' MIAN SAQIB NISAR, J.--The petitioner claims that Mst. Bashiri, the respondent/plaintiff, had gifted the suit property to him through A Mutation No,702, dated 25-2-1969; at that time, he was minor and therefore, the offer of gift by the donor was accepted by his father and the possession was also delivered to him in the same manner. Be that as it may, Mst. Bashiri, through the instant suit filed on 24-3-1985, challenged the Aforementioned mutation, on the ground of fraud and misrepresentation, etc; the petitioner contested the matter; issues were framed and the learned Civil Judge by returning its finding on issue NO.6, against the plaintiff and issue No,1, in favour of the petitioner, dismissed the suit, through the judgment and decree, dated 13-3-1989; Mst. Bashiri, challenged this judgment and decree, by an appeal, which has been accepted and the learned appellate court has held that there is no proof on the record, if a valid gift has been made in favour of the petitioner and that the possession under the said gift was delivered to him. Hence this revision.
2. Learned counsel for the petitioner argued that the findings of the learned appellate court, are based upon misreading and non-reading of the evidence. Mst. Bashiri, at the relevant time, was identified by two Lamberdars of the village; she throughout has been living with the father of the petitioner; she was issueless and on account of the reason that she was taken care by the petitioner's family, she gifted the property to him. It is also mentioned that the possession of the gifted property was delivered to the petitioner and Sarjeet, the tenant, was duly informed in this behalf and he started making the payment of the rent/lease money to the petitioner through his father, till he attained the age of majority.
3. I have heard learned counsel for the parties. The mutation by itself is not the conclusive proof of an oral gift, rather, is a manifestation of a transaction, which earlier has to be proved to have been concluded between the parties; Mst. Bashiri, having challenged the validity of the gift, it was incumbent upon the petitioner to have proved the factum of the gift in positive terms, such as the day, the date, the month, the time and the venue, whereby a disposing mind, a Pardanashin lady as contended by the petitioner's counsel, took a conscious decision to gift the property to the petitioner and made the offer, which was accepted by the petitioner, who at that time, according to his case, was minor, therefore, the ingredient of the "offer" of gift in this case, has not been established. Besides the above, the fundamental lack of the case is qua the delivery of the possession and by now, it is settled law that, in case of an oral gift by a Muhammedan, the delivery of possession is a sine qua non for the validity of the transaction. From the record, it is not proved, if the petitioner was put in the physical possession of the suit property; his case that Sarjeet, who was cultivating the land at the relevant time as tenant/lessee under the donor, attorned in his favour and started paying him the rent/lease money, is not proven; nowhere, it is shown or established that Mst.Ever approached Sarjeet, her lessee and on her assertion and command apprised the lessee that she has gifted the property to the petitioner and from that time, the said tenant attorned to the petitioner and has been paying him the lease money; as per record, the Khasra Girdawaris immediate after the alleged gift till number of years, does not contemplate the petitioner's possession either personal or through his tenant, thus keeping in view the entire evidence on the record, the superior court of fact, has taken a view different than the trial court, which is not shown to be either based upon any misapplication of law or misreading or non- reading of the evidence, therefore, such judgment and decree cannot be interfered in the revisional jurisdiction.
' As regards the arguments that independent of the gift, the petitioner is the sole heir of Mst. Bashiri and thus entitled to inherit her property as such, suffice it to say that this is not an issue before this court for the determination. With the above; this petition has no merits and the same is hereby dismissed.