and then retracted from his view-point that he has not got attested the mutation of gift in favour of appellants Nos.1 to 3. Accordingly, the learned First Appellate Court held that the gift made by the appellant was complete and could not be revoked. This R.S.A. Is directed against the said judgment and decreed.
9. The learned counsel for the appellant contends that the learned first Appellate Court misread and misinterpreted the evidence, the compromise, dated 6-5-1971 could not be treated as evidence because it was not proved. According to him, there was no evidence whatsoever that the appellant had-ever made a gift in favour of three sons of Bhulliya. He further contended that in the written statement the so called gift was-not even pleaded except referring to a mutation. It is being reiterated that Nawab Din, the appellant, who had three sons had no reason to gift land measuring 81 Kanals, 19 Marlas in favour of his nephews, particularly when criminal litigation between them and the appellant was already pending. Reliance was placed on Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938).
10. The learned counsel for respondents Nos. 2 to 4 contends that the disputed mutation was attested on 15-3-1971 while the suit was filed on 31-1-1979 and limitation for a suit to challenge a mutation being six years, under Article 120 of the Limitation Act, the suit was barred by time.
According to him, it was a question of law and the Court was bound to give effect to the law of limitation even, if no plea was raised. Reliance was placed on Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153). It was next contended that the suit was filed by the attorney and, therefore, it was not maintainable. He contended that Mutation No.100 was not even produced by the appellant. It was produced by the respondents before the learned First Appellate Court by way of additional evidence which shows that the said mutation was attested in common assembly in the presence of Nawab Din, the appellant and it was even thumb-marked by him after accepting the factum of the gift. According to him, appellant did not appear as his own witness for no valid reason and, therefore, the best evidence was withheld. Further, appellant's attorney could not be examined in rebuttal. Reliance was placed on Naseer Ahmad v. District Judge, Multan and 4 others (PLD 1992 Lahore 92), Al-Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494), Murid Hussain v. Muhammad Lal (1987 CLC 101), Mst. Khair-ul-Nisa and 6 others v.
Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Khan Zaman Khan v. Muhammad Nawaz (1983 CLC 611). As to the evidentiary value of a mutation, reliance was placed on Abdul Ahad and others v. Roshan Din and 36 others (PLD 1979 SC 890). It was next maintained that although, fraud was alleged in the plaint yet no evidence at all was led by the appellant to substantiate the plea. It was next argued that the question whether a gift was made by the appellant in favour of the three sons of Bhulliya and whether the disputed mutation was rightly attested are questions of fact and no interference is called for in the second appeal.
11. Neither the learned trial Court nor the First Appellate Court fully examined the evidence produced in the case. Therefore, before the respective contentions of the parties are examined, it will be appropriate to note the evidence produced by the parties.
12. Ex. P.1 is the Jamabandi for the year, 1971-72 which shows the three sons of Bhulliya as owners in possession of land measuring 81 Kanals and 19 Marlas, Ex.P.2 is. Jamabandi for the year, 1971-72 which shows Nawab Din a owner in possession of the land measuring 212 Kanals and 17 Marlas, Exh.P.3 is the copy of the F.I.R., dated 29-8-1970 lodged by Nawab Din, the appellant under section 447 of the PPC against the three sons of Bhulliya and one Rustam Ali. Ex.P.4 is the order passed by the learned Collector in appeal against Mutation No.69 attested on 5-34969. Exh. P.5 is copy of the plaint in the suit for permanent injunction filed by Nawab Din while Ex.P.6 is the order, dated 9-7- 1970 granting an interim injunction in favour of Nawab Din. Mutation No.99 of partition was placed on record as Exh.P.7. As far as the oral evidence is concerned, Nawab son of Chiragh Din (not the appellant) was examined as P.W.1. He stated the land was initially owned by Gheseeta, who had three sons namely Nawab Din; Lal Din and Bhulliya. Lal Din died issueless, Nawab used to cultivate the land of Lal Din and that Nawab had never made any gift in favour of Iqbal and others. Nawab had three sons, who were residing with him. P.W.2, Ghulam Muhammad, made a similar statement.
