MUHAMMAD JEHANGIR ARSHAD, J. His civil revision is directed against the judgment and decree dated 28.7.2001 passed by the learned District Judge, Hafizabad whereby the learned District Judge .Dismissed petitioners appeal against the judgment and decree of the learned. Senior Civil Judge, Hafizabad dated 23.4.2001 decreeing declaratory suit filed by Mst. Rasoolan Bibi, the predecessorin-interest of the preserit respondents.
2. The facts significantfor the disposal of this civil revision briefly stated are that Mst. Rasoolan Bibi, predecessor-in-interest of the respondents filed a suit for declaration before the learned Trial Court claiming to be the owner of the agricultural land measuring 23-kanals, 5-marlas described in the head note of the plaint and challenging the gift mutation No. 77 sanctioned on 12.8.2006 on her behalf in favour of the respondents as against law, facts, based on fraud, hence ineffective qua her rights and for permanent injunction as a consequential relief. It was stated in the plaint that she inherited the disputed land,from her father and was thus owner of the same and that the said land was being cultivated by her brother Nazir Ahmad as a co-sharer who used to give her share of produce during his life time and thereafter respondents son also had been giving share of produce to her and the deceased respondent who is an old simple illiterate lady suffering from Tuberculosis was suddenly shocked when the respondents finally refused to Pay share of produce for a Rabi 1997 crop and on their refusal when deceased respondent decided to file partition proceedings against the petitioners and for that matter she approached the Patwari of the area for obtaining certified copies 15 days before she became to know that the petitioners fraudulently got mutation of gift No. 77 sanctioned on 12.8.1996 on her behalf in their favour- whereas she neither gifted away the said property to the respondents nor ever appeared before the Revenue Officer and got the same sanctioned as there was no question of gifting her property in favour of petitioners who are her nephews in the presence of his sole son. The suit was contested by the present petitioners by way of filing written statement wherein besides taking legal objections the factum of gift. In their favour by deceased respondent Mst. Rasoolan Bibi was specifically.
C.L.R. claimed denying her allegation of having committed any fraud. The learned Trial Court keeping in view the contesting pleadings of the parties framed the following issues and directed the parties to produce evidence:---
(I) Whether the suit is out-come of collusion between the plaintiff and the defendants No. 7 to 9? If so its effect? OPD
(ii) Whether the suit is bad in the eyes of law due to mis-joinder of the parties? OPD (i.e) Whether the plaintiff is estopped by her words and conduct to bring the instant suit? OPD
(iv) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD
(v) Whether the defendants No. 1 to 6 are entitled to recover ,the special cost under section 35-A, C.P.C.? If so, up to what extent? OPD
(vi) Whether the plaintiff is owner in possession of the disputed property and the defendants have no concern with the same? OPP
(vii) Whether the mutation of gift deed , No.77 dated 12.8.1996, is against law and facts, result of fraud and mis-representation, void and in-effective qua the rights of the plaintiff? OPP
(viii) Whether the plaintiff is entitled to get the decree of declaration as well as permanent injunction as prayed for? OPP
(ix) Relief.
Mst. Rasoolan Bibi deceased respondent appeared herself as PW-1 and closed her affirmative evidence by tendering . Documents Exh.P-1 and Exh.P-2. On the other hand, petitioners produced Muhammad Ismail, Naib Office Qunugo DW-1, Falak Sher, Patwari DW-2, Muhammad Aslam Feroze, Tehsildar, Pasrur DW-3, Mulla DW-4, Muhammad Hussain DW-5 and Allah Ditta one of the petitioners appeared as DW-6, closed their evidence by tendering documents Exh.D-1 to Exh.D-7.
On the conclusion of the trial the learned Trial Court vide judgment dated 23.4.2001 decreed the suit in favour of deceased respondent Mst. Rasoolan Bibi. Against the judgment and decree of the learned Trial Court present petitioners preferred appeal but the same was also dismissed by the learned Additional District Judge, Hafizabad on 29.11.2000, hence this revision.
3. It has been argued by the learned counsel for the petitioners with vehemence that it is established from the evidence on the record that Mst. Rasoolan Bibi not only gifted away the suit property in favour of the petitioners with her free consent but also Physically appeared before the Revenue Officer and got the said mutation attested voluntarily and that the deceased respondent has failed to establish any element of fraud having been practiced against her. It is also submitted by the learned counsel for the petitioner that in fact dispute arose between the parties after the attestation of gift Mutation in dispute because her daughter who was married with one of the petitioner Khizar was deserted by said Khizar and in consequence thereof the son of Mst. Rasoolan Bibi also deserted her were who is the sister of petitioners and this dispute persuaded Mst.
