My this judgment is directed to dispose of the civil revision petition lodged by Hussain Bakhsh and others petitioners (hereinafter called the defendants) against the impugned judgment and decree dated 15.01.2008 passed by Additional District Judge-VI, D.I. Khan whereby he accepted the appeal of Mst. Bashiran respondent (hereinafter called the plaintiff) and set-aside the judgment and decree dated 18.12.2006 passed by the trial Court whereby the suit of the plaintiff was dismissed.
2. The brief facts relevant for the instant lis are to the effect that Muhammad Bakhsh, father of the plaintiff and defendants was the owner in possession of suit land comprised in Khata Nos,103 to 112 situated in Mouza Girsar, Tehsil and District D.I.Khan. At the time of death of her father, the plaintiff was of the age of one and a half yee.r. The heritage of Muhammad Bakhsh was devolved upon Allah Bakhsh and Hussain Bakhsh (sons), Mst. Bashiran (daughter) and Mst. Mudam and Mst.
Bakhto (widows) through Mutation No, 571 dated 21.3.1943.
3. Allah Bakhsh. son of Muhammad Bakhsh (brother of plaintiff) died issueless and his property was mutated in the name of Hussain Bakhsh and other legal heirs including the plaintiff Mst. Bashiran through Mutation No, 537, 571 and 856 according to their shari shares in the year 1952 and since then the plaintiff was being paid the yields of the suit land as joint co-sharer till 1997 by defendant and other co-sharers but later on refused to pay the produce.
4. After inquiry, plaintiff came to know that Defendant No, 1 (brother of the plaintiff) has fraudulently mutated and attested the land Measuring 237 Kanals 13 Marlas in his name through Mutation No, 1053 dated 17.9.1958 with connivance and manipulation of revenue officials taking undue advantage from minor age of the plaintiff.
5. The plaintiff alleged that she neither appeared before the revenue officials, nor thumb impressed the mutation nor she gave her consent, therefore, the. Mutation No, 1053 attested on 17.9.1958 is false, bogus and fraudulent and as such ineffective upon her rights and is liable to be dismissed and correction in this regard be made in the revenue record about the disputed property mentioned above.
6. After submission of written statement by Defendant 'No, 1, issues were framed, evidence of the parties was recorded, arguments of counsel for the parties were heard by the trial Court and consequently, the suit of the plaintiff was dismissed vide judgment and decree dated 18.12.2006.
7. Dissatisfied from the impugned judgment of the trial Court, it was assailed in the appellate Court and vide judgment and decree dated 15.01.2008, learned Additional District Judge-IV, D.I.Khan accepted the appeal, set-aside the judgment and decree of the trial Court referred to above which gave rise to the instant civil revision petition.
8. Instead of addressing their oral arguments, the counsel for the parties wished and prepared to submit their written arguments and accordingly they did so and the same are placed on the Court file to be considered as part and parcel of the concerned file.
9. The written arguments furnished by counsel for the parties supported by the Photostat copies of plethora of pronouncements and dictums of the superior Courts were meticulously perused and assessed in the light of evidence recorded and other material available on record.
10.Apparently, as evident from the evidence recorded in the trial Court, the plaintiff was the owner in the legacy of her late' father Muhammad Bakhsh, her brother Allah Bakhsh and mother Mst.
Bakhto, however, she has alleged that her real brother Hussain Bakhsh has transferred the disputed landed property measuring 237 Kanals 12 Marlas situated in the revenue circle of "Girsar" or Girsal, Tehsil Paharpur fraudulently in his name through gift mutation (Tamleek) No, 1053 attested on 17.9.1958.
11.The pivotal issue is No, 7 which reads as follows:-- "Whether Mutation No, 1053 dated 17.9.1958 has been attested in the minor age of plaintiff and is liable to cancellation, being forged, void, wrong."
This is a well settled principle laid down by superior Courts that when fraudulent mutation is challenged in the civil Court, then the onus of probandi lies upon the beneficiary of the deed/transaction to prove its genuineness as well as the three well known ingredients i,e, declaration of gift, acceptance of the offer of said gift and delivery of possession according to law.
