' MIAN SAQIB NISAR, J.---The present revision petition, as also Writ Petitions Nos.521 and 384 of 1999, are being disposed of together, as these involve common questions of law and the facts.
2. The suit for the declaration and injunction, filed by Mst. Mashan, the predecessor of the petitioners; her application under section 12(2), C.P.C. Challenging the consent decree dated 30-6- 1990, passed in favour of the respondent and her another suit under section 9 of the Specific Relief Act, seeking the possession of the suit-land, were all dismissed by the Court of the first instance; the appeal and two revisions filed by Mst. Mashan, against the above decisions have also met the same fate. Hence these petitions.
3. Briefly stated the facts of the case are; that on account of inheritance from her father, namely Asif Khan, Mst. Mashan, the plaintiff, had acquired the land measuring 477 Kanals and one Marla (about 60 acres, the "suit-land"); she allegedly through Mutation No,227 dated 18-5-1987; (through tamleeq) gifted the suit-land in favour of her nephew Fakhar Imam, the respondent, who was the son of her deceased brother Suleman. It may be pertinent to mention here that Fakhar Imam, admittedly, at the time of the said gift, was a minor. Anyhow, he on 12-6-1990, through his mother filed a suit for the declaration against Mst. Mashan, seeking the confirmation of the aforementioned gift, which suit on the basis of an alleged compromise between the parties and the consent of Mst. Mashan, was decreed in favour of Fakhar Imam on 30-6-1990.
4. Thereafter, Mst. Mashan on 12-4-1993, brought a suit for the declaration, challenging the aforesaid gift Mutation No,227, on the grounds of fraud and misrepresentation, etc; she also on 4- 5-1993, moved an application under section 12(2), C.P.C., challenging the consent decree dated 30- 6-1990, passed in favour of Fakhar Imam. Furthermore, according to the version of Mst. Mashan, she on 10-6-1993, was dispossessed from the suit-land, by the maternal uncles of Fakhar Imam, thus constraining her, to file a suit under section 9 of the Specific Relief. Act on 18-12-1993. All the matters though, were not consolidated, but were tried by the same Court and through the separate orders/judgments and decrees of the same date; both the suits and the application under section 12(2), C.P.C., filed by Mst. Mashan, were dismissed. Aggrieved of the above Mst.
Mashan, brought two revisions petitions, which were dismissed and these decisions are the subject-matters of Writ Petitions Nos.521 and 384 of 1999, whereas, the decree of the trial Court in the suit for the declaration was unsuccessfully challenged by her in appeal and now these judgments and decrees are assailed in C.R. No,24-D of 1999.
5. Learned counsel for the petitioners has argued that Mst. Mashan admittedly, was an old, illiterate and pardanashin lady; she had no independent advice about the transaction of any adult male member of her family and therefore, on the basis of the law, laid down in the judgment reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the impugned gift is liable to be set aside. It is further submitted that the onus to prove that Mst. Mashan has made a valid gift in favour of respondent, was negative in the nature, therefore, her statement simpliciter was enough to discharge her burden and thereafter it was upon the respondent to establish in positive terms that the gift was made, as asserted by him. But the respondent had not led any evidence, to establish the time, date, the venue and the persons, in whose presence, the gift was actually made, therefore, when the basic factums about the gift are not proved, the alleged Mutation No,227 has no legal value. It is also argued that for the purpose of a valid gift, especially, when it is alleged to be oral, the delivery of possession is a sine qua non, however, in the instant case, there is no proof that the physical possession of the suit-land under the gift, was delivered by Mst. Mashan, to the respondent, at the time of the gift, rather to the contrary, the suit-land was in possession of one Muhammad Azam, who was a lessee under Mst. Mashan from 1985 till Rabih.
1993. Throughout this period, the said lessee has been paying the lease money to Mst. Mashan, and also delivered the possession back to her at the time of the termination of the lease in April, 1993.