Rasoolan Bibi to revoke the gift otherwise she had voluntarily transferred the property in favour of the petitioners.
4. On the other hand, learned counsel for the respondents argues that the petitioners have miserably failed to prove the factum of gift in question in their favour as well as the fact that Mst.
Rasoolan Bibi ever appeared before the Revenue Officer and got the property in dispute C.L.R. transferred in favour of the respondents by way of gift. Learned counsel for the respondents further argued that it was beyond comprehension that Mst. Rasoolan Bibi was .Transferring her property in favour of her nephews in the presence of her sole son and that there was no truth in the allegation of petitioners that there on account of dispute over matrimonial life of her son and daughter with the petitioner, Mst. Rasoolan Bibi decided to revoke the gift whereas it is established from the record that the that the said dispute was already in existence before the attestation of said mutation, hence the said plea of the petitioners was not sustainable. Learned counsel for the respondents has further argued that in fact the name, of the petitioners mother is also Rasoolan Bibi and it is established from the record rather admitted by the petitioners that on the same date Mst. Rasoolan Bibi petitioners mother appeared before the Revenue Officer and got her property transferred/mutated in favour of the petitioners which fact is also borne out from the entries of the mutation in dispute wherein Mst. Rasoolan Bibi whosoever appeared before the Revenue Officer stated that she was transferring her property in favour of her sons and it is admitted by Tehsildar/Revenue Officer DW3 in his statement that the said entry was wrongly corrected by the Patwari who had no authority to do so without having obtained permission from the competent authority. Further it has been argued that petitioners have not been able to produce any evidence on the record to establish the identity of Mst. Rasoolan Bibi deceased respondent before the Revenue Officer through an independent evidence and that neither her husband not her son was present before the Revenue Officer at the time of attestation of mutation. It is also argued that most probably taking advantage of the presence as well as identity of name Mst. Rasoolan Bibi who had appeared for transfer of the property in favour of the petitioners, the petitioners also thought of getting the disputed mutation attested in their favour and in this way they succeed in, obtaining the property of deceased respondent through misrepresentation as well as fraudulent manner. Learned counsel for the respondents has concluded his arguments by contending that the two Courts below have recorded concurrent findings of fact, this Court while sitting in revisional jurisdiction is not supposed to interfere with the same unless the same suffer from jurisdictional defect or based on misreading or non-reading of evidence. The learned counsel in this respect has placed reliance on the case of "Allah Dad and 3 others v. Dhuman Khan and 10 others"(PLJ 2005 SC 509) and "Shah Wali v. Muhammad Iqbal"(PLD 2005 Lahore 214).
5. The above-mentioned arguments of the learned counsel for the parties have been considered with due care and attention and the record available has also been perused with the assistance of both the learned counsel.
6. This being a civil revision as argued by the learned counsel for the respondents and rightly so that this court while , sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the two Courts below unless it is established that the judgments of the two Courts below were without jurisdiction or the two Courts below acted illegally or with material irregularity resulting into mis-carriage of justice. In the case of "Mst. Kulsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135) it was held that revisional jurisdiction cannot be equated with that of appeal or equal to appeal and the High Court before exercising revisional jurisdiction has first to satisfy itself whether the subordinate courts while passing the impugned judgments had the jurisdiction vested in them, 'whether it was a fit case where the revisional jurisdiction ought to be exercised and whether the impugned judgments of the Courts below suffer from illegality or material irregularity resulting into mis -carriage justice. It has also been held by this court C.L.R. in the case of "Shah Wali v. Muhammad Iqbal" (PLD 2005 Lahore 214) that the concurrent findings of fact returned in consonance with the record are immune form interference in revisional jurisdiction of High Court as mandated by Hon'ble Supreme Court of Pakistan in a chain of contesting judgments.
7. In the light of abovementioned dictum of superior Courts whether the findings of two Courts below in the present case fulfill the above requirements and that this is a fit case for interference by this Court in the revisional jurisdiction, the learned counsel for , the petitioners has not been able to point out any misreading or non-reading of evidence and has tried to persuade this Court to re- appraise the evidence on the issue of gift in dispute in favour of the petitioners. The learned Civil Judge after proper appraisal of evidence has recorded the following findings on issue No. 7.
