' ATTAULLAH KHAN J.---A suit was filed by Zafar Khan and others, plaintiffs (now respondents) against Muir Abdullah and others defendants (now petitioners) for declaration to the affect that they are owners of the suit property fully described in the plaint and gift Mutation No,2311 attested on 27-4-1995 is illegal, fraudulent, collusive and without consideration, therefore, liable to be set aside.
2. The suit was contested by the defendants who filed written statement which resulted into the framing of the following issues:-
(1) Whether the plaintiffs have got a cause of action?
(2) Is the suit is within time?
(3) Is the suit incompetent in its present form?
(4) Are the plaintiffs estopped?
(5) Is the gift Mutation No,2311 dated 27-4-1995 fraudulent, against facts and hence liable to cancellation?
(6) Are the plaintiffs entitled to the decree as prayed for?
(7) Relief?
3. After recording evidence pro and contra and hearing arguments of the learned counsel for the parties, suit of the plaintiff was decreed as prayed for vide judgment and decree of the learned Civil Judge 1st Class Lakki Marwat dated 28-10-2004.
4. Feeling aggrieved, the defendants went in appeal to the appellate Court but in vain vide judgment and decree dated 15-12-2004 passed by the learned District Judge Lakki Marwat.
5. Still not contented from the concurrent judgments and decrees of the Courts below mentioned above, the defendants Amir Abdullah Khan and others have now come to this Court through the present revision petition.
6. Learned counsel for the petitioners argued that both the Courts below have failed to appreciate properly the evidence on record and have wrongly decreed suit of the plaintiffs against the petitioneRs,
7. On, the other hand, learned counsel for the respondents argued that the FSL report is in favour of the plaintiffs/respondents. He further argued that the mutation is that of gift while in the written statement, the plaintiffs have shown it as of sale and thus the impugned judgments and decrees of the learned two Courts below being based on correct appreciation of evidence brought on record need no interference.
8. I have carefully gone through the record of the case and considered the arguments of the learned counsel for the parties.
9. The impugned mutation is available on file as Exh.P.W.2/D-1 which reveals that Mst. Malmal Bibi, Mst. Bakhmal Bibi and Ahmad Nawaz have thumb-impressed it. 'The, record further reveals that the thumb impressions aloe with other signatures were forwarded to the Handwriting Expert whose report is available on file. The opinion of the Handwriting Expert is that the signatures of the ladies are different from the one available on their Identity Cards. In this way, the Handwriting Expert has negated the thumb-impressions of the two ladies.
10. Patwari Halqa appeared as P. W.1 who has stated that he cannot say whether the two ladies Mst.
Malmal Bibi and Mst. Bakhmal Bibi had appeared at the time of attestation of the mutation. He has also expressed his inability to say as to whether their statements were recorded through Local Commissioner or not. In cross-examination he has also admitted that at the time of attestation of the impugned mutation, the sale mutations were prohibited.
11. The plaintiffs have denied their thumb-impressions on the mutation and also denied recording their statements before the Local Commissioner.
12. As stated above, the Handwriting Expert has also given negative report stating that the impressions of the ladies are different from their impressions in the Identity Cards. This point finds support from the statement of patwari halqa who was not sure as to whether these two ladies had appeared and thumb impressed in his presence. Similarly he is not aware as to whether their statements were recorded through Commission or not. The relevant portion of the statement of Patwari is reproduced below:- {{URDU TEXT}}
13. Another statement is also worth-consideration. Mr. Asmatullah Khan Girdawar has appeared as P.W.2 and he is the person who had allegedly recorded the statement of the two ladies. In his cross-examination, he has given some contradictory statement. According, to him, he has scribed the names of the ladies in his office while recorded their statements on the spot. Now question arises as to why he failed to record their names on the spot after recording their evidence and left it to be taken in his office. This creates doubt about the genuineness of recording the statements of the two ladies.
14. Another interesting feature of the case is regarding the nature of the disputed mutation.
Apparently, the disputed mutation is that of gift, and throughout in the evidence, the defendants have termed it as gift. Amir Abdullah Khan, defendant/petitioner, has appeared as D.W.3 and has stated as follows:- {{URDU TEXT}}
15. The above statements means that the impugned mutation was that of sale and not gift. The reasons given by the witnesses is that since the sale mutations were prohibited in the locality during those days, therefore, a gift mutation was attested. This also creates doubt. In cross- examination, the contesting defendant has stated that he did not transact the sale either with the two ladies or with Abdul Sattar. According to him, he purchased the property from Zaffer Khan. The property was also owned by the two ladies, but the transaction was effected with Zaffer Khan only.
Again, the sale has made the transaction defective.
16. The entire evidence produced by the plaintiffs in the trial Court reveals that they are owners of the suit property and have not alienated it in favour of defendant No,
1. Moreover, if it is considered to be gift, then the defendant No,1 was required to prove the ingredients of a valid gift consisting of offer, acceptance and delivery of possession. None of these ingredients has been proved. So on this ground also, the mutation in this suit is defective.
17. Both the Courts below have appreciated the evidence produce by., the parties in its true perspective and learned counsel for the petitioners has failed to point out any illegality, mis- reading, non-reading of evidence or jurisdictional defects in the concurrent findings of the Courts below so as to call for interference by this Court in exercise of its revisional jurisdiction under section 115, C.P.C.
18. Further more, the concurrent findings of the Courts below based on facts and sound appreciation of evidence and data available on record in favour of the respondents cannot be set at naught by this Court unless it is established by cogent and convincing evidence that the same are perverse, fanciful or erroneous in view of the dicta handed down by the apex Court in the cases reported as Abdur Rahim and another v. Mst. Jantay Bibi and others (2000 SCM R 346), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court, 291) and Muhammad Rashid Ahmad v. Multammad Siddique (PLD 2002 Supreme Court 293).
19. The result of my above discussion is that I find no merit in this revision petition which is accordingly dismissed leaving the parties to bear their own costs.