' CH. NAEEM MASOOD, J.- With the consent of learned counsel for the parties, the instant civil revision is being treated as a Pacca Case.
2. Mst. Sahib Zadi, respondent No,l, filed a suit for declaration stating that on the death of her father she inherited the property along with other heirs of Shahamand through Mutation of Inheritance No,327, dated 13-11-1973 and that on 26-1-1989 she contacted the Patwari. She was told that she was not owner of any share of the property left by her father. Her brother Zakir Hussain (presently petitioner No,3) had got the land of Mst. Sahibzadi mutated in the names of his sons through mutation of "Hibba" No,874. Mst. Sahibzadi denied that she had gifted the property to Rab Nawaz and Sajid , the sons of Zakir Hussain, her brother (petitioner No,l and 2). She also denied to have attested any mutation in favour of her nephews, the sons of Zakir Hussain.
3. The suit was contested by the defendants and it was asserted in reply that Mst. Sahibzadi had willingly gifted the property to Rab Nawaz and Sajid.
4. On the pleadings of the parties, the following issues were framed:
(1) Whether the Mutation No,874 dated 13-6-96 in favour of the defendants Nos.l & 2 is against the law and facts and is liable to be declared to be null and void? OPD
(2) Whether the plaint is entitled for the declaratory decree as prayed for? OPP
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the plaintiff has no cause of action and locus stnadi to file the instant suit ? OPP
(5) Whether the impugned mutation was rightly sanctioned in favour of the defendants in accordance with Law? OPD
(6) Relief.
12- On behalf of the plaintiff, Mst. Sahibzadi appeared as P.W.1 whereas she produced P.W.2, Subab Sadiq, P.W.3 Ghulam Mustafa and P.W.4 Ashiq Hussain. She also produced documentary evidence viz Exh. P/l attested mutation, dated 6-2006, Exh. P/2 attested copy of mutation No,327 dated 13-11- 1973, copy of Jama Bandi for the year 1991-92 Exh.P.4, copy, of Jama Bandi for the year 1996-97, Exh.
P/5.
5. On the side of the defendants, Zakir Hussain appeared as P.W.1 and he produced D.W.2 Irshad Hussain, D.W.3 Muhammad Zamir, DW.4 Mohammad Nawaz. He also produced the documentary evidence as follows:-
(i) Exh.D/1 copy of Mutation No,874 dated 13-6-1996;
(ii) Exh. D/2 copy of Jama Bandi for the years 1996-1999 to 2002;
(iii) Exh. D/3 copy of Khasra Girdawari for the years 1997 to 2004 (iv) Mark D-1. Photo copy of Mutation No,472 dated 30-9-2008.
6. After the appraisal of the evidence of the parties, the learned trial Court dismissed the suit vide judgment and decree dated 22-2-2006 while upholding the Mutation No,874 dated 13-6-1996 made in favour of petitioners Nos. 1 & 2.
7. The said judgment and decree was challenged before the learned appellant Court. The appeal was accepted by the learned appellate Court vide judgment and decree dated 30-7-2008 and the judgment and decree of the learned civil Court was set aside. Against the decree of the learned appellate Court, the present revision petition has been filed.
8. The learned counsel for the petitioner vehemently argued that serious mis-reading and non- reading of the evidence on the record has occurred whereby the impugned decree has been passed. It is also vehemently submitted by the learned counsel of the petitioners that the gift made by Mst. Sahibzadi has been proved on the record and all the ingredients of gift i.e, offer, acceptance and the consequential possession are proved on the record. It is further submitted that the onus of proving the gift has been fully discharged by the petitioners through the evidence of the witnesses. It is also prayed that the relief of possession having not been prayed for the suit was not maintainable in the present form.
9. The learned counsel of the respondents has taken me through the record of the case and has seriously defended the impugned judgment and decree passed by the learned appellate Court and has submitted that there was a very heavy onus on the shoulders of the petitioners to discharge with regard to the gift in question, which has not been discharged in accordance with law and rulings.
