1. Council had to display the same as notice to the General Public.ORAL HIBA - (Appreciation of evidence)(a) Civil Procedure Code (V of 1908)--S. 115~Specific Relief Act, 1877, S. 42--Punjab Land Revenue Act, 1967, S. 42-Transfer of Property Act, 1882, Ss. 122, 123-Muhammadan Law by Dr. M.A.
2. Manan; Arts. 136/138/139-Transaction of an oral Hibia/Mutation by an infirm/ofd female-Issues- Courts below concurrently dismissed suit for declaration filed by predecessor-in-interest of petitioners claiming hereditary rights who took an exception to the alleged , oral Hiba/Mutation qua land in dispute-Civil revision petition in High Court-Appreciation of evidence law-Validity-It could not be accepted that deceased owner/mother of parties at age of 100, while confining to bed had mental capacity to make intelligent decision as to her landed property-Plaintiff/Predecessor-in- interest of petitioner was step-brother of the defendants/respondents from father side-Criminal cases were .Pending inter se-Defendants/respondents had a motive to trump up a transaction by which said plaintiff or his successors-in-interest could be deprived from landed property of deceased owner-Evidence did not suggest any reason for deceased owner to have deprived her eldest son from her landed property-Deceased woman owner at relevant time was living .Under care of defendants/respondents, therefore, she was totally dependant on them and was only a tutelage in their hand- Statement of conceding defendant carried much weight and could not be ignored-Patwari had neither sent a copy of report Jo the concerned council nor had he displayed same as notice to general public as required by said mandatory provisions of law-Only-attesting witness/DW did not give' date and time when impugned transaction of oral Hiba was recorded- Impugned mutation was shown to have been recorded and sanctioned on 23.2.1987 and the alleged donee-woman died on 10.4.1987-In circumstances of case,it was held that on 23.2.1987 death of deceased woman was more probabld than a chance to live-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-- -Non-production of conceding dependent as a witness by petitioners could not be looked with a pinch of salt against them any wise-Impugned judgment/decree of Trial Court were outcome of misreading and non-reading of evidence and in complete departure of bw laid down by superior Courts in context of gifts by illiterate, infirm, old and rustic females-Appellate Court below had also misdirected himself while holding that entire burden Of proof lay on petition ers/p I a I ntiff to prove disputed gift-Impugned judgments/decree set aside/suit decreed/civil.
3. Revision, petition accepted.(Paras 20,21,22,23,29)Ref. PLD 1947 PC 73; PLD 1964 SC 173; 1981 CLC 962; ~ NLR 1990 SCJ 2007; NLR 1992 SCJ 225; 1995 SCMR 1049.May also be seen: 2005 PSC SC (Pak.) 1812; KLR 1986 Rev. C. 39; Law Notes 2002 Kar. 996; NLR 2002 Civil Lah. 371. -(b) Precedents--Rule of application-Stated-Every case depends on its own peculiar facts and no hard and fast rules can always be laid down.(Para 20)(c) Civil Procedure Code (V of 1908)--S. 115-Specific Relief Act, 1877, S. 42-Declaratory suit- --Impugned transaction of oral gift-Onus to prove-Held: Appellate Court had misdirected itself while holding the entire burden of proof lay on plaintiffs/petitioners to prove disputed gift-It was nobody's case that any of plaintiffs/petitioners i^ps posted with knowledge of impugned Hiba--How could plaintiff or for that nrratter his successors-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.
4. During the pendency of the suit, Bagh AM (plaintiff) having died, the present revision petitioners Abdul Majeed, Muhammad Siddique, Bashirah Bibi and Sairan Bibi being his legal heirs, were substituted and amended plaint was brought orv 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 vexatiousness 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, Waqiati 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 petitioners), 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:- M^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? OPO2009 Muhammad Siddique etc. V. Muhammad Boota C.C. 151(S. Ali Hassan Rizvi. J.)(4) Whether the suit is false and vexatious? OPD(5) Whether the suit property has been incorrectly described? If so, its effect?; OPO(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 sonof Bagh Ali (one of the petitioners) appeared as PW-1. On their behalf, following documents were produced:---(T) Ex'Pi .