Reference in this regard can be made to 2008 YLR Lahore 129 wherein it is held that,-- "Alleged donor having challenged the validity of the gift, it was incumbent upon the defendant to have proved the factum of gift in positive terms, such as the date, the month, the time and the venue where the donor took a conscious decision to gift away the property."
In view of the above quoted dictum, there is no evidence on record to indicate about the fulfillment of the three essential ingredients and this factum of the case already proves that Hussain Bakhsh petitioner has committed fraud With plaintiff.
12.The plaintiff is a Pardanashin lady and her identity card was prepared on the basis of form 'Alif and the particulars including her date of birth were inserted in it by her brother according to his desires but the fraudulent activities of the defendant were proved on the basis of materials available on record about the forged Mutation No, 1053 because at the time of attestation of this mutation, she was in Mouza Diyal and never delivered the possession to her brother physically.
Besides this, one Shadi Khan Lumberdar is the identifier of the plaintiff but he is a stranger and not related to her as Mehram to identify her on the occasion in the gathering before the attesting officer. Moreover, the mutation in question also does not bear the thumb impression of Mst.
Bashiran Bibi as donor nor the Roznamcha anywhere mentions the delivery of possession of suit land in favour of Hussain Bakhsh. If authority is needed, reference can be made to 2006 YLR Lahore 1836 (b).
13. As far as the contention of defendants' counsel agitated in his written arguments about the thirty years old document and its authenticity, presumption of truth is not attached to thirty years old document because the Court must consider the evidence and apply presumption where evidence in proof of documents is reliable but it is a matter of great care and caution in those cases where the valuable rights of parties are involved in the property. Reliance is placed on 2007 SCMR 497 where their Lordships held that presumption of execution of such document is permissible and not imperative even if the document be a thirty years old and was produced from proper custody.
14. From the evidence, it is envisaged that the plaintiff appeared in the Court as PW-5 and supported her claim agitated and averred in the plaint but her deposition to the extent of non- execution of Tamleek has not been shattered in the cross examination by the counsel for defendant and has established this fact that neither Tamleek in question has been attested nor she thumb impressed this document nor appeared before the attesting officer personally and as such fraud was really committed as a result of which the Mutation No, 1053 was attested on the basis of collusion of defendants with revenue officials and the appellate Court has well appreciated the evidence adduced by the plaintiff and reversed the judgment and decree of trial Court according to law. Reliance is placed on 1995 SCMR 284.
15.According to PW-1, the date of birth of plaintiff is 31.7.1935. As admitted by PW-5 in her cross" examination, her age was six years at the time of death of her father on 09.12.1940. The date of birth in National Identity Card is 1939 whereas the mutation is attested in 1958 and by calculation, her age would be 19 years and she was major at that time but the plaintiff being Pardanashin lady cannot be blamed for the stance taken in the plaint about the Tamleek mutation in her minor age or the age of puberty and this Court is only concerned as to whether the mutation in question is attested fraudulently or otherwise. Admittedly, as earlier stated, in 1958, she was major but in view of the dictum handed down in the case of Shahbir Anwar Vs. Sheikh Tariq Mehmood and others (2002 CLC Lahore 11021), where it is held that, "execution of document by illiterate person/Pardanashin lady, onus to prove-extent-where a document is allegedly executed by illiterate person, parda observing lady, the beneficiaries of the document are bound to establish by highly satisfactory and strong evidence that not only the document has been executed by such illiterate person/parda observing lady but also that such person had fully understood, the contents of the document."
Therefore, in view of the above dictum the execution of document whether it is by a minor or major lady, the person claiming the execution of .such document was required to prove its execution under the law by producing cogent evidence that it was actually executed by the plaintiff in the instant case but such proof on the part of petitioner is deficient. part of petitioner is deficient.
16. The judgment and decree impugned through the instant revision petition does not suffer from any irregularity or infirmity or jurisdictional error nor the same is the result of misreading or non- reading of evidence and based on cogent reasons, therefore, does not call for any interference by this Court and as such the revision petition being without substance is hereby dismissed with no order as to costs.