' JAWWAD S. KHAWAJA, J.---The parties to this petition are successors of one Faqir Muhammad.
The petitioner Mst. Hajran Bibi and the respondents Nos.2 and 3, namely, Mst. Hamidan Bibi and Alam Bibi are the daughters of Faqir Muhammad while Barkat Ali (respondent No,4) is the husband of another daughter, namely, Mst. Hakim Bibi. Muhammad Boota (respondent No,1) is the son of the aforesaid Faqir Muhammad.
2. Faqir Muhammad died on 12-12-1985. He owned agricultural land in Faisalabad and Sargodha and a residential Ihata in Faisalabad. Upon his death, three mutations of inheritance being Mutation No,643 dated 13-2-1986 in respect of agricultural land in Faisalabad, Mutation No,380 dated 19-2-1986 in respect of the residential Ihata in Faisalabad and Mutation No,594 dated 12-12- 1985 in respect of agricultural land in Sargodha, were duly sanctioned in the name of the above named daughters and one son of Faqir Muhammad. Thereafter two rapts being Rapt No,347 dated 20-1-1986 (Exh.P.5) in respect of the property in Faisalabad and Rapt No,226 dated 6-1-1986 (Exh.P.1) in respect of property in Sargodha, were recorded by the Patwari in the rapt Roznamcha Waqiati of the respective mauzas. These rapts, purportedly, were entered at the behest of the three daughters of Faqir Muhammad with the object of gifting their inheritance in favour of Muhammad Boota. On the basis of the aforesaid rapts, three gift Mutations Nos.644 and 381 both dated 19-2-1986 in respect of property in Faisalabad and gift Mutation No,599 dated 12-1-1986 in respect of property in Sargodha, were entered in the Revenue Record.
3. The petitioner is aggrieved of the aforesaid mutations as, according to her, she had not made any gift of her property in favour of her brother. She, therefore, filed a suit on 24-11-1997, to challenge the three gift mutations. This suit was resisted by Muhammad Boota. At this point, it may be noted that the three sisters of Muhammad Boota other than the petitioner, filed a written statement acknowledging the gift in favour of Muhammad Boota.
4. On the basis of the pleadings, the learned trial Court framed as many as 11 issues on which the parties led evidence. The learned trial Court held that no gift was made by the petitioner in favour of her brother Muhammad Boota. This conclusion was reached on the basis that there was no evidence showing the three essential ingredients of a gift viz. Offer, acceptance and delivery of possession.
5. The respondent Muhammad Boota preferred an appeal which has been allowed by the learned appellate Court vide appellate judgment and decree dated 1-4-2005. Hence, this petition. The reason which has prevailed with the learned appellate Court for allowing the appeal and dismissing the suit is that the above referred mutations have been proved and as such there was no necessity for separately proving the gifts.
6. I am afraid, the learned appellate Court has proceeded on the basis of a misconception of the law. A mutation is merely a record of a previously concluded transaction. It does not result in the A creation or extinguishment of rights in immovable property. In the present case the two Rapts No,347 (Exh.P.5) and No,226 (Exh.P.1) are most significant. Rapt No,226 which relates to Mutation No,599 has been entered in the Roznamcha on the basis of a statement made by respondent Muhammad Boota himself. Even on the face of this document, the petitioner did not appear before the Patwari to inform him of the gift purportedly made by her. Furthermore, there is no noting in the rapt (Exh.P.1) as to delivery of possession of the property. The other Rapt No,347 (Exh.P.5) relating to Mutations Nos.381 and 644 is also significant. It records the signatures of Ghulam Rasool, Lamberdar and Muhammad Boota, respondent/ defendant. It is, however, strange that although the petitioner, Mst. Hajran Bibi, and her sisters are noted as being present, their thumb-impressions or signatures have B not been obtained. The only conclusion which can be drawn from this circumstance is that the petitioner was not present before the Patwari and did not make any statement in respect of the alleged oral gift.
7. The above circumstances are coupled with the fact that the petitioner had her own children and there was thus no C occasion for her to gift her property to Muhammad Boota who was her step (consanguine) brother. There are other circumstances also, which have been noted in the judgment of the learned trial Court which belie the defence set up by the respondent Boota.
8. The learned appellate Court has not taken note of the above material aspects of the case and nor has it dealt with the cogent reasoning adopted by the learned trial Court D while decreeing the suit of the petitioner. In the circumstances, I find that the impugned appellate decree is not legally sustainable. The same is, therefore, set aside. As a result, the decree of the learned trial Court dated 11-7-2002 stands restored.
9. The petitioner shall also be entitled to her costs throughout.