JUDGMENT SYED JAMSHED ALI, J. - This appeal by leave of this Court is directed against the order dated 28.11.2002 of the learned Lahore High Court whereby revision petition No. 1528/1998 of the appellants was dismissed. Leave was granted by the Court vide order dated 25.11.2003, inter alia, in the following terms:- "Leave is granted to reappraise 4th evidence to determine whether the first Appellate Court and the High Court have committed gross error of law by reversing well-considered findings of the Trial Court and in doing so, they have misread and ignored the material piece of evidence."
The facts of the case are noted hereunder.
2. Lala deceased maternal uncle (Mamoon) of Amir Ali, Appellant No. 1, owned land measuring 277 kanals in un-partitioned Khatas which he orally gifted in latter's favour on which Mutation No. 1329 was attested on 31.8.1966. The aforesaid Lala died 0n 1,8.1990. Mst. Beevi and Mst. Fazlan, respondents Nos. 1 and 2, the two daughters of Lala from Mst. Jallan, filed a suit assailing the said mutation on the ground that the deceased was suffering from multiple diseases and that the mutation in question was the outcome of fraud and forgery. The donee, Muhammad Amir .Mst.
Aisha widow of Lala and her two real daughters namely Mst. Naziran and Mst. Manzooran (wife of Muhammad Amir), filed a joint written statement. Affirming the factum of gift and denying that Lala, the donor, was suffering from any disease.
3. The parties led evidence in support of their respective pleas. The learned Trial Court, vide judgment dated 18.12.1994, dismissed the suit, it was found that Lala deceased had validity made gift of his land in favour of Muhammad Amir and that the mutation was rightly attested. The suit was held to be barred by time, The learned Trial Court, in reaching this conclusion, not only relied upon the evidence of DW.2, Bashir, Lumberdar, of the concerned revenue State who had identified Lala deceased before the Revenue Officer but also took into consideration testimony of D.W.3, Gahara, a tenant in possession of the land in dispute ' who had attorned to Muhammad Amir, the donee. The statements of Muhammad Amir, DW.1, and Bkhsha (DW.4), real elder brother of Muhammad Amir, were also relied upon Ex. D.5 to D.10 Jamabandies for the years 1966-67 to 1986- 87 were also taken note of the evidence produced by the plaintiffs-respondents Nos. 1 and 2. Was also considered and it was noted that there was hardly any evident to prove their case.
4. Respondents Nos. 1 and 2, filed an appeal before the learned District Court which was allowed with the observation that Lala deceased had been fulfilling ail his needs from the income of the land. Therefore, delivery of possession was not proved nor any valid gift was proved by any independent evidence and that the mutation was not thumb marked, or signed by Lala deceased.
Bakhsha DW.4, was noted but he was not expressly disbelieved. Evidence of DW.2, and Ex. D.5 to D.10 the Jamabandies were, however, not considered.
5. The appellants filed a revision petition before the learned High Court which was dismissed vide the impugned order with the observations that the DW.4 Bakhsha, was the real brother of Muhammad Amir, the donee and. Was thus, on interested witness, it was not proved that Lala had appeared before the Collector at the time of attestation of mutation and that the person identifying Lala before the revenue Officer was not produced. There were no signature or thumb impression of Lala deceased on the disputed mutation, that while the gift was statedly made in 1966 marriage of Manzooran was solemnized with the donee in 1971. Lala lived on the income of the said land, mutation by-itself was not evidence of little and that although in the earlier suit filed by the two collaterals Of Lala, he had admitted the factum of gift but. The written statement in that case was not duly proved.
