' SYED HAMID ALI SHAH, J.---This judgment shall dispose of Civil Revision No,56-D-1998 and Civil Revision No,57-D-1998, as common questions of law and facts are involved.
2. Both the revision petitions arise out of the consolidated judgments and decrees, dated 3-1-1998 of Muhammad Gulzar Ahmad Butt, learned Addl. District Judge, Mandi Baha ud Din,. Whereby he accepted appeals of the respondents against the judgment and decree, dated 19-2-1995 of learned Civil Judge, M.B. Din, whereby identical suits for decrees for declaration against the revision petitioners were dismissed.
3. It would be pertinent and advantageous to glance through chequered and protracted litigation with fluctuating fortunes. Allah Ditta son of Taja, predecessor-in-interest of the parties was owner of landmeasuring 260 kanals 4 marlas, located in Mauza Ranmal Sharif Tehsil Phalia District M.B.
Din. The aforesaid Allah Ditta was unmarried. Person, who through oral Mutation No,986, attested on 23-11-1962, purportedly gifted away the disputed land to Muhammad Inayat (petitioner No,1).
Subsequently on 23-1-1963 Salhoon, predecessor-in- interest of the respondents brought a declaratory suit against Muhammad. Inayat/petitioner No,1. Allah Ditta, donor was arrayed in the suit as defendant No,2. It was asserted in the plaint that the gift was against the reversionary rights of the plaintiff because under the prevalent custom, the donor had no power to gift away the disputed land. The donor admitted having made the impugned gift, in his written statement. The suit was dismissed by learned Senior Civil Judge, Gujrat vide judgment and decree, dated 24-11- 1965. The decree for dismissal of suit was assailed in an appeal which was accepted by learned Addl. D.J., Gujrat vide his judgment and decree, dated 14-3-1968. Second appeal was filed in this Court against the appellate judgment, which was accepted on 18-3-1990. However, legal heirs of Allah Ditta, the donor, who had died in the year, 1964, were allowed to assail that gift. Against such a ticklish backdrop, two suits were filed in which the gift was assailed on the grounds of fraud, misrepresentation and non-existence of necessary ingredients of gift. These suits were contested by the petitioners. Appropriate issues were struck, evidence was led and ultimately the suits were dismissed. Appeals were tiled which were accepted, hence these revision petitions.
4. Learned counsel for the petitioners has contended that the onus probandi of issue No,2 which relates to the validity of the impugned gift was upon the respondents, which they failed to discharge and for this reason, this issue was rightly decided against the respondents by learned trial Court. Learned counsel has also contended that learned appellate Court on the basis of imaginary contradictions in the evidence of the petitioners had reversed findings on this issue.
Learned counsel has argued that the donor had himself in the earlier round of litigation appeared in the Court to affirm the authenticity of the gift. Learned counsel has then urged that learned appellate Court committed illegality and material irregularity in reversing the findings of learned trial Court: Learned counsel has referred to Exh.P/9 and Exh.P/10 which reflect the possession and ownership of Muhammad Inayat/petitioner No,1 qua the suit-land. The possession of Muhammad Inayat/petitioner No,1 stands proved through statements of P.Ws. 1 and 2. It was then contended that Hiba was made on 23-11-1962 while Land Revenue Act was enforced in 1967. Provisions of Land Revenue Act, 1887 was applicable to the case of the petitioners which do not put any restraint on the transaction under reference, while referring to the case of "Kala Khan and others v. Rab Nawaz and others" (2004 SCM R 517) to contend that Mutation whichremained unchallenged for a long period, has not been interfered. Cases of "Zil Mahmood and 3 others v. Mst. Hayat Bibi and 2 others"
(1971 SCM R 514) and "Haji Rehmdil v. The Province of Balochsitan and another" (1999 SCM R 1060), were cited to support the contention that suit was barred by limitation.
5. Inversely, learned counsel for the respondents has supported the impugned judgments. Learned counsel has referred to the case-law to show that a Mutation is never considered as a title document. Learned counsel has further contended that the initial burden to prove the genuineness of a Mutation is upon it's beneficiary. Learned counsel has thus by referring to the evidence contended that the petitioners had failed to prove the existence of necessary ingredients of gift. It was contended that there is contradiction among the witnesses and a valid gift cannot be established on such evidence. Learned counsel added that the petitioner when appeared in the witness box and stated that Nazra and Muhammad Hussain were present at the time of gift. P.W.2 stated that at the time of gift Bahawal son of Sharif and Saleh son of Piran Ditta were present when gift was made. Learned counsel emphasized that "Patwar Halqa" of Ranmal Sharif is different and Revenue Record depicts that the impugned Mutation was attested at Chak Mitha i,e, outside Patwar Circle of Ranmal Sharif. Attention was drawn to the statement of Muhammad Inayat (P.W.1) who has admitted the possession at the time of gift was with Nazra son of Nawab, Muhammad Hussain son of Khushi and Yaseen son of Gama. Statement of Muhammad Hussain (P.W.2) was referred where the witness admitted that the plaintiffs possessed certain portion of disputed land.
Cases of "Noor Alam v. Mehdi and 2 others" (1990 CLC 321) and "Muhammad Ali and 25 others v.
Hassan Muhammad and 6 others" (PLD 1994 SC 245) were referred to contend that Mutation by itself does not confer title and party who relies on entries in Mutation is to prove such entries by leading necessary evidence. Learned counsel submitted further that donor was admittedly an illiterate person. The person relying on a transaction by an illiterate person has to prove that such transaction was valid. Case of "Taj Din v. Abdul Rehman" (PLD 1963 (W.P.) Karachi 825) was referred in support of this contention.
6. I have heard the learned counsel for the parties and perused the material available on the record.
7. The whole controversy in this case, is the validity of the gift executed by Allah Ditta in favor of Muhammad Inayat/petitioner No,l. It is significant to note that the respondents had assailed the validity of the gift being legal heirs of the donor, Allah Ditta. Thus the stance of the respondents cannot be permitted to be at odd and at variance with the claim of the donor. In the earlier round of litigation, as noted supra,Allah Ditta donor was defendant No,2. In the suit filed by Salhoon, predecessor-in-interest of some of the respondents. In that suit too validity of the gift was assailed and Allah Ditta, the donor filed written statement in that suit wherein he minced no words in admitting that he had validly. .Executed gift of the disputed land in favor of Muhammad Inayat Ali, petitioner. It would thus follow that the donor during his life time and in the judicial proceedings had testified to the correctness of the gift. This circumstance comprehensively outweighs and dwarfs legal intricacies and alleged contradictions in the evidence of the petitioners on which the impugned judgments rest. The aforesaid admission of the donor, knocks at the bottom of the respondents' case and denude them of any legal or moral justification to assail the validity of the impugned gift.
8. For the foregoing reasons, I am of the considered view that learned appellate Court committed illegality and material irregularity in reversing the findings of learned trial Court. As such, I accept the instant revision petition and set aside the impugned judgment of learned Court. Consequently, judgments and decrees of learned trial Court dismissing the suits of the respondents are restored.
No order as to costs.