SAGHEER AHMAD QADRI, J. Brief facts in order to dispose of this civil revision are that Mst.Zeenat Bibi, petitioner-plaintiff (hereinafter called the 'plaintiff) filed a suit for declaration with permanent injunction against the respondents-defendants (hereinafter called the 'defendant') alleging therein that her father Muhammad Yousaf, common predecessor-in-interest of the parties was the owner of land fully mentioned in para-2 of the plaint; that the eye sight of Muhammad Yousaf become poor due to old age as well as mental disorder who subsequently died in the year 1997; that at the time of death he was living with his sons, namely, Muhammad Younas and Muhammad Ayub, defendants Nos.1 and 2; that after the death of her father plaintiff Zeenat Bibi approached Halqa Patwari sanctioning of mutation of inheritance of the property left behind by the deceased Muhammad Yousaf when it came into her knowledge that almost one and half month prior to the death of Muhammad Yousaf, defendants Nos.1 and 2 in connivance with the revenue officials fraudulently got transferred the said land in their favour through Gift ('Hiba') vide Mutations Nos.154, 158 and 159 dated 24-10-1997 just to deprive the petitioner from her 1/7th share in the disputed land left behind her father Muhammad Yousaf.
3. The suit was contested by the respondents by filing their written statement refuting all assertions made therein. Out of the divergent pleadings of the parties following issues 'were framed:
(1) Whether the plaintiff has no locus standi to file this suit? OPD
(2) Whether the suit is bad for non-joinder of necessary parties? OPD
(3) Whether the gift Mutations Nos.154, 158 and 159 dated 24-10-1997 are an outcome of fraud and misrepresentation? OPP
(4) Whether the plaintiff is entitled to the decree as prayed for? OPP
(5) Relief.
4. Mst.Zeenat Bibi, plaintiff appeared as P.W.1. and examined Faiz Bakhsh son of Lal Khan as P.W.2.
Learned counsel for the petitioner plaintiff while getting exhibited Mutations Nos.154, 158 and 159 as Exh.P1 to Exh.P3 closed her affirmative evidence. One of the defendants Muhammad Younus appeared as DW-1 and also examined Sabir Hussain as DW-2 as well as DW-3 Bagh Hussain and his learned counsel closed the evidence on behalf of the defendants-respondents.
5. The learned trial Court after hearing the parties while deciding Issues Nos.2 and 3 against the petitioner-plaintiff Issues Nos.1 and 4 against the respondents-defendants dismissed the suit vide judgment and decree dated 11-1-2001. Feeling aggrieved by that judgment and decree plaintiff preferred an appeal which too met the same fate vide judgment and decree dated 22-5-2001 passed by the learned Additional District Judge, Rawalpindi. Now the petitioner has approached this Court through this civil revision against the concurrent findings of both the learned Courts below.
6. Learned counsel for the plaintiff has argued that the fraud was alleged by the plaintiff in her statement while appearing as P.W.1 and this part Of her statement was not cross-examined by the respondents-defendants; that except defendant No,1 the other defendants-donees did not appear before the trial Court; that only one marginal witness, namely, Sabir Hussain DW-1 of the mutations in question was got examined by the defendants during trial; that burden to prove the genuineness of the mutations was on the beneficiaries i,e, defendants Nos.1 and 2 which they did not discharge; that none of the revenue officials including Patwari, Tehsildar, etc. were summoned nor examined by the defendants to prove the mutations; that the learned trial Court decided Issues Nos. 3 and 4 that the gift was executed by common predecessor in interest of the parties in Marz-ul-Maut but this fact was never agitated in the pleadings by the plaintiff; that acceptance of the gift according to mutations (Exh.P1 to Exh.P3) is not proved as only one of the donees-defendants DW-1 Muhammad Younus signed the said mutations; that DW-1 Sabir Hussain during cross-examination stated that the second marginal witness. of the mutations, namely, Altaf Hussain if summoned to be examined he would object to it as he was his opponent. However, he refuted the suggestion that actually if that witness be called he would depose the actual facts before the court. While relying on Miraj Din v. Mst.Sarwar Bibi and 5 others (2010 M LD 843), Khaliq. Dad and others v. Mst.Zeenat Khatoon and others (2010 SCM R 1370), Muhammad Boota v. Mst.Rashida Bibi and others (2008 SCM R 343), Hakim Ali and 3 others v. Sheikh Muhammad Mazhar Ali (1997 CLC 1645), Muhammad Bakhsh v. Elahi Bakhsh and others (2003 SCM R 286), Barkat Ali through Legal Heirs and others v.
Muhammad Ismail through Legal Heirs (2002 SCM R 1938) Imran Khan and others v. Aftab Khan 2008 CLC 1043 and Khurshid Bibi and others v. Ramzan and others (2005 CLC 1714) prayed that this civil revision be allowed while setting aside the impugned judgments and decrees of both the learned courts below.