6. The learned counsel for the appellants contends that the learned High Court misread the evidence. He particularly relied on the statements of DW.2, DW.3 and DW.4 with a grievance that the learned High Court altogether omitted from consideration the statement of DW.2 and rejection of testimony of DW.4 on the ground of mere relationship, was totally arbitrary. He also contended that in the previous suit filed by Nabi Bakhsh and Muhammad Ali, Lala deceased had admitted having made the disputed gift and since he was dead, his statement was admissible in evidence by virtue of Article 46 of the Qanoon-e-Shahadat Order, and could not have been excluded. He also relied on Ex. D.5 to Ex. D.10 with the grievance that these were altogether ignored from consideration by the learned High Court. He submits that the disputed mutation had been implemented in six Jamabandies and therefore, presumption of truth was attached to the entries therein, In support of his submissions, he placed reliance on Hakim Khan v, Aurangzeb and another (1979 SGMR 625), Abdul and and others v. Roshan Din and 36 others (PLD 1979 Supreme f Court 890) and Ahmad AH and others v. Muhammad Iqbal and another (1986 SCM R 244). *
7. The learned counsel for the respondents Nos.1 and 2, defended the impugned order. His contention is that the question whether the evidence of one party should or should not have been believed is not a fit subject-matter for examination by this Court. He relied on the statement of DW.1 (Appellant No. 1) to contend that the deceased Lala had been enjoying the usufruct of the gifted land and, thus, he had no bona fide intention to make a gift. He submits that the gift was from un- partitioned Khata and was, thus, hit by doctrine of Musha and that the only evidence of the transaction was furnished by Bakhsha (DW.4), real brother of Muhammad Amir and he was rightly disbelieved by learned High Court.
8. We have considered the submissions made by the learned counsel for the parties. The case of Muhammad Amir was that oral gift was made in presence of Mst. Manzooran, his wife, Mst.
Naziraan and Bakhsha when the latter had gone to ask for the hand of Mst. Manzoor for the donee.
They were close relatives of the deceased and their presence in the house was not un-natural.
While the learned first Appellate Court did not expressly disbelieve Bakhsha, DW.4, the learned High Court disbelieved him on the ground of mere relationship with Muhammad Amir which could hardly be a ground to reject the evidence of a natural witness. We will also like to observe that the evidence of the transaction, as furnished by DW.4, and Muhammad Amir Appellant No. 1, was to be viewed in the context of totality of the facts and circumstances of the case brought out on the record.
9. The learned High Court while observing that no evidence was produced that Lala appeared before the Collector (perhaps Assistant Collector was meant) at the time of attestation, of the mutation ignored the evidence of DW.2, Lumberdar of the concerned revenue estate who stated that he had identified Lala deceased before the Revenue Officer before whom, the donor, had affirmed having made the disputed gift. Omission to consider the evidence of DW.2, by learned High Court, in our view, had material bearing oh the fate of this case. The learned High Court observed that the donor did not sign the mutation register, it was omitted from consideration that paragraph 7.4 of the Land Record Manual prohibits taking of signature on the mutation sheet by the Patwari or the Revenue Officer. Even according to Section 34 of the Punjab Land Revenue Act, 1887 (which was in-for on 31.8.1966 when the disputed mutation was attested) did not require signature of the parties on the mutation sheet. The other consideration which weighed with the learned two Courts is setting aside the judgment of the Trial Court was that the donor lived on the income of the said land with the result that possession of the land was not delivered to the donee, it was come on the record that Lala had no male issue, the donee lived with his . Donor right from his childhood and was looking after his Mamoon, the donor. Therefore, in the circumstances if during his life-time, the donor was enjoying usufruct of the land in dispute it was not unusual nor it distracted from completeness of the gift in any manner whatever. Moreover, the plaintiffs in their plaint had never raised the plea that gift was bad for non-delivery of possession. Thus, the gift made in favour of appellant No. 1, could not be condemned on the basis of this plea.
10. The learned first Appellate Court and the learned High Court ignored from consideration that mutation entries when incorporated in the record-of-rights carry presumption of truth, In this case the entries of mutation were given affect to in the Jamabandies of 1966-1967 (Ex. D.5), 1969-1970 (Ex. D.6), 1974-1975(Ex. D.7), 1978-1989 (Ex. D.8), 1982-1983 (Ex. D.9) and 1986-1987 (Ex. D.10). The following observations of this Court in Abdul and and others Vs. Roshan Din and 36 others (PLD 1979 SC 890) illustrate the principle:- "When a mutation gets incorporated in Jamabandi (i.e. Annual record) then as held in Bhagwan Das v. Mangal Said (1), Jamabandi carries a presumption of truth and the learned . District Judge in the circumstances was not justified to ignore the said jamabandi* and its corresponding supporting mutation."
