IJAZ AHMAD, J.---Muhammad Raza son of Sheikh Mehmood was the owner of the land in question. Siraj Din, predecessor-in-interest of petitioners Nos. 1/A to 1/D was his brother, Mst.
Hussain Bibi, predecessor-in-interest. of petitioners Nos.2/A to 2/D, Mst. Umin-e-Kalsoom, petitioner No,3 and Zaib-un-Nisa predecessor-in-interest of respondents Nos.2/A to 2/G are his daughters.
Respondent No,1 is the son of Zaib-un-Nisa. Muhammad Raza, predecessor-in interest of the parties gifted the land in question, measuring 244-kanals, 3-marlas to Dr. Asif Zaman, respondent No,1 . Mutation No,1245 was sanctioned in his favour on 18-5-1986. Petitioner No,3 and the predecessors-in--interest of the petitioners Nos.1/A to 1/D and 2/A to 2/D instituted a suit for declaration and Permanent injunction and sought cancellation of Mutation No,1245 on the ground that said Mutation was illegal; that the gift was not valid and that the donor at the relevant time was suffering from Marz-ul-moat and was not mentally sound. The suit was resisted by the present respondents. In view of the divergent pleadings of the parties, Issues were framed and the parties led their evidence. Issue Nos. 1 to 5 were decided against the defendants/respondents. Issue No,6 regarding validity of the gift and, the mutation was decided in favour of the plaintiffs. The suit was decreed by the learned Civil Judge, Talagang. The mutation in question was cancelled. The appeal preferred, by the present respondents succeeded, the decree of the learned trial Court was set aside and the gift and the mutation in question were held valid.
2. It is contended by the learned counsel for the petitioners that although the onus to prove Issue No,6 was cast on the plaintiffs-petitioners yet law requires that once the factum of the gift is denied, the onus shifts on the donee to prove the validity of the gift, which the latter has failed to discharge. He places reliance on 1999 CLC 1505 titled Abdul Aziz v. Mst. - Pantay Bibi, 2000 SCMR 346 titled Abdul Rahim and another v. Mst. Jannatay Bibi and 13 others, 2001 SCMR 1156 titled Nasrullah Khan v. Rasul Bibi and 2002 SCMR 1938 titled Barkat Ali through Legal Heirs and others v.
Muhammad Ismail through Legal Heirs and others. It is further argued that the gift in question lacks the essentials of a valid gift. The proposal, acceptance and delivery of the possession have not been proved by the defendants/respondents. It is further argued that onus to prove the change of the possession rests on the donee. The proof has to be specific and mere recital of handing and taking over of the possession in the mutation does not suffice to prove the change of possession.
Reliance is placed on PLD 1979 Lahore 32 titled Monawar Jehan v. Muhammad Sarfraz, 1997 SCMR 1087 titled Abdul Wahab v. Aurangzeb and 2 others, 2002 SCMR 1938 titled Barkat Ali through Legal Heirs and others v. Muhammad Isma il through Legal Heirs and others, 2006 SCMR 1144 titled Abdul Ghafoor and others v. Mukhtar Ahinad Khan and others and 2001 SCMR 34 titled Azim Khan v. Malik Mobeen Khan and others. The learned counsel for the petitioners makes a reference to the statement of Sarfraz, DW-5. When subjected to cross-examination, he has admitted that the donor suffered from illness for one or two years. The learned counsel further argues that the mutation has not been sanctioned in accordance with law. There are seven Lumberdars in the village but none of them has come forward to identify the donor, at the time of sanctioning of the mutation that the mutation does not bear the signatures of the donor; that the revenue authorities who sanctioned the mutation have not been produced in evidence.
3. On the other hand, learned counsel appearing on behalf of the respondents argues that the mutation was sanctioned in Ajlas-e-Aam"; that Dr. Muhammad Nawaz who was a Councillor and had been Vice Chairman of the local Council identified the . donor and appeared as DW3. It is argued that the law, as embodied in section 42(7) of the Land Revenue Act, 1967 requires the identification of the vendor or the donee by two respectable persons preferably Lumberdar' or members of the Local Council concerned, thus, by identification of the donor by the DW-3 and DW-
4. the requirement of law has been fulfilled. He argues that the mutation needs not be signed by the vendor or the donor. Kanongo concerned, who appeared as DW-1, produced voluminous record pertaining to the mutations, none of them bore the signatures of the vendor or the donor; that an owner of a land has unfettered right to transfer the same in favour of any person and no illegality in the instant case has been committed; that the donor lived 2-1/2 years even after sanctioning of the mutation and died on 18- 11-1987. The petitioners-plaintiffs did not challenge the gift and mutation in his life time. It is argued that in every case mode and style of the possessions varies according to the circumstances of the case and the change of the possession stands proved in the instant case. The recital of the mutation in question proves that there was an offer, an acceptance and the change of the possession.
4. I have heard learned counsel for the parties and perused the record. There is no doubt that in the case of a valid gift, A there has to be an offer, an acceptance and the change of the possession.
The donee, who appeared as DW-2, has only stated that at the time of gift the donor had made a statement. He does not specifically refer to an offer made to him. There is not a single word to indicate that he accepted the gift and that the possession, in any manner, was handed over to him. The Revenue Officer, who allegedly sanctioned the mutation has not been produced as one of the witnesses, which is conspicuous enough to cast doubt on the nature of the alleged transaction.
The donor, after his death,: was to be succeeded by Siraj Din the son, Mst. Hussain Bibi, Mst. Umm- e-Kalsoom and Mst. Zaib-un-Nisa, his daughters. There are no circumstances to suggest the strained relations between the donor and his legal heirs and the extraordinary love and affection for the donee, a grandson of the donor. Thus, it seems unreasonable that during the subsistence of the legal heirs, the donor would have deprived them and bestowed whole of the fortune on the donee. In this view, I am augmented by the judgment cited as 2002 SCMR 1938 titled Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others. Although there is no specific mode for delivery of the possession and it may vary according to the circumstances of each case yet in the instant case, the donee has been unable to prove the change of the possession even symbolically. He has not even produced the Revenue Officer, who sanctioned the mutation in his favour, to establish the validity of the gift. Thus, he could not establish a valid gift in his favour. Reliance is placed on 2000 SCMR 346 titled Abdul Rahim and another v. Mst. Jannatay Bibi and 13 others. In the event of denial of the gift, the burden was cast on the donee to prove the validity of a gift. He has miserably failed to discharge this onus.
5. For what has been discussed above, I set aside the judgment dated 7-2-2002, passed by the learned Additional District Judge, Talagang and uphold the judgment dated 14-9-1991, passed by the learned Civil Judge, Talagang, District Chakwal. This petition stands accepted.