MUHAMMAD KHALID MEHMOOD KHAN, J.---One Khushi Muhammad the predecessor-in-interest of petitioners as well as respondents filed a A suit for declaration against the petitioners claiming that he is owner in possession of land measuring 22 Kanlas, 3 Marlas in village Chadar Tehsil Kamalia District Toba Tek Singh fully detailed in head note of plaint. He claimed that he is an old man of 90 years, is unable to walk being physically weak. Malik Muhammad Javed, Muhammad Sadiq, Muhammad Sadiq and Abdul Sattar are his sons and Mst.Rashida Bibi is his daughter. Muhammad Sadiq petitioner is also his son. The petitioner requested him for raising loan from Zari Tariqiati Bank and demanded the document of his land from him. He accompanied him to the Patwari and Tehsildar. He got his thumb impressions on different papers on the pretext that these are required for raising loan for the purchase of Tractor. When two weeks ago he requested the defendant/petitioner to pay the Tractor loan and got the property redeemed, the defendant continued to linger on the said matter and on inquiry from Revenue Record he came to know that defendant/petitioner has got attested a mutation of gift of his land in his favour. He claimed that he never gifted his land to the defendant/petitioner. The mutation of gift is against facts and law and based on fraud, he requested the petitioner/defendant to return his land, but he refused to do so. The defendants/ petitioners submitted written statement and raised the plea that deceased Khushi Muhammad himself has gifted the suit land to him as he is issueless, illiterate person while his other brothers are educated. They are doing their own business. He served his father and in lieu thereof his father transferred the property by way of gift in his favour. During pendency of suit Khushi Muhammad died and respondent/defendant become the plaintiffs in the suit and Muhammad Hafeez and legal heirs of Rashida Bibi became defendant with Muhammad Sadiq. The amended plaint was filed, the petitioners/plaintiffs filed the amended written statement.
Muhammad Sadiq and Muhammad Hafiz submitted contesting written statement, whereas other legal heirs of deceased Khushi Muhammad admitted the claim of respondents/plaintiffs. The learned trial Court framed the following issues out of divergent pleadings of the parties:- "ISSUES.
(1) Whether the plaintiff is owner in possession of suit property? OPP
(2) Whether the impugned hibba mutation No,999 dated 15-3-2000 is against law and facts based on fraud and mala fide, hence, ineffective and inoperative qua the rights of the plaintiff? OPP
(3) Whether a valid hibba was created in favour of defendant by the donor plaintiff? OPD
(4) Whether the plaint is liable to be rejected for non-payment of court-fee? OPD
(5) Whether the suit has been filed just to harass defendant? OPD
(6) Relief."
2. Both the parties adduced their respective evidence both oral as well as documentary. The learned Civil Court vide judgment and decree dated 11-12-2006 D dismissed the suit.
Plaintiffs/respondents assailed the said judgment and decree through an appeal which was allowed vide judgment and decree dated 13-6-2009, hence, the present revision petition.
3. Learned counsel for the petitioners submits that impugned judgment and decree of the Appellate Court is based on misreading and non-reading of recortl. He submits that petitioner No,1 served his father in his old age and in lieu thereof the deceased transferred his property in his favour by way of gift. He further submits that one of his brother Muhammad Hafeez who is attesting witness of mutation has categorically admitted that his father transferred the property in favour of petitioner No,
1. He further submits that story narrated by deceased Khushi Muhammad about the raising of loan for Tractor from Zari Tariqiati Bank was not proved on record. He further submits that learned Appellate Court has failed to appreciate the fact that no fraud has been proved on record.
4. Learned counsel for the respondents supports the judgment and submits that findings of Appellate Court is based on evidence produced by the parties whereby the petitioner has failed to prove that the mutation of gift was attested with free will, consent and knowledge of Khushi Muhammad. He further adds that Muhammad Hafeez is one of the defendant and as such his statement cannot be looked into while deciding the issue of fraud.
