' S. ALI HASSAN RIZVI, J.---The dispute relates to land measuring 78-Kanals and 04-Marlas falling in Khewat Nos.50/54, Khatuni Nos.126- to 128, and Khewat Nos.51/52, Khatuni No,129, situate in Mauza Kot Bhaini Das, Tehsil and District Nankana Sahib. It was owned by Mst. Bakhshi daughter of Farida.
Bagh Ali claiming himself to be the brother of Muhammad Boota and Abdul Aziz, defendants/respondents from mother side, had filed a suit for declaration and permanent injunction on 29-6-1987, alleging that he and the aforesaid defendants/respondents being thus brothers were entitled to inherit the said land in equal shares (1/3rd); that the mutation of alleged
(oral) Hiba No,177 recorded and sanctioned on 23-2-1987, was a fake and forged transaction; that Mst. Bakhshi had died at the age of 100; that she was confined to bed and suffering from Marz-ul- Maut; that she being thus incapacitated, could not make intelligent decision as to her land and that the defendants/respondents had bolstered up the impugned mutation through fabricated proceedings in connivance with the Revenue officials.
2. During the pendency of the suit, Bagh Ali (plaintiff) having died, the present revision-petitioners Abdul Majeed, Muhammad Siddique, Bashiran Bibi and Sairan Bibi being his legal heirs, were substituted and amended plaint was brought on record on 1-3-2001.
3. The defendants/respondents contested the suit while filing their written statement on 17-11-2006.
They, pleading absence of cause of action, incompetency of the suit, wrong valuation of the, suit and veraciousness of the claim, as preliminary objections, averred on facts that Mst. Bakhshi was enjoying good health that she never suffered from Marz-ul-Maut; that she had of her free consent gifted the land in question in their favour and that the Revenue officials had faithfully recorded Ruppt Roznamcha Waqiatai No,235 on 7-2-1987, which was followed by Mutation No,177, dated 23- 2-1987. While making reply to para.4 of the plaint, it was averred that Bagh Ali, the original plaintiff (predecessor-in-interest of the present revision-petitioner), was not their brother. It was further stated that father of Bagh Ali was different.
4. The learned Civil Judge, Nankana Sahib, put the parties on trial on the following Issues:-- "(1) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so what is the correct valuation?
(4) Whether the issue is false and vexatious? OPD
(5) Whether the suit property has been incorrectly described? If so, its effect? OPD
(6) Whether the plaintiff is owner in possession to the extent of 1/3 in the suit-land and the gift mutation in favour of the defendants sanctioned on 23-2-1987 is illegal, against the facts, forged, fictitious, void, based on fraud and, therefore, is ineffective against the rights of the plaintiff? OPP
(7) Relief".
5. In the course of trial, Muhammad Siddique son of Bagh Ali (one of the petitioners), appeared as P.W.1. On their behalf, following documents were produced:--
(1) Exh.P1, death entry relating to Bagh Ali son of Rehmat on 6-6-1996 showing that he had died at the age of 75.
(2) Exh.P2, copy of Register Haqdaran Zamin for 1982-83, showing ownership of Mst. Bakhshi.
(3) Exh.P3, copy of Mutation No,177, dated 23-2-1987 relating to alleged Hiba in favour of defendants/respondents.
(4) Exh.P4, copy of Mutation No,293 recorded on the decree, dated 5-1-1991 in favour of Bagh Ali (deceased).
(5) Exh.P5, copy of mutation dated 20-5-1993 in favour of Abdul Majeed.
(6) Exh.P6, death entry relating to Mst. Bakhshi showing that she had died on 10-4-1987 at the age of hundred.
(7) Exh.P7 (P-1) death entry, dated: 20-6-1996 relating to Bagh Ali showing that he had died on 6-6- 996 at the age of 75.
(8) Exh.P8, copy of Khasra Girdawari showing tilling possession of Muhammad Siddique and Abdul Majeed, sons of Bagh Ali.
