' KH. IMTIAZ AHMAD, J.---This civil revision under section 115, C.P.C. Is directed against the judgment and decree dated 12-5-1991 passed by the learned Civil Judge, Shujaabad by which he decreed the suit of the respondents titled "Mst.Noor Mai v. Mst. Jewan Mai etc." and dismissed the suit of the petitioners titled "Allah Wasaya v. Mst. Noor Mai etc." and against the judgment and decree passed by the learned Addl. District Judge, Multan dated 30-10-1995 whereby he dismissed the appeals preferred by the present petitioners.
2. The relevant facts for the disposal of this Civil Revision are that Allah Wasaya filed a suit for declaration and possession on 30-2-1986 against Mst. Noor Mai and Mst. Jewan Mai. The claim of the plaintiff in the said suit was that the land in dispute measuring 12 kanals fully mentioned in the head note of the plaint was owned and possessed by defendant No,2 namely Mst.Jewan Mai, who through registered sale-deed dated 21-10-1978 sold the said land to the plaintiff for sum of Rs,37,200. It was further alleged that the defendant with the connivance of one Khan Muhammad got entered Mutation No,120 of gift on behalf of defendant No,2 Mst. Jewan Mai in favour of defendant No,1 namely Mst.Noor Mai, which was attested to the extent of 8 kanals, 17 marlas on 24- 6-1971. It was further alleged that since the mutation was against the Martial Law Regulation, so, thereafter once again with the connivance of Revenue Authorities the remaining land measuring 3 kanals, 11 marlas was also included in the said mutation in the year 1979, the exact date is 1-2-1979.
The said order was challenged in the Revenue hierarchy but up to the Board of Revenue, the mutation to the extent of 8 kanals, 17 marlas remained intact. It was further alleged that said Mutation No,120 was liable to be cancelled on the ground that defendant No,2 never got attested the mutation in favour of defendant No,1 nor she ever gifted away the property nor even appointed Khan Muhammad as her attorney and all the proceedings of the mutations were fictitious. Thus, it was prayed that plaintiff be declared to be the owner of the property and relief for possession was also sought for.
3. The said suit was resisted by Mst.Noor Mai, the alleged beneficiary, who filed the written statement wherein it was maintained that defendant No,2 herself had never challenged Mutation No,120 nor ever moved for cancellation of power of attorney in favour of Khan Muhammad and that the property had been gifted away to defendant No,1 by defendant No,2 through hiba and mutation had been attested correctly. However, defendant No,2 Mst. Jewan Mai filed separate written statement wherein she admitted the claim of plaintiff Allah Wasaya and further maintained that all the proceedings of gift and mutation were based on fraud. It was also specifically alleged that she never executed any power of attorney in favour of Khan Muhammad for the said gift.
4. On the other hand Mst.Noor Mai also filed a suit for declaration against Mst.Jewan Mai and Allah Wasaya wherein the sale-deed in favour of Allah Wasaya by Mst.Jewan Mai was challenged and declaration was sought for that on the basis of gift she was owner in possession of the property.
5. Both the suits were consolidated and out of the pleadings of the parties, following consolidated issues were framed:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit is wrongly valued for the purposes of court fee? OPD
(3) Whether the plaint is hit by Order 42?
(4) Whether the plaintiff is estopped by his conduct to file the suit? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether this Court has no jurisdiction to try the suit? OPD
(7) Whether the Suit No,112 is barred by time? OPD
(8) Whether the suit is barred by the principle of res judicata? OPD
(9) Whether the defendant No,2 is estopped by his words and conduct to bring the suit? OPP
(10) Whether this suit is wrongly valued for the purposes of court-fee? OPD
(11) Whether the plaintiff is owner in possession of the suit-land?
(12) Whether the Sale-deed No,2780 dated 21-10-1978 is wrong unlawful against the facts based on fraud and void? OPD
(13) Whether the order of ACC dated 22-1-1986 is unlawful without jurisdiction and against MLR 115?
OPD
(14) Whether Mutation No,120 dated 26-4-1971 is wrong, void and based on fraud and inoperative, against the rights of defendant No,2? OPD
(15) Relief.
6. It may be mentioned here that proceedings were initiated in the suit filed by Mst.Noor Mai and as such Mst.Noor Mai was treated as plaintiff and Allah Wasaya was treated as defendant. The plaintiff Mst. Noor Mai produced the evidence consisting of one Jamshed Khan P.W.1, Muhammad Aslam P.W.2, Khan Muhammad P.W.3 and Muhammad Nawaz attorney of Mst. Noor Mai P.W.4. She also produced in evidence,,, the documents Exh. P.1 to Exh. P-10.
7. On the other hand, the defendant namely Allah Wasaya produced Fazal Hussain as DW.1, Allah Wasaya himself appeared as DW.2 and also produced documentary evidence from Exh.D-1 to Exh.D-10.