5. Death entry relating to Bagh Ali son of Rehmat on 6.6.1996 showing that he had died ' at the age of 75.(2) Ex. P2, copy of Register Haqdaran Zamin for 1982-83, showing ownership of Mst. Bakhshi.(3)
6. Ex.P3, copy of Mutation No. 177, dated 23.2.1987 relating to alleged Hiba in favour of defendants/respondents..(4) Ex.P4, copy of Mutation No. 293 recorded onthe decree dated 5.1.1991 in favour of Bagh Ali (deceased).(5) Ex.P5, copy of Mutation dated 20.5.1993 in favour of Abdul Majeed.(6) Ex.P6, death entry relating to Mst. Bakhshi showing that she had died on 10.4.1987 at the age of hundred.(7) Ex.P7 (P-1) death entry dated 20.6.1996 relating to Bagh Ali showing that he had died on 6.6.1996 at the age of 75.q12. 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 rightl^ dismissed. . It was argued that the conceding statement of Muhammad Boota, one of the two donees did not damage his case.
7. Referring to the statements of revenue officials, it was submitted that the prgceedings 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 revisipnal jurisdiction. While supporting the Judgments of the two Courts bciow, he inter alia relied on PLD 1970 SC 28, 1980 CLC 110, PLD 1982 SC 457, 1991 M LD 889, 1991 SCM R 2300, 1992 M LD 2127, PLD 1995 SC (AJ&K) 4, 1997 SCMR 154, 1997 MLD 307 - 3236, 2005 MLD 2061, 2005 M LD 283 and 2006 M LD
248. It was also 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 on17.11.2006, 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 (and owned by Mst. Bakhshi. There was no denying the fact that Bagh Ali (the predecessor-in-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.
8. On reading his statement observantly I hold that he had scant regard for truth.16. DW-2 Javed Ahmad Niazi, Tehsildar was veryimportant 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. DW-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 between them.. It is by now. a settled law that when entire evidence is recorded, burden df proof in civil matters would lose its importance vfde PLD 1980 LHR 145, 1992 CLC 1263 and 2006 SCM R 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 SCM R 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 AN on 10.10.1989, as earlier mentioned in para-7 of this judgment.
9. Perhaps, his mind pricked and he came down to terms reverting to truth. He was real brother of the contesting respondent Abdui 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 hertanded 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 successors-in-interest, could be deprived from the landed property of Mst.
10. 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 All 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 hand. 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 gld agesuit 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 (PW-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^isregard 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 Ali. Was living separately with his family members and admittedly there were criminal cases between him and the defendants/respondents as suggested to Muhammad Siddique PW-1 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 for that 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 CPC, 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, declare that Mutation No. 177, dated 23.2.1987 was without any sound basis both oh facts and law and there , was no legal sanction behind it. The same was thus inoperative against the legal 1/3rd right of theplaintiffs/revision-petitioners. The findings on ISSUE NO. 6 are accordingly reversed and the issue is decided in favour of plaintiffs/revision-petitioners and against thedefendants/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 this 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 & 5 were not argued. Thosewere indeed inconsequential. -29.
11. 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 19.10.2005 of the learned two Courts below dismissing the suit. Consequently, the suit Of the2009 Rashid Mehmood V. Mst. Kashida Begum C.C. 163' * (S. Ali Hussan Rizvi, J.)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 4 Marlas .Falling in Khewat Nos. 50/54, Khatauni Nos. 126 to 128, and Khewat Nos. 51/52, Khatauni No. 129, situate in Mauza Kot Bhaini Das, Tehsi! And District Nankana Sahib, left by Mst.
12. Bakhshi (deceased). 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, wherever they are posted, through the learned District and Sessions Judge concerned.Civil revision .