6. On the other hand, the defendants/respondents produced the following witnesses/documentary evidence:--
(1) D.W.1., Allah Lok, Inspector Moharrar, who produced record of Mutation No,177, dated 23-2-1987.
(2) D.W.2., Javaid Ahmad Niazi , Tehsildar, who had sanctioned the disputed mutation.
(3) D.W.3. Barkat Ali Patwari, who had recorded Ruppt No,235, dated 7-2-1987.
(4) D.W.4. Yousaf Ali Patwari, who had recorded the disputed mutation on 23-2-1987 and had produced the documents before the Tehsildar Javaid Ahmad Niazi.
(5) D.W.S. Abdul Aziz son of Allah Bakhsh, the contesting defendant/respondent.
(6) D.W.6. Fazal Din son of Maula Bakhsh (Chacha of Abdul Aziz defendant).
(7) D.W.7. Aziz son of Muhammad Shafi, identifying and attesting witness to the mutation in question.
(8) Exh.D.1 copy of Ruppt No,235, dated 7-2-1987.
(9) Exh.D.2 copy of Mutation No, 177, dated 23-2-1987.
(10) Exh.D.3 copy of Register Haqdaran Zamin for the year, 1994-95.
(11) Exh.D.4 copy of Khasra Girdawari from 1995 to 1999.
(12) Exh.D.5 copy of Khasra Girdawari for the years, 1999 to 2000.
(13) Exh.D.6 copy of Khasra Girdawari for the years, 1999 to 2000.
7. During the pendency of the suit, Muhammad Boota (Defendant No,1), appeared before the learned trial Court on 10-10-1989 and made a statement confessing judgment against him. He stated that he had reconciled with himself; that he would accept the right of Bagh Ali (the deceased father of the present revision-petitioners); that he would not contest the suit and that the suit be decreed in the light of his statement to his extent. The learned trial Court then accepting his statement, partly decreed the suit to his extent the same day. Boota perhaps on reflection felt switched over and moved an application under section 12(2), C.P.C., but failed all the same. There is no dispute about it. The contest thereafter remained between the legal heirs of Bagh Ali (deceased) and Abdul Aziz (defendant/respondent No,2).
8. After concluding the trial and hearing arguments of the parties, the learned trial Judge held ISSUE No,6 against the plaintiffs/petitioners and in favour of the defendants/respondents. He also found the other Issues against the plaintiffs petitioners and proceeded to dismiss the suit vide judgment and decree, dated 24-1-2002.
9. The revision-petitioners challenged the judgment and decree, dated 24-1-2002 in appeal, which, too, was dismissed by the learned Additional District Judge, Nankana Sahib vide judgment, dated 19-10-2006. Hence this revision.
10. I have heard learned counsel for the parties and perused the record.
11. Learned counsel for the petitioners contended that both the learned Courts below misdirected themselves while holding that genuineness of the oral sale effected through the mutation in question was to be proved by the plaintiffs/petitioners; that the admitted age of Mst. Bakhshi at the time of effecting the alleged mutation, was more than 100 as per narrations made in paras 3 and 4 of the pleadings of the parties; that the fact that she had died just after 1-1/2 months of the impugned Mutation No,177, dated 23-2-1987, was enough proof of her incapacity to make any intelligent decision; that she was suffering from Marz-ul-Maut and the mutation in question was the result of fraud and misrepresentation; that the law laid down by the superior Courts and the provisions of Muhammadan Law and the Transfer of Property Act, were not brought into consideration by two Courts below; that Muhammad Boota one of the two defendants/respondents/donees having made a statement confessing judgment against him and the same having been accepted by the learned trial Court without any reservation, while passing a partial decree in favour of the petitioners on 10-10-1989, the suit of the plaintiffs/petitioners could not have been dismissed. It was further argued that the learned trial Court was totally wrong in holding that aforesaid Muhammad Boota should have been produced by the petitioners/plaintiffs; that legal presumption having been raised in favour of the plaintiffs/petitioners as to their succession to the land left by Mst. Bakhshi, exceptionally strong evidence was required to dislodge the same; that the learned Courts below failed to consider that onus in civil matters and particularly in matters where village uncouth females had allegedly parted with their landed property, would never be permanently fixed and rather would be constantly shifting; that the alleged proceedings conducted by the Revenue officials, were highly dubious and were at all events, violative of the provisions of section 42 of the Land Revenue Act, 1967 and that at all costs, the judgments of the two Courts below were the result of non-reading and misreading of the evidence and misconception of various provisions of law relating to gifts. While criticizing the judgment of the learned appellate Court, it was argued that the ratiocination adopted was totally uninhering, perfunctory and opposed to the provisions relating to recording judgments.