Azam has appeared as a witness for the plaintiff in the matter and in categorical and unequivocal words, has deposed that he had never attorned in favour of the respondent on the basis of any alleged gift; the respondent even never apprised him through any person/guardian, about the gift having been made by Mst. Mashan in his favour. The learned counsel for the petitioners has also made reference to the entry in the Roznamcha Waqiati Exh.P.3, to argue that according to this rapt, Nazir Ahmed, is alleged to have identified Mst. Mashan, before the Patwari, but he has not been examined by the respondent. The person namely Irshad, who has affixed his signature in Column No,14, too has not appeared before the Court; same is the position about the Patwari, who has entered the rapt. As regards the mutation, it is submitted that the persons, who allegedly identified Mst. Mashan, at the time of the sanction of the mutation, has not been examined by the respondent, and this conspicuous lapse 'is fatal to the proof of the gift; the pedigree-table of Asif Khan, father of Mst. Mashan, has been deliberately and deceitfully mentioned in the mutation, whereby the other legal heirs of Mst. Mashan have been consciously excluded and it has been erroneously mentioned, that she shall only be survived by the present respondent, whereas she also had other nephews, (the present petitioners, who are her successors), being the sons of his brother Abdul Haq. It is stated that the mutation was not attested on the day, it was entered; and for the attestation, it was postponed till 18-5-1993, but on the said date, none including Mst.
Mashan, was present to testify, it' she had gifted the property in favour of the respondent. It is further argued that no independent witness to identify Mst. Mashan, has been examined, the two Lamberdars of the village, were not even alleged to be present at the time, when the mutation is stated to have been entered or sanctioned. Irshad Ahmed, the. Chairman of Ushar and Zakat, whose signatures appear on the mutation, are at a place, which clearly shows that those had been obtained or affixed on the blank paper and the order of the sanction of the mutation was incorporated thereafter by overwriting. Had he been present at the relevant time, he would have signed underneath the order of sanction, passed by the Tehsildar, rather to the contrary. In support of his various contentions, learned counsel has placed reliance upon the following judgments:- ' Khajooroonissa v. Rowshan Jehan 1876 ILR-2 Cal 184; Mst. Azra Sultana v. Mst. Ashran Bibi 2000 PSC 107; Walayat v. Mst. Kaneez Fatima 1994 MLD 1955: Mst. Amir Bibi v. Ata Muhammad Khan and 14 others 1992 SCMR 553; Karam Bakhsh and another v. Mst. Saira Bibi 2000 MLD 318; Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591; Muhammad Iqbal v. S.A.M. Khan Member Board of Revenue and others PLD 1970 Lahore 614; Mst.
Kishwar Sultana v. The Land Commissioner, Sargodha PLD 1976 Revenue 30; Naja and 2 others v.
Shamand and 4 others PLD 1985 Lahore 607; Tooti Gul and 2 others v. Irfan-ud-Din 1996 SCMR 1386; Muhammad Sharif v. Mst. Rehmat Bibi and 2 others 2001 YLR 893; Mst. Umri v. Ghulam Rasool and 2 others 1998 CLC 291; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ashiq Hussain v. Ashiq Ali 1972 SCMR 50; Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34; Mst. Sohab Kulli and 3 others v. Mst. Balour Jan and 8 others 1989 CLC 407; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Nazir Ahmad v. Ghulam and another 1987 SCMR 1704; Srimati Saratkumari Dasi v. Amulyadhan Kundu and others AIR 1923 PC 13; Ananda Priya Baishnwavi v. Bijoy Krishna Ray AIR 1926 Cal 643; Mst. Umrao Begum and others v. Sheikh Rahmat Ilahi AIR 1939 Lahore 439; Ghulam Zahoor and 6 others v. Faisal Farooq and 5 others 2000 YLR 1971; Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Hassan Din v. Hafiz Abdus Salam and another PLD 1991 SC 65; Qamarud-Din v.
Muhammad Din and others PLD 2001 SC 518; Government of Sindh and others v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Ejaz Ahmad v. Muhammad Ali and 2 others 2003 SCMR 1768; Muhammad Rashid and others v. Shahid Aziz and others 2003 SCMR 789; Ghulam Muhammad and others v. Ali Asghar and another 2003 CLC 936 and Ghulam Muhammad alias.
Gama and another v. Waryam 2004 CLC 1.
6. On account of the above pleas and the case-law cited, it is submitted that the orders/judgments and decrees of the Courts below are based upon misreading and non-reading of the material evidence, on the record, such are the whimsical opinions of the Courts, and thus cannot be sustained, even it being the concurrent finding of fact, and can be set aside in the revisional jurisdiction. In this behalf, the learned counsel has relied upon the case reported as Alamdar Hussain v. Nazir Hussain and others 2004 SCMR 595.