11. Another important feature of the case which escaped attention of the learned two Courts was that Lala died on 1.8.1990, almost 24 years, after having made the gift. No explanation whatsoever has been brought on the record as to why Lala did not, in his life-time, challenge the said transaction, except the submission of the learned counsel for respondents Nos. 1 & 2, before us that may be Lala did not know about the gift. This explanation is not at all acceptable for the reasons that one Muhammad Ali and Nabi Bakhsh, had on 26.3.1969, filed a suit challenging the disputed gift against Lala the donor and Muhammad Amir the donee, In this suit the donor had affirmed having made the disputed gift in favour of the donee. The learned High Court also did not consider the said written statement (Ex. D.2) on the ground that it might to have been proved. This view, we cannot subscribe in view of Article 46 of the Qanoon-e-Shahadat Order, according to which, the statement in writing was admissible in evidence and secondly it was a document forming part of judicial record and was exhibited without any objection. The position taken in the written statement in the said suit was consistent with the conduct Lala deceased by not challenging the mutation in his life-time. The learned two Courts also ignored from consideration that in this suit (out of which the present litigation has arisen), Muhammad Amir the donee, wife of Lala, Mst. Aisha and the two daughters, Mst. Manzooran and Mst. Manzooran had submitted a joint written statement in which they had admitted the faction of gift, In admitting the factum of gift, Mst. Aisha, widow of Lala, and Mst. Manzooran the daughter of Lala were giving up their claim to inherit the estate of Lala deceased. The admission may not be binding on respondents Nos. 1 and 2, but furnished strong evidence of faction of gift.
12. DW.3, Gahara, who was a tenant on the land in dispute, clearly stated that he has been paying produce to the donee Muhammad Amir, Therefore, the findings of the learned two Courts that gift was not complete, was arrived at by ignoring or misreading of material evidence. Once the transaction of gift and the mutation in question were shown to have been duly proved it was. For the plaintiffs-respondents to lead satisfactory evidence to establish the contention that it was the outcome of fraud. There was no evidence in support of this plea.
13. We have considered the submissions of the learned counsel for respondents Nos. 1 & 2, i.e. That there was no bona fide intention to make a gift, or that it was hit by doctrine of Musha. We are not impressed because although none of the afore-said two pleas was raised by the respondents as they had totally denied the gift and dubbed it as the outcome of fraud and forgery yet we will like to observe that donor's long silence for 24 years, was a sufficient circumstance establishing his bona fide intention to make a gift. As to the second contention suffice it to say that a share in un- partitioned Khatta could be lawfully alienated by way of gift and the doctrine of Musha was not attracted. A similar argument was raised in Hakim Khan v. Aurangzeb and another (1979 SCM R 625) but was repelled with the following observations:-- "The entries in jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act XV of 1887 and Section 52, West Pakistan Land Revenue Act XVII of 1967. As against the aforesaid hold statements of the kind mentioned above can hardly cut any ice.
In this state of affairs the objection of invalidity of mushaa gift on ground of non-delivery of possession factually goes away as was held in Sanaullah Fakir v. Alam Fakir and others (1) and Sahib Dad v. Muhammad Ajaib and another (2) approving Sheikh Muhammad Mumtaz Ahmad and others v. Zubadia Jan and others (3)"
14. We will like to add that the contention that the donor perhaps did not know the mutation is, in the circumstance, not believable for the reason that a land owner is required to pay a number of Government dues on each crop and it is not possible that till his death which occurred after almost 24 years of the gift Lala remained unaware of attestation of the mutation. DW.3 and stated that after one year after the gift Muhammad Amir had taken back the land from him but after two years it was again given to him for cultivation and at that time consolidation had already taken place.
Thus* according to his evidence, consolidation had taken place somewhere in 1969-70. Since in the consolidation, wandas are made afresh it is not possible for a land owner not to come to know of a transaction in, which his property stands alienated in favour of somebody else.
15. For the reasons stated above, this appeal is allowed, the judgments and decree of the learned first Appellate Court and the learned High Court are set aside and that the learned Trial Court dismissing the suit restored. No order as to costs.