10. I have considered the arguments of the learned counsel of the parties and have perused the record. l2. It is case of its own nature wherein the sister of petitioner No,l is allegedly gifting away the agricultural property to the sons of his brother when she is herself a married woman having her own children,
13. The evidence on the record goes a long way to establish that after the death of their father Mst.
Sahibzadi inherited her share. She has stated that she has love and affection with petitioners Nos.l and 2. But she did not donate the agricultural land in their favour, nor she ever appeared before the Revenue Officer for that purpose. The other P.Ws. Subah Sadiq, Lamberdar, has supported the plaintiff Mst. Sahibzadi Likewise, Ghulam Mustafa, Ashiq Hussain P.W-3 and P.W.4 made trustworthy statement that Sahibzadi had never appeared before the Revenue Officer to make a mutation of gift in favour of petitioners No, 1 and 2. Mst. Sahibzadi is ah old lady. She has two daughters. She stated that both were married and one of them was divorced Und she lives with her. She has further stated that the said daughter was again married and again had been turned out from the house of her husband. She is making a statement against her real brother and that also relating to her own property which she claims that she has never gifted having been supported by three independent P.Ws.
14. So far as the petitioners are concerned, amongst others, Zakir Hussain, petitioner No,3, brother of Mst. Sahibzadi is sister and Rab Nawaz and Sajid are his sons. He has fuither stated that his sister, Mst. Sahibzadi herself in the witness box has stated that Mst. Su.Ibzadi is sister and Rab Nawaz and Sajid are his sons. He has further stated that his sister, Mst. Has two daughters and no son.
Therefore, his sister Mst. Sahibzadi has stated to him that as he had no son, therefore, she wanted to gift the property to the sons of Zakir Hussain her brother and he had accepted the offer of Mst.
Sahibzadi and consequently Mst. Sahibzadi got entered the mutation of gift on 11-6-1996 in favour of his sons. The Tehsildar came from Faisalabad. The Tehsildar sanctioned the mutation and Irshad and Zameer verified it. Irshad Hussain is a chance witness. He has stated that he was sitting in Union Council where Zakir Hussain and Mst. Sahibzad5 came. He has stated that Mst. S;,J,ibzadi offered to Zakir Hussain to dc lated the land, but Zakir Hussain replied that the property be gifted to his sons. Mst. Sahibzadi insisted to donate the property to Zakir Hussain and Zakir Hussain insisted that it should be donate in the name of his children and after two days Mst. Sahibzadi gifted the property in the name of Rab Nawaz and Sajid. He has admitted that at the time of report, the Lamberdar, Chairman Zakat Committee and R.D. Member were not present.
15. Likewise is the shaky statement of Mohammad Zamir, he is also a chance witness. He had gone to Union Council to get a copy of the notice where he asked Mst. Sahibzadi as to why she was there, to which Mst. Sahibzadi replied to him that she had given the land to his brother and nephew and that the mutation was sanctioned in his presence. He has admitted that Irshad Hussain and (sic) had been serving together for some period. Likewise is the statement of Muhammad Nawaz. He has admitted that whenever a mutation is sanctioned, for verification, the Lamberdar of the village goes and he did not know whether the mutation in question had been verified by the Lamberdar and the member of the Union Council. The evidence produced by the petitioners is not confidence inspiring particularly with regard to the gift. Additionally, the mutation Attesting Officer was not produced.
16. It is a settled principle of law that once factum of gift is denied then the onus shifts on the party who is the beneficiary of the gift. In the present case the beneficiary of the gift has utterly failed to prove the offer acceptance and delivery of possession in furtherance of gift.