12. On the other hand, learned counsel for the contesting (Abdul Aziz) controverted the above arguments and contended that he having produced all possible evidence, the suit of the plaintiffs/petitioners was rightly dismissed. It was argued that the conceding statement of Muhammad Boota, one of the two donees did not damage his case. Referring to the statements of revenue officials, it was submitted that the proceedings conducted by them in official capacity would claim presumption of truth. It was lastly argued that concurrent findings of fact arrived at by two Courts below could not, as of rule, be disturbed in the exercise of revisional jurisdiction. While supporting the judgments of the two Courts below, he inter alia relied on PLD 1970 SC 28, 1980 CLC 110, PLD 1982 SC 457, 1991 MLD 889, 1991 SCMR 2300, 1992 MLD 2127, PLD 1995 SC (AJ&K) 4), 1997 SCMR 154, 1997 MLD 307 3236, 2005 MLD 2061, 2005 MLD 283 and 2006 MLD 248. It was argued that the contentions now being raised on behalf of the revision petitioners were beyond the scope of pleadings and that Mst. Bakhshi having not challenged the mutation during her life time, there was no warrant for tinkering with the judgments and decrees rendered by the two Courts below.
13. I have examined the above contentions and the case-law referred to on behalf of both the parties.
14. The claim of the revision-petitioners in the plaint was that their father Bagh Ali (deceased) was brother of the defendants Boota and Abdul Aziz from the mother side and the alleged Mutation No, 177, dated 23-2-1987 was a fraudulent and spurious transaction arrived at on account of collusion of the defendants with the Revenue officials. In the written statement filed by the defendants/respondents on 17-11-2006, they denied if Bagh Ali was their real brother. In para.4 of the written statement, the reason stated was that fathers of the parties were different. It may be noted that the dispute related to the land owned by Mst. Bakhshi. There was no denying the fact that Bagh Ali (the predecessor- in-interest of the revision-petitioners) and defendants/respondents Muhammad Boota and Abdul Aziz were sons of same Mst. Bakhshi was firstly wife of Rehmat, father of Bagh Ali and then she had married Allah Bakhsh, who was father of defendants Muhammad Boota and Abdul Aziz. During evidence and in the course of arguments, it was also not denied that Mst. Bakhshi had died at the age of 100 Copy of death entry Exh.P.6 relating to Mst. Bakhshi showed her age as 100 years on 10-4-1987, when she had died. It may be noted that in para. 4 of the plaint, it was specifically noted by Bagh Ali or for that matter his successor-in-interest, that at the time of her death, Mst. Bakhshi was more than 100; that she was also suffering from Marz-ul-Maut and that thus she could not make intelligent decision. Mst.