8. The learned Trial Court after hearing the parties decided Issues Nos.1, 2, 4, 5, 6 against the defendant, Issues Nos.7, 8, 9, 10 against Mst. Noor Mai, Issue Nos.3 against the defendant Mst. Jewan Mai etc., Issues Nos.11, 13, 14 in favour of Mst.Noor Mai, Issue No,12 against the defendant Allah Wasaya and resultantly decreed the suit of Mst.Noor Mai while dismissed the suit of Allah Wasaya.
Against the said judgment and decree the legal heirs of said Allah Wasaya preferred two civil appeals, one against the dismissal of their suit and the other against the decree passed against them in a suit filed by Mst.Noor Mai and both the civil appeals were taken up together by the learned Addl. District Judge, Multan who vide order dated 30-10-1995 dismissed both the appeals and upheld the judgment and decree of learned Trial Court. Feeling aggrieved the present civil revision has been filed challenging the judgments and decrees of both the courts below.
9. Learned counsel for the petitioners contended that neither in the plaint nor in the evidence it has been alleged that as to when the offer for gift was made nor there is any mention of acceptance and delivery of possession of gift, so, mere possession does in no way prove the factum of gift. He further contended that even the power of attorney in favour of Muhammad Khan is not proved so both the courts below had committed illegality by not even discussing this important aspect of the case which is a condition precedent for constituting the valid gift. He further contended that both the courts below had not even taken into consideration the written statement filed by Mst.Jewan Mai wherein she categorically denied the making of gift or execution of power of attorney. In this behalf he placed reliance upon the case-law reported in 2010 M LD 843, 2005 CLC 1938, 2004 M LD 620, 2000 M LD 1117, 2001 CLC 527, 1998 SCM R 1354, 1996 M LD 377, 2004 SCM R 1043, PLD 2003 SC 849, PLD 2003 SC 31 and 1998 CLC 323.
10. On the other hand, learned counsel for respondents supported the impugned judgments and decrees of both the courts below. He contended that possession of land was admittedly with Mst.
Noor Mai and that the suit filed by Allah Wasaya was barred by time. He further contended that in the body of power of attorney, it was specifically mentioned that it was executed for making the gift. He lastly contended that there are concurrent findings of both the courts below which cannot be set aside or interfered with if some other view is possible and placed reliance upon 2009 SCM R 54.
11. Arguments heard. Record perused.
12. As far as maintainability of civil revision is concerned, it is settled law that concurrent findings of facts arrived at by the courts below cannot be interfered with unless and until the court comes to the conclusion that the findings were perverse, patently against evidence or so improbable that acceptance thereof would tantamount to perpetuating grave miscarriage of justice. Same principle was laid down in a case-law referred by learned counsel for respondent 2009 SCM R 54.
13. The material issue in this case is Issue No,11 which is to the effect that whether Mst.Noor Mai is owner in possession of the land? The said Mst.Noor Mai had based her claim on the basis that the land in dispute had been gifted away to her by Mst.Jewan Mai. At the cost of repetition, it may be mentioned here that Mst.Jewan Mai in her written statement denied of making any gift or execution of power of attorney in favour of Khan Muhammad. It may also be mentioned here that Khan Muhammad is "Chachazad" of Mst.Jewan Mai and brother of Mst. Noor Mai, to whom allegedly the gift was made. In this way, when Khan Muhammad was transferring the property in the name of his sister it was mandatory for him to have specific permission from Mst.Jewan Mai. However, Mst.Noor Mai in her plaint had not alleged this aspect. The perusal of whole plaint shows that according to Mst. Noor Mai, said Khan Muhammad got entered Mutation No,120 and got it written there that Mst.Jewan Mai had gifted away the entire property to Mst.Noor Mai. Absolutely nowhere in the entire plaint it has been mentioned that as to when and in presence of whom and where Mst.Jewan Mai ever made any offer for making the gift in favour of Mst.Noor Mai. Same is the case with regard to other aspect of acceptance of gift and delivery of possession. This is a most fatal lacuna since in order to constitute valid gift all these three aspects must had been alleged in the plaint and had to be proved in the evidence. Mere mentioning of the fact that mutation of gift was entered and attested in no way constitutes the valid gift. This aspect becomes more important when Mst.Jewan Mai herself had denied the execution of the said gift. Both the courts below had placed reliance upon a document Exh.D-10 which is Mutation No,106. This document shows that on 25-10-1970 Allah Wasaya and Mst.Jewan Mai. Got entered this mutation of gift in favour of Mst.Noor Mai but this mutation could not be attested. This document in no way could be relied upon by the courts below on the ground that mere making entry of mutation does in no way shows that in fact Mst.Jewan Mai ever appeared before the said Patwari. Even the said Patwari or the Revenue Officer had not been produced in evidence, so, no reliance could be placed upon this document.