17. The Honourable Supreme Court has not sanctioned such like mutation in a case reported in PLD 2003 SC 668 (Muhammad Akram v. Altaf Ahmad). It has been held by the apex Court as follows:- "S.42. Mutation confers no title once a mutation is challenged the party that relief on such mutation is bound to revert to the original transaction to prove such original transaction which resulted into the entry , of attestation of such mutation in dispute. Mutation not being a title deed, merely an evidence of some s original transaction between the parties that has been struck some where prior to entry of a mutation person relying on the mutation in the present case, had failed to revert back to: any transaction and bring on record any oral or documentary evidence thereof. Burden squarely lay on the said person to prove the transaction because the existence ' thereof had throughout been alleged by him in the affirmative and he was bound to fail in the event of the non- proof of the transaction."
18. I am further fortified by the following observations in PLD 1990 SC 692 (Janat Bibi v. Sikandar Ali):- "(a) Pardanashin Lady-Question whether a lady is a Pardanashin lady is a question of fact. Burden of proof in respect of a document purported to have been executed by a Pardanashin lady affecting her right or interest in the immovable property on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was ,substantially understood by the lady and it was really her free and intelligent act, and if she is illiterate it must have been read, over to her, Rule is also applicable to ignorant and illiterate women."
19. It has been held by the Honourable apex Court about co-sharer as follows:~ ' PLD 1994 SC 462 (Mool Chand and 9,others v. Muhammad Yousaf).
(i) Co-sharer ' Adverse possession, plea of, If property is joint, possession of co-heir is sufficient to be considered as possession of all co heirs. Some co-heirs on the ground of exclusive possession cannot defeat the claim of other co-heirs by taking plea of adverse possession. Persons taking such plea have to produce positive evidence to show exclusive and ouster of other co-heirs (Adverse possession).
' If property is joint; possession of one co-heir is sufficient to be considered as possession of all coheirs. Some co-heirs on the ground of exclusive possession cannot defeat the claim of other co- heirs by taking plea of adverse. Persons taking such plea have to produce positive evidence to show exclusion and ouster of other co-heirs (p 472-e). When property is inherited by co-heirs of deceased, then possession of one co-heir in law possession of all the co-heirs and mere non- participation in profit or property by one co-heir and exclusive possession by others would not be sufficient to constitute adverse possession. Persons making such claim have to show that they were in hostile possession of the property in dispute to the exclusion and ouster of others."
20. It has been held by her Honourable apex Court regarding explanation of gift as follows:- ' Gift. For completion of gift, declaration, acceptance of gift and delivery of possession, simultaneously with such declaration and acceptance were mandatory. In absence of any such ingredients gift would not be complete. Where entries in revenue record did not reflect factum of change of possession after alleged gift and mutation itself was not thumb-marked by donor and donee, transaction of gift could not be of other co-heirs.
21. Moreover, the petitioners have utterly failed to produce the quality and quantum of proof accepted from a beneficiary of gift like the petitioners who are closed blood relations of Mst.
Sahibzadi, the donee. The Honourable apex Court has consistently laid the parameters of such evidence in the matter of gift in the dictum laid down in the following authoritative pronouncement.
(i) 2007 SGMR 236 (Aurangzeb v. Mohammad Jafar)
(ii) 2005 SGMR 1690 (Muhammad Idrees v. Zeenat Bibi)
22. The gift has not been proved with unequivocal evidence by the petitioners. There is nothing on the record to establish the delivery of possession. In pursuance of the gift made by Mst. Sahibzadi, even though the possession was not with Mst. Sahibzadi at the time of gift but any sort of symbolic possession was must. Mst. Sahibzadi was co-sharer in the property, therefore, the suit was competently framed and there was no need of making a prayer for possession. This is unfortunate that the brother has deprived his own sister from the property in the grab of his sons. There is no iota of evidence that petitioners Nos.l and 2 ever accepted the offer of gift from Mst. Sahibzadi. It is all the making of Zakir Hussain, petitioner her brother.
23 -Besides there is no irregularity or illegality in misreading or non-reading of the evidence on the record by the lower appellate Court to invite the exercise of revisional jurisdiction. ..
24. In sequel thereof the revision petition is dismissed leaving the parties to bear their own costs.