5. The main controversy between the parties is about attestation of gift in favour of respondent Muhammad Sadiq. The mutation of gift No,999 Exh.D1 shows that there are two attesting witnesses of said mutation i,e, Muhammad Hafeez and Arshad Ali. Muhammad Hafeez is one of the defendant in the suit and appeared as D.W.2, whereas the other witness Arshad Ali son of Faqir Muhammad appeared as P.W.2. Arshad Ali in his statement deposed that he owns land in village Chadar and is a councillor of Union Council No,58. He is also member of Zakat Committee. He deposed that he knows Khushi Muhammad, petitioner No,1 Muhammad Sadiq came to him for arranging agricultural loan for the purchase of Tractor along with Khushi Muhammad. I asked him all are your sons and why you are transferring the property to Muhammad Sadiq. Khushi Muhmmad replied all are my sons and I am transferring the property of Muhammad Sadiq for raising loan for the purchase of Tractor and my land is for all my sons and daughter. Khushi Muhammad affixed his thumb impression for raising loan only. He signed the mutation No,999 as 'Patti Dar'. He further deposed that Khushi Muhammad never gifted the suit land to Muhammad Sadiq and he transferred the property only for raising the loan. In cross-examination he admits that the identity card number available on mutation is his number. He further deposed that he has not signed the mutation after reading the same. He denied the suggestion that Tehsildar told Khushi Muhammad, Sadiq, Hafeez and myself that it is mutation of gift. Muhammad Hafeez when appeared as D.W.2 he deposed that Khushi Muhammad was his father, Javed, Sabir, Sattar, Sadiq etc. Are his elder brothers. Malik Javed is Teacher by profession. Six years ago my father gifted his land to Sadiq through a muattion. At the time of attestation of mutation his father Sadiq and Arshad were present before the tehsildar. He further deposed that Khushi Muhammad was residing with Sadiq. Sadiq served his father for his entire life. Sadiq is issueless and he spent his earning on us and that is the reason father gifted his property to Sadiq. Sadiq is in possession of suit land. My father has not filed the suit. It is his brothers who have fraudulently filed the suit. He denied that his father died in the house of Javed, but volunteered that we are living in one house as joint family. He admits that her daughter Amara is living with Sadiq. Sadiq is issueless that is the reason I have left my daughter with him for looking after my elder brother. He admits that his father was a religious person, however, he denies that his father loves to his all sons equally. These are two witnesses who appeared with reference to the disputed mutation. Muhammad Hafeez is a defendant and admittedly he is maintaining good relations with Sadiq the donee of land. His daughter is living with Muhammad Sadiq as his adopted daughter and as such he is an interested witness who has a stake in the property as Sadiq is issueless. His daughter is living with Sadiq and as such he is expecting that after the death of Sadiq or Sadiq in his life time will transfer the property in the name of her daughter being adopted daughter. The other witness Arshad Ali is not interested person nor is relative of the parties. He is a councillor, educated person, member Zakat Committee. He frankly admitted that he signed the mutation of gift but without reading the same. He disclosed the story which was narrated by Khushi Muhammad in his life time in his plaint. He is the direct witness to whom Khushi Muhammad consulted before attestation of mutation of gift and as such he is the most reliable witness in the entire evidence produced by the parties. Further it is an admitted fact between the parties that Khushi Muhammad the father of petitioner and respondent challenged the mutation in favour of H Muhammad Sadiq in his life time. He claimed that he is in possession of property. The possession of Khushi Muhammad has not challenged by Muhammad Sadiq. The learned Appellate Court while deciding issues Nos.1,2 and 3 has held that not a single witness has been produced by the parties regarding the identification of Khushi Muhammad. Muhammad Hafiz is the identifier of Khushi Muhammad but is one of the defendants. He is not Lambardar or Nazim of concerned Union Council.
6. The identification of Khushi Muhammad is disputed. Khushi Muhammad himself has admitted that he visited Tehsil and appeared before the Tehsildar and affixed his thumb impressions but he asserted in his plaint that he never transferred the property in favour of Muhammad Sadiq through mutation of gift but the transfer of property in favour of Sadiq was for raising the loan required for purchase of Tractor. The story narrated by Khushi Muhammad in his plaint was fully corroborated by the statement of Arshad Ali I who is not an interested witness. Further Muhammad Hafiz has admitted that Khushi Muhammad died in a house where all brothers are living jointly, hence, the stance of Muhammad Sadiq that Khushi Muhammad was living with him and he was looking after him in his old age has been disproved by his own witness Muhammad Hafiz and as such the learned Appellate Court's judgment is more reasoned and is based on evidence available on record. The learned trial Court has definitely misread the evidence and failed to appreciate the real controversy between the parties.
7. In view of above I feel no hesitation in dismissing the revision which is accordingly dismissed.