7. As regards Writ Petition No,521 of 1991, which arises out of the proceedings under section 12(2), C.P.C., it is argued by, Ch. Imdad Ali Khan, the learned counsel for the petitioners, that Muhammad Latif, the alleged stamp vendor and the scribe of the Mark-A, on the basis of which, primarily, the decree dated 30-6-1990, in the suit filed by the respondent was passed, has stated that he did not know Mst. Mashan personally; he has also conceded that the thumb-impressions of Mst. Mashan on the document, which are appended on the bottom of the Mark-A, were already there, while the writing was made on the thumb-impression, thus it is submitted that the document was blank with some thumb-marks of someone thereupon and was written afterwards. Furthermore, it is submitted that R.W.1, Ali Akbar, Advocate, who allegedly represented Mst. Mashan in the suit and acted as her counsel, has conceded that he had not known the lady. He has further argued that the comparison of the thumb-impressions of. Mst. Mashan was never sought by the respondent through an expert, though onus to prove that she has executed the document was on him, therefore, presumption be accordingly drawn against the respondent.
8. Ch. Imdad Ali Khan, learned counsel for the petitioners has further submitted that the alleged compromise (Mark-A), was never set out as a defence in reply to the application under section 12(2), C.P.C. Filed by the plaintiff; while recording the statement of Mst. Mashan in the proceedings under section 12(2), C.P.C. As A.W.1, the learned trial Court, gave a note that she was hard of hearing and it was difficult to record her statement; this shows that she being an old infirm pardanashin lady, was incapable of giving the free consent for the decree; Mst. Mashan in her statement-in- chief, has deposed that in fact Fakhar Imam had produced his maternal grandmother Mst. Zainab Bibi in her place to obtain the fraudulent decree and this part of the statement has not been subjected to cross-examination and thus this fact should be deemed to have been admitted. It is also argued that Azam AW-2, has categorically mentioned that on Mark-A, it is Mst. Zainab Bibi, who had affixed her thumb-impressions in his presence and not Mst. Mashan and that at the relevant time, stamp paper was blank; this part of the statement has not been considered by the learned Courts below.
9. I have heard learned counsel for the parties. The learned Civil Judge, while dismissing the suit for the declaration and permanent injunction of the plaintiff by considering the evidence on the record, has categorically held that Mst. Mashan, had gifted the suit property in favour of the respondent and accordingly got sanctioned the mutation in question; he has also considered the effects of the consent decree dated 30-6-1990, passed in favour of the respondent and against the plaintiff and by dismissing the application under section 12(2), C.P.C., has also concluded that such dismissal shall have bearing upon the suit for the declaration, etc., as well which mainly for the above reasons, was dismissed. The learned Appellate Court, has endorsed the said decree of the learned Civil Judge and has emphasized that view of the decree dated 30-6-1990, which has been unsuccessfully assailed by Mst. Mashan through an application under section 12(2), C.P.C.; the appeal is not maintainable; this concludes the fate of the suit for the declaration and permanent injunction of the petitioner's side.
10. As regard the other suit for the possession under section 9 of the Specific Relief Act, is concerned, which too has been dismissed by the Courts below, it has been held on the basis of the evidence on the record and especially the compromise and the consent decree dated 30-6-1990, that it is not proved, if Mst. Mashan was dispossessed, as has been alleged by her in the suit.