Bakhshi at the time of her death was admittedly living with defendants Muhammad Boota and Abdul Aziz. A very strong presumption would, therefore, arise that the death of Mst. Bakhshi was reported to the concerned Union council by them vide Exh.P/6 showing her age as 100 years. The defendants/ respondents in their written statement did not deny the age of Mst. Bakhshi at the time of her death. Presumption was rightly claimed to go against the defendants/respondents in terms of Order VIII rules 4 and 5, C.P.C. Abdul Aziz the contesting defendant appearing as D.W.5 claimed brazen-facedly in reply to first question put to him during cross examination that the age of his mother Mst. Bakhshi at the time of her death, was 85 years. This version is far removed from truth. The death entry Exh.P7, relating to Bagh Ali, the eldest son of Mst. Bakhshi showed that he had died on 6-6-1996 at the age of 75. Abdul Aziz during cross-examination had to admit that Bagh Ali was also his brother. He further admitted that he was an educated person. His version during cross-examination that Mst. Bakhshi had died 3-4 months after the attestation of mutation is also falsified by the documentary evidence, ranking higher than any other type of evidence. He stated during cross-examination that Muhammad Iqbal, an attesting witness to the mutation was verily present outside the Court on 27-9-2001, when his statement was being recorded, but he was not produced. He also admitted that there were criminal cases pending between Bagh Ali (deceased) or for that matter, his successors-in-interest, and himself (Abdul Aziz). It was indeed the version of the revision-petitioners also. There was, therefore, reason for the defendants/respondents to have bolstered up the impugned mutation so as to deprive Bagh Ali (deceased) or his successors- ininterest from the landed property of Mst. Bakhshi. Fazal Din son of Maula Baldish D.W.6., who was admittedly paternal uncle of defendants/ respondents when put a specific question that Mst.
Bakhshi had died at the age of 100, cleverly parried and stated that he had no knowledge. His statement lacked luster of impartiality and was not wroth reliance like that of P.W.S.
15. Adverting to the question if Mutation No,177, dated 23-2-1987 was a genuine transaction, no doubt is lurking in my mind that Mst. Bakhshi had died at the age of 100. Besides being too old, she was an illiterate and a village rustic woman, Gujjar by caste. According to D.W.4 Yousaf Ali Patwari, who had entered the disputed mutation, Mst. Bakhshi daughter of Farida was only accompanied with Muhammad Boota and Abdul Aziz defendants/respondents and none else. During cross- examination, he stated that at the time of recording Ruppt No,235, dated 7-2-1987, Mst. Bakhshi was alone and not accompanied by any person. Ruppt No,235 was recorded by D.W.3 Barkat Ali patwari, who in his examination-in-chief stated that he had brought and produced the Rozenamcha but during cross-examination, he had to admit that he had not brought the Rozenamcha and volunteered that the same was not summoned. Such a volte-face is bound to render his statement as untrustworthy. He was rightly suggested that he had not brought the Rozenamcha because there was no entry as sought to be proved by the defendants. Yousaf Ali Patwari further stated during cross-examination that he did not know as to change of possession; that on the date of entering mutation, the defendants/respondents were with a woman and that it were they, who had told him that the woman accompanying them was their mother. He did not know Mst. Bakhshi personally. On reading his statement observantly I hold that he had scant regard for truth.
16. D.W.2. Javed Ahmad Niazi, Tehsildar was very important witness. He also stated that he did not know Mst. Bakhshi personally. According to him, where Hiba was of a Hissa in joint khata, possession was to be transferred orally and not physically. He claimed that Mst. Bakhshi had stated before him that she had gifted her land in favour of Muhammad Boota and Abdul Aziz. D.W.7 another Aziz son of Muhammad Shafi was the only attesting witness produced by the defendants/respondents. During cross-examination, he admitted that nothing was said about the transaction of Hiba by the parties within his view and presence. He further stated that Patwari had gone to the village, where he had put his thumb impressions at his instance. He did not give date and time, when the impugned. Transaction of oral Hiba was recorded. His statement too was of no help to the respondents in the context of proving the genuineness of the Hiba in dispute.
17. A close reading of the evidence shows that the provisions of section 42 of the Land Revenue Act, 1967 were not observed, making the alleged Hiba rather more dubious. The Patwari had neither sent a copy of the report to the concerned Council nor had he displayed the same as notice to the general public as required by the provisions of sections 42(1)(c) and 42(4) of the Act ibid, of which tenor was mandatory.
18. The parties were throughout aware of the controversy going on A between them. It is by now a settled law that when entire evidence is recorded, burden of proof in civil matters would lose its importance vide PLD 1980 Lah. 145, 1992 CLC 1263 and 2006 SCMR 586. In other words, burden of proof would not remain permanently fixed. On the other hand, it would be constantly shifting.