Atta Muhammad, son of the appellant and his special attorney, was examined As P.W.3 after the close of the evidence of the respondents. He stated that when Lal Din died, Muhammad Iqbal's father was not alive, mutation of inheritance was however, got sanctioned by him but on the appeal of Nawab Din, the case was decided in his favour. He also stated that his father had not made any gift and that he (Nawab Din) had not appeared before the Revenue Officer. He however, reiterated that only a mutation of partition was sanctioned.
13. On behalf of the respondents, Rustam Ali was examined as D.W.1 he was the Lumberdar of the revenue estate. According to him, Lal Din had died without any issue and without a wife. In his life time he had divided his estate between Nawab Din and his three nephews in equal share there has been a dispute but the matter was compromised in a Punchayat and thereafter, Nawab got attested the mutation in accordance with the said compromise. He however, admitted that after the death of Lal Din the parties have been involved in criminal litigation. Muhammad Iqbal, one of the respondents, appeared as D.W.2. He stated that Lal Din had distributed his property in his life time and in accordance with the compromise between the parties, the mutation of gift was entered and attested and the same day a mutation of partition was also attested. He however, admitted that the criminal case lodged by the appellant was still pending.
14. The contentions of the learned counsel for the parties have been examined in the light of the evidence produced by them. It may be stated at the outset that proof of an oral transaction is on the beneficiary because the negative is not capable of proof. In this case the evidence produced on the record shows that not only the appellant had three sons but criminal litigation was also pending between the appellant and his three nephews. And, the consideration for the gift pleaded in the written statement was a compromise. The alleged gift involved land measuring 81 Kanals and 19 Marlas but it was not even averred as to what was the consideration for the compromise.
15. It may also be observed that no presumption of correctness is attached to the entries of mutation although these may be relevant nor the mutation alone could be accepted as proof of the gift in case a dispute arises unless the transaction was established by satisfactory evidence, P.W.1 and P.W.2 stated that no gift was made by Nawab Din by the appellant. Although, their evidence was negative in nature yet it was sufficient to discharge the initial burden of proof of issue No.4 and the transaction of gift was required to be established by the respondents. The suit was filed by Nawab Din himself in his life time. In the written statement neither any C gift having been made in favour of three sons of Bhulliya nor Mutation No.100 attested on 15-3-1971 was pleaded.
Perusal of the disputed mutation shows that it was purported to have been attested in presence of Nawab Din, the three sons of Bhulliya, Rustam Ali, Lumberdar and Allah Raham. Rustam Ali was examined as D.W.1. He stated that the appellant had got the mutation attested in accordance with the decision of the Punchayat but even he did not state that the mutation was attested in his presence, or appellant had appeared before the Revenue Officer and had affirmed making of the disputed gift. No witness of the Punchayat was produced to show that the compromise between the parties was that the appellant will gift land measuring 81 Kanals, 19 Marlas to the three sons of Bhulliya and moreso without any consideration. Muhammad Iqbal, one of the alleged donees, appeared as D.W.2 but he did not even claim completion of transaction of gift of land measuring 81Kanals 19 Marlas in favour of appellants nephews, although he referred to a gift mutation. He rather stated that Lal Din had, in his life time, distributed the property. This statement, negated the alleged gift having been made by the appellant.
16. Reference may usefully be made to the following observations of the Honourable Supreme Court of Pakistan in the case of Barkat Bibi (supra):-- "It is quite intriguing to note that Din Muhammad had been gifting away the property to his grandson by totally disinheriting his one and the only son, namely, Barkat Ali, Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of Inheritance in bypassed."
