MAULVI ANWARUL HAQ, J. --- This judgment shall decided C.R. No. 431/2002 and C.R. No. 432/2002 as common questions are involved.
2. Admittedly, the respondents in these cases are the sisters of the petitioner. The suit land devolved upon the parties upon death of their father Raja Khan, vide Mutation No. 1660 arrested on 31.8.1981. Gulnaz Begum on 6.12.1996 and the respondents in C.R. No. 431/2002 on 19.6.1997 filed suits against their brother Arshad Khan petitioner stating that he has fraudulently deprived them of the land inherited by them from their father and got Mutation No. 1681 attested on 22.9.1981 when they had never gifted away the land to the petitioner and had never appeared before the Revenue Officer. The petitioner in both the suits positively asserted that his sisters transferred the land to him out of their own free will and appeared before the Tehsildar and got the mutation attested. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed both the suits vide separate judgments and decrees on 28.7.2001. First appeals filed by the petitioner were dismissed by the learned A.D.J., Attock, by separate judgments and decrees on 16.5.2002.
3. Learned counsel for the petitioner contends that since the mutation had been incorporated in the Revenue Records, the same enjoyed presumption of correctness and the sisters of his client failed to rebut the same. The relies or the case of Arbab Jamshed Ahmed and another v. Ghazan Khan and others (1995 CLC 695). Learned course for the respondents, on the other hand, contends that neither the factum of gift nor the attestation of a valid mutation at the instance of the respondents was proved.
4. I have gone through the records. I have already recorded above for respective pleadings of the parties. It was the petitioner who pleaded a valid gift and the fact that the sisters appeared before the Tehsildar and gave their property to him. Now the only evidence available on record in both the cases is of Afridi Khan DW.1. In his cross-examination this witness has admitted without demur that the daughters of Raja Khan (i.e. The respondents) observed pardah and that it was Arshed Khan petitioner who had pointed them out otherwise he did not identify the ladies who appeared before the Tehsildar. So far as the factum of gift itself is concerned, there is not even an iota of evidence on record while the ladies have appeared in the witness-box in both the cases (except Begum Jan respondent No. 2 in C.R. No. 431-D/2002) to state that they never gifted their property to their brother and never appeared before the Tehsildar. This, therefore, is a case of no evidence.
5. Now coming to the said contentions of the learned counsel for the petitioner, it is true that in some judgments including the one cited by the learned counsel, the view was expressed that a mutation which is incorporated in the Reverse Record enjoys presumption of correctness for the fact that the record in which it is so incorporated enjoys statutory presumption of correctness.
However, the Hon'ble Supreme Court of Pakistan in the case of Abdul Majeed and 6 others v.
Muhammad Subhan and 2 others (1999 SCM R 1245) has held to the contrary. The dictum laid down is that notwithstanding the incorporation of the mutation in the Revenue Records, in case of dispute the burden is upon the beneficiary to prove the transaction and a valid mutation. Nothing, therefore, turns on the said contention. I may further refer here to the case of Ghulam A.I and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) which is squarely applicable to the facts of this case. Their Lordships have described the plea being raised by the petitioner to the immoral so as to render the transaction void in terms of Section 23 of the Contract Act, 1872.
6. I, however, do find that Mst. Begum Jan got her statement record before the learned ADJ., Attock, on 13.5.2002 that she would riot be opposing the claim of her brother and that she had transferred her share in favour of the petitioner. To my mind in view of the said concession made by the said lady, the learned A.D.J. Ought to have made the adjustment in his impugned judgment to her extent. The civil revisions filed by the petitioner are dismissed. However, the suit to the extent of said Begum Jan respondent No. 2 in C.R. No. 431/2002 shall stand dismissed in the light of her statement recorded by the learned A.D.J., Attock, on 13.5.2002. No orders as to costs. .