' 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 of 1998 of the appellants was dismissed. Leave was granted by this Court vide order dated 25-11-2003, inter alia, in the following terms:- ' "Leave is granted to reappraise the 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 unpartitioned Khatas which he orally gifted in latter's favour on which Mutation No,1329 was attested on 31-8-1966. The aforesaid Lala died on 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 judgement dated 18-12-1994, dismissed the suit. It was found that Lala deceased had validly 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 D.W.2, Bashir, Lumberdar, of the concerned Revenue Estate, 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, D.W.1, and Bakhsha, (D.W.4), real elder brother of Muhammad Amir, were also relied upon Exh.D.5 to D.19 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 evidence to prove their case.
4. Respondents Nos.1 and 2, tiled an appeal before the learned District Court which was allowed with the observation that Lala deceased had been fulfilling all 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 D.W.4, was noted but he was not expressly disbelieved. Evidence of D.W.2, and Exh.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 D.W.4 Bakhsha, was the real brother of Muhammad Amir, the donee and was thus, an 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 title 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 D.W.2, D.W.3 and D.W.4 with a grievance that the learned High Court altogether omitted from consideration the statement of D.W.2 and rejection of testimony of D.W.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 Qanun-e-Shahadat Order, and could not have been excluded: He also relied on Exhs.D.5 to 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 SCM R 625; 'Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 and Ahmad Ali 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 D.W.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 unpartitioned Khata and was, thus, hit by doctrine of Musha and that the only evidence of the transaction was furnished by Bakhsha (D.W.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. Naziran and Bakhsha when the latter had gone to ask for the hand of Mst. Manzooran for the donee. They were close relatives of the deceased and their presence in the house was not unnatural. While the learned first appellate Court did not expressly disbelieve Bakhsha, D.W.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 D.W.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 D.W.2, Lamberdar 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 D.W.2, by learned High Court, in our view, had material bearing on 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 force 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 in 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 has 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 lifetime, the donor was enjoying usufruct of the land in dispute it was not unusual nor it detracted from B completeness of the gift in any manner whatsoever. 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 the rights carry presumption of truth. In this case the entries of mutation were given effect to in the Jamabandies of 1966-67 (Exh.D.5), 1969-70 (Exh.D.6), 1974-75 (Exh.D.7), 1978-89 (Exh.D.8), 1982-83 (Exh.D.9) and 1986-87 (Exh.D.10). The following observations of this Court in Abdul Ahad and others v. 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 lifetime, challenge the said transaction, except the submission of the learned counsel for respondents Nos.1 and 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 (Exh.D.2) on the ground that it ought to have been proved. This view, we cannot subscribe in view of Article 46 of the Qanun-e-Shahadat Order, according to which, the statement in D 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 of Lala deceased by not challenging the mutation in his lifetime. 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. Naziraan had submitted a joint written statement in which they had admitted the factum of gift. In admitting the factum of gift, Mst. Aisha, widow of Lala, and Mst. Naziraan the daughter of Lala were giving up their claim to inherit the estate of Lala deceased. This admission may not be binding on respondents Nos.1 and 2, but furnished strong evidence of factum of gift.
12. D.W.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 E 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 and 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 aforesaid 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 unpartitioned Khata 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 bald statements of the kind mentioned above can hardly cut any ice.
In this state of affairs the objection of invalidity of Musha gift on ground of non-delivery of possession factually goes away as was held in Sanaullah Fakir v. Alain Fakir and others (1) and Sahib Dad v. Muhammad Ajaib and another (2) approving Sheikh Muhammad Mumtaz Ahmad and others v. Zubaida 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 landowner 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. D.W.3 had 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, wands 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.