17. The compromise produced in the suit earlier filed by Muhammad Iqbal, etc. Was relied upon by the learned Addl. District Judge as evidence of the gift allegedly made by Nawali Dina This document was produced by the respondents but was not duly exhibited. I have perused the said compromise. The two relevant paragraphs thereof are reproduced hereunder:- {{URDU TEXT}} ' It refers to a mutation but does not disclose F the terms of the compromise between the parties. It does not appeal to reason as being opposed to normal course of human conduct, that after having succeeded before the learned Collector, the appellant would gift 81 Kanals and 19 Marlas to the respondents without any consideration and in the background of criminal litigation with them.
A compromise is generally reciprocal while in this case the respondents were relying on unilateral relinquishment by the appellant of his valuable rights. Mutation No.99 of partition was undoubtedly attested on 17-3-1971, according to which, area measuring 290 Kanals and 5 Marlas was allocated in favour of Nawab Din. While Mutation No.100 shows its attestation on 15-3-1971, Lal Din, Nawab Din and Bhulliya owned land measuring 146 Kanals each and in case land measuring 81 Kanals, 19 Marlas had already been gifted in favour of the three sons of Nawab vide Mutation No.100, already attested, then in the partition proceedings, the appellant would not have been allocated to an area measuring 290 Kanals and 5 Marks. This fact is also a very strong circumstance against making of the so called gift by the appellant. This Mutation (No.99) was not challenged by the respondents.
No Revenue Officials, who had entered or attested the disputed mutation was examined. Column No.12 of this mutation shows that not only the date of the gift is missing but there is no mention of any report having been lodged at all in the Roznamcha Waqiati a prerequisite under section 42 of the Punjab Land Revenue Act, 1967. As far as the thumb-impression on the disputed mutation is concerned reference may be made to the following extract from para.7.4 of the Land Records Manual which contains a direction to the Patwari:-- "He is, however, strictly forbidden to take the thumb-mark or the signature of any of the parties to the transaction anywhere on the mutation sheet."
' Thus, if at all there was thumb-mark of the appellant (not otherwise proved that it was of the appellant) on this mutation, no premium could be placed on an illegality, nor as observed above, a mutation by itself is substantive evidence of transaction of gift. I am, therefore, of the opinion that there was no evidence at all on the record in support of the gift statedly made by Nawab Din. The approach of the learned First Appellate Court, based on the compromise, dated 6-5-1971 was only speculative and conjectural.
18. This compromise was photocopy (certified) of a private document and unless it was duly proved it could not be relied upon against the appellant. The learned First Appellate Court, while taking into consideration the aforesaid compromise, relied on Nathey Khan v. Rehmat Bibi (PLD 1961 Baghdad-ul-Jadeed 96). In the said case a pre-emption suit was decreed against which the vendee approached this Court in first appeal. The contention was that since it was land to which Colonization of .Government (Lands) Punjab Act, 1912 applied, no right of pre-emption existed against the said sale. The land involved in the said case was State land and was sold in favour of the Sher Muhammad and two others vide registered sale-deed, dated 26-10-1954, who had sold the said land in favour of Nathey Khan on 2-11-1954 which was subject matter of the pre-emption suit. The sale-deed, dated 26-10-1954 was placed on the record by the plaintiff herself which was taken into consideration by this Court against the plaintiff. Resultantly, the suit was dismissed and in that context the observation relied upon by the learned First Appellate Court was made. The principle emerging from the aforesaid decision of this Court is that certified copy of a document placed on the record by a party can be used against that party.
19. The learned First Appellate Court, apart from relying upon the compromise aforesaid, also observed that "the appellant has admitted having got attested the mutation in favour of appellants Nos.1 to 3 and also delivered the possession of the suit-land". I could not find any such admission on the record except a recital on the mutation itself. Since it was disowned by the plaintiff-appellant, it could not have been used as evidence against him unless making of such a statement was duly proved by examining the person who had recorded it. It may also be noted that only witness of the mutation, who was examined was Rustam Ali, D.W.1, but he did not state that such an admission was made by the appellant before the Revenue Officer in his presence.