7. On the other hand, learned counsel for the defendants has vehemently opposed this petition on the grounds that the plaintiff raised two contradictory pleas firstly it was agitated that the impugned 'mutations were got attested by the plaintiff when the donor i,e, common predecessor in interest of the parties was under 'Marz-ul-Maut' and at the same time it was agitated that actually Exh.P4 exchange mutation was to be executed by the deceased and in that garb defendants got executed mutations under challenge in this suit; that Khadija Bibi, mother of the plaintiff when she (Mst.Zeenat Bibi) was about two years old left the house of her husband (plaintiff's father Muhammad Yousa and subsequently they never had any relationship with each other so the plaintiff was never in the knowledge of the circumstances of the deceased nor she ever visited him during his last days of ailment and this fact had been suggested by the defendants to the plaintiff while she appeared as P.W.1.; that one of the attesting witnesses of the mutations DW-1 Altaf Hussain maternal uncle's son of the plaintiff was never produced by the plaintiff to disprove the mutations under challenge. Learned counsel for the defendants further argued that concurrent findings of fact passed by both the learned courts below cannot be interfered while exercising revisional jurisdiction by this Court as no mis-reading and non-reading of evidence could be pointed out by the learned counsel for the plaintiff. While relying on Mussarat Sultana v.
Muhammad Saeed (1997 SCM R 1866), General Manager, HBFC and others v. Ali Reliman and others (1995 CLC 531), Muhammad Ishaq and 13 others v. Muhammad Iqbal and 3 others (PLD 1975 Lahore 1314), Mst.Chanan Bibi and 4 others v. Muhammad Shafi and 3 others (PLD 1997 SC 28), Bakht Zamin v. Said Majid (1996 CLC 1805), Mian Maqbool-urRellinan through Legal heirs and another v.
Mst.Munawar-un-Nisa and 8 others (2001 CLC 1804) and. Mst.Rasul Bibi v. Nasrullah Khan (1994 CLC 1774) prayed that this civil revision be dismissed.
8. I have heard the learned counsel. for the parties and perused the record.
9. There is no denial to the factual aspect that Mst.Zeenat Bibi, plaintiff is step sister of the defendants Nos.1 and 2 while the remaining respondents are her nephews. The defendants in their written statement admitted the above mentioned relationship between the parties. According to the record Muhammad Yousaf, predecessor-ininterest of the parties died in December, 1997 leaving behind the plaintiff and defendants Nos.1 and 2 as his legal heirs. The plaintiff in her suit for declaration in paras Nos.4 and 6 agitated That her father Muhammad Yousaf at the time of his death was residing with his sons, namely, Muhammad Younus and Muhammad Ayub, defendants Nos.1 and 2. After his death she contacted Halqa Patwari for getting attested the inheritance mutations in respect of the land left by her deceased father Muhammad Yousaf when it transpired that the defendants in connivance with the- officials of revenue department had got mutated as Gift whole of the landed property of the deceased vide Mutation Nos.154 (Exh.P1), 158 (Exh.P2) and 159 (Exh.P3) dated 24-10-1997 depriving her share in the inheritance to the extent of 1/7th of the property. She asserted that the mutations were result of fraud and misrepresentation by the respondents-defendants in connivance with the revenue officials.
10.If the written statement filed by the defendants is seen they as already mentioned above did not deny the relationship agitated by the petitioner plaintiff between the parties, however, in reply to paras 5 and 6 of the plaint they stated:-- "Para 5. That para No,5 as put in is not correct. The plaintiff fully knew that her father had transferred the suit-land in favour of the defendants through mutations with his free will and the said gift was duly accepted by the donees and the possession was also transferred at the time of attestation of the mutations. It is incorrect that the late Muhammad Yousaf has transferred the whole land to the defendants. There is still valuable agricultural land in the name of the deceased for which the. plaintiff shall get her share.
Para 6. That para No,6 is incorrect and is denied. The deceased Muhammad Yousaf at thetime of transfer of land through gift mutations was healthy and was in full senses and had transferred the land in favour of defendants willingly and, with free consent."
11. Admittedly out of the pleadings of the parties five issues as mentioned above were framed by the learned trial Court and parties led their respective evidence as mentioned above. The plaintiff examined herself as P.W.1. and she categorically stated that her deceased father never consented but the impugned mutations were result of fraud and mis representation on the part of the defendants which fact came into her knowledge subsequent to his death. P.W.2. Faiz Bakhsh also reiterated the same facts. It was stated by both the witnesses that Muhammad Yousaf, deceased was seriously ill prior to his death and lie died about one and half months later to the sanctioning of the three impugned mutations under challenge.
12. It is now settled proposition of law that whenever any mutation is challenged on the basis of fraud or mis representation the burden always shifts to the person claiming himself beneficiary of any such transaction. The mutations under challenge show that through pronouncement of oral gift deceased Muhammad Yousaf transferred whole of his property in the name of the defendants excluding the plaintiff. If three mutations (Exh.P1 to Exh.P3) are seen these are shown witnessed by Altaf Hussain son of Sher Zaman (not examined) and Sabir Hussain son of Ghulam Hussain Muhammad Younus and Muhammad Ayub, defendants Nos.1 and 2 defendants/donees are shown present at the time of Mutation No,159 (Exh .P3), while defendant No,1 Muhammad Younus one of the donees was shown present at the time of attestation of Mutation No,154 (Exh.P1). The defendants did not examine other attesting. witness; namely, Altaf Hussain son of Sher Zaman and during cross examination Muhammad Younus-defendant No,l. while appearing as DW-1 stated:-- {{URDU TEXT}} The third witness DW-3 Bagh 'Hussain never remained associated with the mutation proceedings, therefore, his statement was not relevant for that purpose... Only one attesting witness was examined and he too was suggested by the learned counsel for the plaintiff that Muhammad Yousaf, deceased donor was never produced before the revenue officials.