11. In the above backdrop, the emphasises of the two Courts below have been upon the consent decree dated 30-6-1990, passed in favour of the respondent and against the plaintiff and dismissal of her application under section 12(2), C.P.C. I am also of the view that such decree and the result of the application under section 12(2), C.P.C., have grave and deterring effect upon the dispute inter se the parties, and are foundational in nature, which shall determine the fate of these cases. If the consent decree dated 30-6-1990, sustains, obviously, the two suits for the declaration, etc. And the, possession under section 9 of the Specific Relief Act, filed by the plaintiff, fails; but if the consent decree dated 30-6-1990 is set aside under section 12(2), C.P.C., the fate of the litigation shall be different, therefore, I have discreetly examined the decisions of the two Courts below to ascertain, if the findings of the facts recorded by the Courts in the proceedings under section 12(2), C.P.C., are in accordance with the evidence of the parties on the record or suffers from any amiss of misreading or non-reading thereof. My consideration reveals that at the time of the consent decree, Mst. Mashan was identified by her photograph and the photo copy of her identity card, which documents are attached along with the compromise deed (Mark-A), these all were before the Court, duly submitted by the parties, at the time, when the consent decree dated 30-6-1990 was passed. And Mst. Mashan made the following statement:- {{URDU TEXT}} ' Azam A.W.-2, who had identified Mst. Mashan at the time of the execution of the compromise deed (Mark-A), though has denied the identification, but has admitted his signatures upon Mark-A; his statement has not been believed by the two Courts below, and the Courts have rightly held that Mst. Mashan, has failed to discharge her initial burden of proof; that she has not executed the compromise deed (Mark-A) and has not appeared before the Court, through her counsel.
' From the above unambiguous and categorical statement of Mst. Mashan, it is established on the record that she out of her free-will and the consent had acknowledged the making of the oral gift and the delivery of the possession to the respondent. Obviously, in such a circumstances, she was estopped and debarred to challenge the consent decree and the mutation of the gift affirmed in favour of the respondent through the said decree and to ask for the declaration of the ownership of the suit property and to seek the possession under section 9 of the Specific Relief Act. I must appreciate that both the Courts below have A taken pains in analyzing the evidence on the record in the proceedings under section 12(2), C.P.C. Produced by both the parties and have concurrently, by giving cogent reasons, concluded that it is Mst. Mashan, who had appeared before the Court and has admitted/conceded the suit of the respondent, through which She obviously admitted the making of the valid gift in his favour; there was no ambiguity or doubt about her identification or the presence before the Court; such findings being concurrent, are not shown to be the result of any misreading and non-reading of the evidence, therefore, cannot be set aside in the exercise of the constitutional jurisdiction.
12. As regards the argument of learned counsel for the petitioners that there are certain discrepancies in sanctioning of the mutation; that Mst. Mashan, was an old illiterate lady and that the respondent has never applied for comparison of the thumb-impression of Mst. Mashan through Finger Print Expert, suffice it to say that the discrepancies mentioned by the learned counsel have lost their significance and cannot be made the basis of upsetting the concurrent finding of fact recorded by the Courts below, specially because of Mashan's acknowledgment of the gift vide consent decree dated 30-6-1990, which has rightly not been upset by the Courts below in the proceedings under section 12(2), C.P.C.; as to the plea about the lack of advice to her by a male member is B concerned, it is irrelevant, because she was not married, having no issue from whom, she could obtain the advice about the transaction; both her brothers were also dead by the time; moreover, it is proven on the record that admittedly throughout her life, she has been living with Suleman her brother, the father of the respondent, and even after the demise of Suleman, she was being looked after by, the respondent's family, therefore, if she has made the gift in favour of her minor orphan nephew, it B appears to be very natural and for valid consideration; the question of Mashan's being illiterate or pardanashin lady, also has no much significance, in the matter, because, according to the record, she appeared before the Court and admitted the gift verbally, which statement was duly recorded. Like the two Courts below, I am convinced that it is Mst. Mashan, who executed the compromise deed (Mark-A), appeared before the Court, made the statement and was duly identified through her photograph and the photocopy of the identity card and this was sufficient proof of her appearing before the Court and admitting about the gift.
Therefore, as no misreading and non-reading has been shown to have been committed by the two Courts below, I do not find this to be a fit case for interference in my constitutional jurisdiction.
13. Before parting, it may be observed that through the order dated 14-7-2005, for the satisfaction of the Court, but without in any manner, requiring it as an additional evidence, some thumb- impressions of Mst. Mashan, on different documents were referred to the Finger Print Bureau for the opinion and a report was submitted by the expert before this Court upon which, the respondent has raised objection. However, when specifically asked in the Court before the start of the arguments, if such report should be taken as additional evidence in the matter, Ch. Imdad Ali Khan, very categorically has stated that it should be so done and should be ignored and that the case should be decided on the basis of the material already available on the record; it is for this reason that the experts were not called as the witnesses to prove their report and to subject them for examination of the respondent.
' In the light of above, I do not find any merits in these petitions, which are hereby dismissed without any order as to the costs.