20. The objection of the learned counsel for the respondents, have duly _ been considered. As far as the plea of limitation, is concerned, no such cl,j..Etion was taken in the written statement. Perusal of the plaint shows that although mutation of gift was attacked yet the suit was one for possession simpliciter to which Article 120 was not otherwise applicable.
21. Reference may be made Fazal Din and 3 others v. Umar Din (1979 CLC 663). The said case involved a suit for declaration and possession in which an oral transaction of gift vide a mutation was also assailed by the L.Rs. Of the donor. The objection that the suit was barred by limitation insofar as challenge to the gift mutation was concerned, was repelled by this Court with the following, observation:-- "Though the respondents in their suit prayed for declaration yet they were not bound to sue for it. A Full Bench of the Allahabad High Court in Shantha Nand Gir Chela and another v. Basudvand (1) held that a plaintiff has only to state that facts correctly and it is for the Court to see what relief can be granted to him. In Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (2), a plaintiff filed a suit for declaration and permanent injunction but as the suit for declaration was hit by section 273 of Cantonment Act, he sought to drop the prayer for grant of declaration in this respect the Supreme Court observed:-- "It was, therefore, open the plaintiff in the instant case to have dropped and given up the relief for declaration at any time during the course of proceedings in the stiit and this continued his suit for the relief for the injunction only."
22. The second objection was that the suit was filed by the attorney. It has no merit because the suit was initially filed by Nawab Din. A special power of attorney is on the record of the trial Court by which he had authorized his son to prosecute the suit. As far as the third objection of the learned counsel for the respondents is concerned, it has no merit because as noted above, the burden to prove a valid gift was on the respondents, who failed to prove it. Non-production of the disputed mutation by the appellant is of no consequence because, the respondents were relying on it.
23. As far as the next contention is concerned, suffice is to say that nonappearance of a party, as his own witness, cannot be considered as fatal unless there were certain facts specially in the knowledge of the Orty or there were certain doubts attached to the case of the party but it does not appear to clear those doubts. This was a case of denial of gift and in the absence of any evidence establishing a valid gift, non-appearance of the appellant was not fatal to the suit filed by him. As far as the next contention is concerned, ordinarily a finding of fact is not liable to be interfered with in second appeal yet it is not sacrosanct if arrived at by relying on inadmissible evidence, or misinterpretation of evidence, as was done in this case by the learned First Appellant Court.
24. The judgments cited by the learned counsel for the respondents have been examined. In the case of Muhammad Botta, there was an objection as to the limitation and an issue as well which was given up before the learned First Appellate Court. It was reopened by the High Court. The Hon'ble Supreme Court observed that provisions of section 3 of Limitation Act are mandatory, if from the statement in the plaint the suit appears to be barred by limitation, the plaint should be rejected and the law does not leave the matter of limitation to the pleadings of the parties. It imposed a duty upon the Court itself. However, the present suit was one for possession simpliciter.
In the case of IsIseer Ahmed, Al-Haj Khalil Ahmed, Murid Hussain and Khan Zaman Khan (supra), the rule laid down was that no evidence in affirmative can be received after the closing of evidence in defence. As a principle of law there could not be any dispute with the proposition but in this case, neither any objection was taken by the respondents at the proper stage nor it has prejudiced them because P.W.3, did not say anything which took the respondents by surprise.
Therefore, even if affirmative part of his testimony was excluded, the case of the respondents does not improve in the absence of proof of a valid gift. As far as the case of Khair-un-Nisa and 6 others is concerned, it was a suit for specific performance and has no relevance to the controversy in hand. The case of Abdul Ahad involved a dispute about inheritance in which it was held that mutation entries have great evidentiary value. However, in the said case claim to inheritance was supported not only by the mutation proceedings but also by the pedigree-table and Naqsha Surat Deli, which is the part of Record of Rights and presumption of correctness was attached to it.
25. For what has been stated above, this appeal is allowed with costs, the impugned judgment and decree, dated 5-2-1981, of the learned First Appellate Court are set aside and the suit filed by the appellant is decreed.