"The perusal of the evidence brought on the file shows that alleged gift by the original plaintiff in favour of the defendants Nos. 1 to 6 was unconscionable on the face of it. The relations between the parties were not cordial to result in to the gifting of 23 kanals of her level in favour of her brother's sons after depriving her only son and two daughters. The family dispute between the parties was already in existence about five years prior to the mutation as admitted by DW-5. The plaintiff being an old, aged lady, it has not been shown that the nature of the transaction was explained to her.
The absence of her son or husband is conspicuous especially when as stated by DW-5 the gift PW- 3 Mst. Rasoolan Bibi that the donor was gifting the disputed land in favour of her son clearly show that the gift was not by the plaintiff but by the mother of the defendants in their favour. The over writing on the remarks regarding the relation ship of the donees with the donor makes the whole exercise dubious . The Revenue Officer attesting the mutation has not given the parentage of Mst.
Rasoolan Bibi in his order and he only mentioned her as the, donor. It also makes the whole proceedings doubtful especially when the two women of the same name were allegedly effecting separate transaction in favour of the defendants. In view of the above discussions the plaintiff has succeed to prove that the disputed gift No. 77, dated 12.8.1996 is against law and void and a result of fraud and misrepresentation and ineffective over her tights and this issue is decided in favour of the plaintiff and against the defendants."
8. Similarly the learned Appellate Court has concurred with the findings of the learned Trial Court by holding as under:- "According to law, the moment. The plaintiff denied to have gifted her land in favour of defendants the onus to prove the issue No. 7 shifted to the defendants. The defendants/appellants order to discharge the said onus, got examined Muhammad Ismail, Naib Office Kanoongo who simply brought the record of disputed mutation. Falak Sher Patwari appeared as DW-2 who stated that he entered the mutation and got the same sanctioned with the consent of the plaintiff. But in the cross examination, he stated that the plaintiff was not previously known to him and that she was not accompanied with her son or husband at the time of entry or of sanction of mutation. Muhammad Aslam Feroze, Tehsildar, who attested the mutation in question, also stated that he attested the said mutation after having statement of plaintiff. But in the cross-examination, he sated that three mutation were sanctioned on 12.8.96. The first mutation was sanctioned regarding inheritance of defendants , the other was sanctioned on behalf of mother of defendants in their favour and the third was sanctioned on _behalf of plaintiff. It is note worthy that the name of mother of defendants/appellants is also Mst. Rasoolan Bibi who appeared at the time of sanction of her gift mutation on 12.8.19996. The said Revenue Officer (D.W.3) admitted that on the mutation of mother of defendants/appellants, a photograph of their mother has been attached therewith but no photograph of the plaintiff was attached with the impugned mutation and only a photo copy of identity cared was attached. He also admitted it correct that a note has been given at the disputed mutation that the gift was being sanctioned on behalf of the mother in favour of sons. This fact has also been born out from the perusal of disputed mutation Exh.P-1/D.6 which indicate that a note by Patwari has been given to the extent that the gift is being sanctioned on behalf of mother in favour of sons which leads to the conclusion that the said mutation was sanctioned on behalf of Rasoolan Bibi mother of the defendants/appellants. Muhammad Hussain DW-5 who is also related to the parties and allegedly attested the mutation, sated in the cross examination that relations of the parties became strained five years before his statement., His statement was recorded on 2.2.2000 meaning thereby that the relations of the parties became strained in the year, 1995 but the mutation in question was allegedly sanctioned in August, 1996. It is not possible and even one cannot think about it that the daughter and daughter in law of the plaintiff were ousted by their relevant husband and thereafter, the plaintiff would gift her property to the in-laws of her oustee daughter. Although. The appellants/defendants have produced all the possible witnesses to prove the issue of gift but the quality of said evidence issue poor that it could not discharge the onus of issue No. 7. The learned Trial Court has discUssed the evidence of the parties under the said issue and her rightly decided the same in favour of the plaintiffs and against the defendants/appellants.
Therefore, the findings of the learned Trial Court on issue No. 7 are upheld."
9. The perusal of the abovementioned findings of the two Courts below leave no doubt at all that either the same suffer from jurisdictional defect or result of misreading, non-reading of evidence or the same have been recorded by committing any illegality irregularity resulting in miscarriage of justice.
10. The up shot of the above discussion is that this revision has no force and the same is dismissed with no order as to costs.