13.There is no cavil to this proposition that in order to prove the execution of a gift its three ingredients i,e, offer, acceptance and delivery of possession are to be proved. Herein' this case as already mentioned above that only two of the donees allegedly appeared before the revenue officials at the time of attestation of the gift mutations the remaining donees did not appear before the revenue officials nor they bothered to appear as witnesses in court to prove the factum of acceptance of offer of the gift pronounced by the deceased Muhammad Yousaf. Except Muhammad Younus, defendant No,1 all the remaining defendants -after filing of the written statement never bothered to appear in the trial court although they being beneficiaries were obliged to prove the factum of offer and acceptance of the gift and subsequently the delivery of possession of the land in dispute subject-matter of the impugned 'mutations.
14. The defendants being beneficiaries heavy burden lay on them to prove the fact that donor appeared before the revenue officials/Tehsildar and made offer about the gift of the disputed property and accepted by them. As fraud was alleged, therefore, it was the duty of the defendants to prove beyond any shadow of doubt the execution of the mutations. As already mentioned only one attesting witness was examined and about second one defendant No,1 while appearing as DW-1 stated that he was likely not to favour him as he was his enemy. The defendants did not bother to examine any of the revenue officials to prove that the transactions i,e,. mutations were genuine and the donor appeared and made offer for the gift in favour of the defendants accepted by them and that whole of the proceedings were conducted accordingly. Admittedly no presumption of truth B is attached to a mutation and specially when it is alleged by one side as in this case that it was the result of fraud and misrepresentation it was the duty rather heavy burden lay on the defendants/beneficiaries to prove the same by examining the attesting witnesses as well as the revenue officials for that purpose. In this -respect reliance can be placed on Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others (2010 SCM R 1370). The relevant paragraph whereby their Lordships of the Supreme Court observed so is hereby reproduced for facility of reference:-- "The mutations in question clearly depict that all the donees were not present at the time of sanctioning of mutations. It is settled law that it is the duty and obligation of the beneficiary to prove the mutations by producing evidence in accordance with the accepted principles and in terms of Qanun-e-Shahadat Order, 1984. Otherwise, it does not create any title. The judgment of the Lahore High Court is in consonance with the law laid down by this Court in various pronouncements according to which onus of proof of transaction embodies. in mutation is essentially upon the beneficiary and onus to prove voluntary execution of gift upon beneficiary of gift as well as to establish that transaction was the result of -conscious of application of mind by donor and not under influence of fraud played with him."
15. This view further can be fortified by the judgment in Miraj Din v. Sardaran Bibi and others (2010 M LD 843).
16. Although respondents-defendants have alleged that gift mutations were attested by the revenue officials in accordance with law. The presumption of truth attached to the mutation is rebutable. There is no evidence available on record about offer and acceptance of the gift as mentioned above as well as delivery of possession of the land in dispute to the respondents- defendants. Mere attestation of mutations and subsequent any .record prepared on the basis of these mutations itself does not prove the delivery of possession.
17. Learned counsel for the respondents-defendants while arguing raised. objection that concurrent findings of fact cannot be interfered into by this Court in its revisional jurisdictions under section 115, C.P.C. No doubt in normal course concurrent findings of fact cannot be interfered but it is not an absolute rule. It is now settled that concurrent findings of facts arrived at by the courts below if are the result of misreading and non-reading of material piece of evidence which resulted in miscarriage of justice or while ignoring the law on the subject reached at a wrong conclusion these findings can be set aside while exercising revisional jurisdiction. For that purpose reliance can be seen in Muhammad Bakhsh v. Ellahi Bukhsh and others (2003 SCM R 286) wherein their Lordships of the Hon'ble Supreme Court of Pakistan observed:-- "Once the concurrent findings are recorded by the two Courts below i,e, the Civil Judge and the District Judge, the reversal thereof by the High Court does-not fall within the scope of revisional jurisdiction to be exercised by it under section 115, C.P.C. This is, however, not an absolute rule. The High Court is well empowered to reverse the findings of the Courts below if those are not supported by the record or the Courts below have misread the same resulting into serious miscarriage of justice."
18. Resultantly, while allowing this civil revision the judgment and decree dated 11-1-2001 passed by the learned Civil Judge, Rawalpindi upheld by the learned Additional District Judge, Rawalpindi vide judgment and decree dated 22-5-2001 are set aside. Issues Nos.3 and 4 are decided in favour of Mst. Zeenat Bibi, plaintiff while remaining issues are decided against the defendants and the suit filed by the plaintiff is decreed with costs throughout.