19. No person is bound to sue for setting aside a document just because it is raising a presumption against his rights vide 1999 SCMR 1245. When a Muhammadan dies, his successors automatically succeed to the estate and no seal of revenue authorities is required. At the risk of repetition, it may be noted that during the pendency of the suit, one of the defendants, namely, Muhammad Boota had made a statement confessing judgment against him and thereupon the suit was partly decreed in favour of Bagh Ali on 10-10-1989, as earlier mentioned in para.7 of this judgment.
Perhaps, his mind pricked and he came down to terms reverting to truth. He was real brother of the contesting respondent Abdul Aziz, both from mother and father side. His statement carried much weight and could not be ignored.
20. After reading the evidence on record with care, I am not prepared to accept that Mst. Bakhshi at the age of 100, while confining to bed, had the mental capacity to make intelligent decision as to her landed property. Bagh Ali was step-brother of the defendants/ respondents Muhammad Boota and Abdul Aziz from the father side. I have already observed that the defendants/respondents had a motive to trump up a transaction by which Bagh Ali (deceased) or his successorsin-interest, could be deprived from the landed property of Mst. Bakhshi. I am not persuaded to hold that Mst.
Bakhshi at the age of 100 was not under the undue influence of the defendants/respondents, who were pitted against Bagh Ali (deceased). The evidence did not suggest any reason for Mst. Bakhshi, to have deprived her eldest son Bagh Ali from her landed property. She at the relevant time was admittedly living under the care of defendants/respondents Muhammad Boota and Abdul Aziz. She was totally dependent on them and was only a tutelage in their hands. The impugned mutation was shown to have been recorded and sanctioned on 23-2-1987 and the poor woman had died on 10-4-1987 i,e, just after 45 days. In the circumstances of the case, I hold that on 23-2-1987 death of Mst. Bakhshi was more probable than a chance to live. She with affected mental capacity, physical infirmity and old age could not constitute a valid gift as an independent person. I am strongly disposed to hold that on 23-2-1987 she was suffering from Marz-ul-Maut and was not a person competent with free consent to make an intelligent decision. The so called transaction of impugned mutation in my view was at all events hit by the vice of mischief and the law laid down in PLD 1947 PC 73, PLD 1964 SC 173, 1981 CLC 962, PLD 1990 SC 1, 1992 SCMR 553 and 1999 SCMR 1049.
Every case depends on its own peculiar facts and no hard and fast rules can always be laid down.
The citations referred to by learned counsel for the contesting respondent were not apt similes.
21. The judgment and decree, dated 24-1-2002 passed by the learned trial Judge were the outcome of misreading and non-reading of material evidence and in complete departure of provisions of Articles 135/ 138/139 of Muhammadan Law by Dr.M.A. Manan, sections 122 and 123 of Transfer of Property Act, 1882 and the law laid down by the superior courts in the context of gifts by illiterate, infirm, old and rustic females. His observation that Muhammad' Boota defendant/respondent No,1 having not been produced, the plaintiffs/petitioners had cut their size, was totally misconceived and unwarranted. It passes my comprehension how non-production of Boota by the plaintiffs would scathe their case. His statement, as mentioned earlier, was verily on record of the Court and the same should have been given due weight.
22. The statement of Muhammad Siddique P.W.1 was forthright and quite revealing. It was fully supported by the documentary evidence Exh.P1 to P8 and the evidence of the other side on all material questions involved in this case. The evidence of the plaintiffs/petitioners when put in juxtaposition, clearly outweighed the evidence led by the contesting defendant/respondent. The statement of Muhammad Boota, as referred to above, reinforced the claim of the petitioners. The learned trial Court accepting his statement as correct on 10-10-1989, had partly decreed the suit in terms of Order XII rule 6, C.P.C. The statement of Muhammad Boota indeed had shaken, uptil the breaking point, the rickety angles tried to be set up by Abdul Aziz (P.W.1), the only contestant remaining in the field. Non-production of Boota as a witness by the petitioners could not be looked with a pinch of salt against them anywise.
