' JAWWAD S. KHAWAJA, J.--Qasim Ali petitioner/plaintiff impugns the concurrent decrees of the learned trial Court, dated 28-3-2002 and of the learned Appellate Court, dated 26-8-2004, whereby a suit filed by him seeking declaration with injunction by way of consequential relief has been dismissed.
2. The facts of this case are simple. Qasim Ali petitioner/plaintiff was, according to his own testimony 80 years old when he testified in Court. He is unmarried. He, according to the plaint, owns the suit property measuring 58 Kanals, 16 Marlas situated in Chak 3/SP, Tehsil Depalpur. A gift mutation, purportedly at his behest, bearing No,1112 (Exh.P-1/ Exh.D-2), dated 14-2-1990 has been sanctioned, whereby he is stated to have gifted the suit property to the respondent Mst. Amina Bibi, who is his niece.
3. The suit prayed that the said mutation be declared to be a fabrication and the petitioner be declared to be owner of the suit property. The suit was resisted by the respondent/defendant Mst.
Amina Bibi, who claimed that the property had been validly gifted to her. The learned trial Court framed as many as 8 issues but Issue No,6 is the crucial one which was framed in the following terms:--- "Whether the oral mutation of Gift No,1112, dated 14-2-1990 by the plaintiff in favour of the defendant is against the facts and law and is based on fraud, forgery which is inoperative and ineffective upon the legal rights of the plaintiff, so the same is liable to be set aside? OPP."
4. The petitioner himself appeared in Court as P.W.1 and denied that he had made any gift in favour of the respondent/defendant. He expressly denied having appeared before the Patwari or Tehsildar. In addition, he also denied that he thumb-marked any rapt roznamcha waqiati or the mutation in question.
5. Learned counsel for the petitioner contends that in view of the above testimony, the onus of proof, which initially had been placed on the petitioner, was shifted into the respondent/defendant.
She did not produce the best evidence and nor did she move any application to have the petitioner's thumb-impression compared with the thumb-impression appearing on the impugned mutation. In addition, the Tehsildar, who appeared as D.W.4, also stated that he did not recollect the circumstances which the mutation was attested.
6. Most importantly, however, learned counsel points out that when Mst. Amina Bibi (D. W.1) appeared as her own witness, she admitted that the petitioner had not affixed his thumb- impression on the mutation at the time of the presentation of the mutation in the public assembly.
According to her, the thumb-impressions had previously been placed on the mutation. This testimony is in conflict with the statement given by the Patwari, who deposed that the thumb- impressions were affixed before the Tehsildar.
7. Unfortunately, the learned Courts below have not taken into account, the above referred circumstances which clearly show that the respondent Mst. Amina Bibi had failed to discharge the onus of proof in respect of issue No,6 which had shifted to her after the evidence produced by the petitioner/plaintiff. The impugned decrees, therefore, are not legally sustainable and resultantly are set aside. As a consequence, the suit of the petitioner/plaintiff is decreed as prayed for.