14. Now, we come to the other important aspect which is power of attorney on the basis of which the land had been gifted away to Mst.Noor Mai. The said document is available on record as Exh.P-
4. Mst.Jewan Mai had denied execution of this document. Perusal of this document shows that Mst.
Jewan Mai intended to gift property to Mst.Noor Mai. The said Mst. Noor Mai is wife of brother of Mst.Jewan Mai and so for that purpose she had appointed Khan Muhammad as her special attorney who had the authority to transfer the property through mutation or registered deed in favour of Mst. Noor Mai. It may be mentioned here that this is a registered document executed on 31-12-1970. The question arises that when Mst. Jewan Mai herself appeared before the Sub- Registrar for registration of this document and that too only for the purpose that Khan Muhammad should transfer the property to Mst.Noor Mai, then what debarred her to directly transfer the property to Mst.Noor Mai instead of adopting intervening method. In order to prove this document Exh.P-4, the plaintiff had produced Jamshed Khan as P.W.1. This witness deposed that his father Abdul Rahim Khan deceased was "Araiz Navees", who had died and he had brought the register which was in his possession and in this register there is entry of Document No,729 dated 31-12-1970 on behalf of Mst.Jewan Mai for executing power of attorney in favour of Khan Muhammad. The other witness is Muhammad Aslam P.W.2, in whose presence the said power of attorney was registered and he identified Mst.Jewan. Mai. The attesting witnesses of the said power of attorney had not been produced by the plaintiff. It had also come in evidence that Mst.Jewan Mai was Pardah Nashin lady. No Revenue Officer who registered this document was produced by the plaintiff and apparently even the said power of attorney which has been specifically denied by Mst.Jewan Mai cannot be said to be proved. The third important witness is Khan Muhammad who allegedly was appointed as attorney by Mst.Jewan Mai and who in fact got Mutation No,120 attested in favour of Mst.Noor Mai. This witness deposed that Mst.Jewan Mai had gifted away the property to Mst.Noor Mai and power of attorney was attested by Umar Wada and Jind Wada and said power of attorney was produced before the Tehsildar, who wrote the statement of Mst.Jewan Mai and got her thumb-mark affixed on it and thereafter after two months he got the mutation attested in favour of Mst. Noor Mai. In the examination-in-chief he further deposed that conversation of gift took place at the house of Allah Wasaya who was the husband of Mst.Noor Mai and on that moment Allah Wasaya, Umar Wada, Khan Muhammad, Nawaz, Mst.Jewan Mat and Mst.Noor Mai were present and Mst.Noor Mai accepted the offer and then Mst.Jewan Mai transferred the possession. Now this part of the statement had not been mentioned in the plaint and even in this statement it is not mentioned that as to at what time and what period the offer was made. Even the name of said witnesses were not mentioned in the plaint.
15. Muhammad' Nawaz appeared as P.W.4 who deposed that he was attorney of Mst.Noor Mai and Mst.Jewan Mai about 18 years back had transferred the land to Mst.Noor Mai. He also deposed that he was also present when the matter of gift was considered and Khan Muhammad, Umar Wada, Mst. Noor Mai, Mst. Jewan Mai and Allah Wasaya were present and Mst. Noor Mai accepted the offer. Now, this witness had also not mentioned as to where this conversation took place nor he had mentioned that in fact Mst.Jewan Mai had made offer of gift.
16. There is yet another important aspect of the case that Mst.Noor Mai was wife of brother of Mst.Jewan Mai, whose name was Allah Wasaya, who allegedly was also present at that time. If at all Mst.Jewan Mai wanted to make gift, her natural conduct should have been that she would have gifted away the property to her real brother and not to the wife of her real brother. Thus, after going through the entire evidence, I am of the considered opinion that most important aspect for constituting the valid gift i.e, offer, acceptance and delivery of possession had neither been alleged in the plaint, or proved through evidence, so, it can safely be held that in fact Mst. Jewan Mai had never gifted away the property to Mst. Noor Mai. Both the courts below had not even discussed this aspect of the case which was very much necessary for constituting the valid gift. Mere entry of mutation of gift can in no way be said that the valid gift had been made.
17. In view of what has been said above, the plaintiff has miserably failed to prove Issue No,11 and both the courts below had committed patent illegality by declaring the valid gift in favour of Mst.
Noor Mai.
18. As far as Issue No,12 is concerned, the registered sale-deed in favour of plaintiff Allah Wasaya is available on record as Exh.D-4. Mst.Jewan Mai in her written statement had also admitted this fact and even otherwise the plaintiff Mst. Noor Mai had challenged this document on the ground that since Mst. Jewan Mai was not owner of the property so she could not execute this document. It stands proved that Allah Wasaya plaintiff had purchased this property from Mst.Jewan Mai through registered sale-deed, so Issue No,12 stands decided against Mst.Noor Mai and Issue No,14 also stands decided in favour of Allah Wasaya plaintiff.
19. The net result of above discussed is that this Civil Revision stands accepted and the impugned judgments of both the courts below are set aside with the result that suit filed by Allah Wasaya stand decreed as prayed for while suit filed by Mst. Noor Mai stands dismissed.