23. Likewise, the approach of the learned Appellate Judge while dismissing the appeal by judgment, dated 19-10-2006, was slipshod. His observation that the donor Mst. Bakhshi had not challenged the impugned mutation, was totally in vacuum and in disregard of the fact that she had died on 10-4-1987 at the age of 100 i,e, just after 45 days of the recording/sanctioning of the mutation in question on 23-2-1987. The observation that she had the knowledge of so-called mutation was highly presumptive. There is no evidence worth reliance to hold that she had the mental and physical capacity to agitate against the so-called Hiba. The learned Appellate Judge had also misdirected himself while holding that the entire burden of proof lay on the plaintiffs/petitioners to prove the disputed gift. The original plaintiff Bagh All was living separately with his family members and admittedly there were criminal cases between him and the defendants/respondents as suggested to Muhammad Siddique P.W. I. On behalf of defendants themselves during his cross-examination. It is nobody's case that any of the plaintiffs/petitioners was posted with the knowledge of the impugned Hiba. How could Bagh Ali plaintiff or I hat matter his successors-in-interest then be expected to prove the negative? Bagh'Ali could only file a suit with allegations of fact. The particulars mentioned in the plaint were quite revealing towards a surreptitious and fraudulent deal. He being the elder son of Mst. Bakhshi had succeeded on her death immediately. Legal presumption was in his favour and it was for the donees (defendants) to have proved the genuineness of the Hiba claimed by them to the exclusion of Bagh Ali. No oblique meaning could be attached to the evidence of the plaintiffs/ petitioners.
24. The learned appellate Judge, to say the least, dismissed the appeal on conjectures, without adverting to the pleadings, evidence on record, the provisions of Order XX of the C.P.C., pertaining to recording judgments, the attending circumstances and the guidelines given by the superior Courts from time to time in relation to cases where transactions were allegedly made by old, illiterate, infirm and rustic females. He did not bother to advert to the relevant provisions of Muhammadan Law, the Transfer of Property Act or the case-law on the subject-matter. The judgment handed down by him being sketchy, was no judgment in the eye of law.
25. As a sequel of the above, I do not feel inhibited from interfering with the judgments and decrees concurrently passed by the learned two Courts below. I, therefore, de-clare that Mutation No,177, dated 23-2-1987 was without any sound basis both on facts and law and there was no legal sanction behind it. The same was thus inoperative against the legal 1/3rd right of the plaintiffs/revision-petitioners. The findings on ISSUE No,6 are accordingly reversed and the issue is decided in favour of plaintiffs/revision-petitioners and against the defendants/respondents.
26. Issues Nos. 1 and 4 being dependent on the fate of Issue No,6, the findings qua them are also reversed.
27. As far as Issue No,2 is concerned, there was nothing wrong with the form of the suit. Even otherwise, no suit is defeated for its bad form vide Order I rule 9, C.P.C.
28. Issues Nos. 3 and 5 were not argued. Those were indeed inconsequential.
29. I, therefore, while reversing the findings of both the Courts below on all the Issues, accept this Revision Petition and set aside the concurrent judgments and decrees, dated 24-1-2002 and 19-10- 2006 of the learned two Courts below dismissing the suit. Consequently the suit of the plaintiffs/revision-petitioners is decreed with costs throughout against the defendants/respondents Muhammad Boota and Abdul Aziz to the extent of their (petitioners) 1/3rd share out of the land measuring 78-kanals and 04-marlas falling in Khewat Nos.50/54, Khatuni Nos.126 to 128, and Khewat Nos. 51/52, Khatuni No,129, situate in Mauza Kot Bhaini Das, Tehsil and District Nankana Sahib, left by Mst. Bakhshi (decased). A decree to follow this judgment shall be drawn accordingly.
' For future guidance, a copy of this judgment is directed to be sent to the learned trial Judge as also the learned Appellate Judge, whereever they are posted, through the learned District and Sessions 'Judge concerned.