' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners have challenged the judgment and decree passed by the Addl: District Judge, Rahim Yar Khan dated 23-12-1997, whereby the appeal filed by the respondents-plaintiffs was accepted and the judgment and decree passed by the Civil Judge, Khanpur dated 20-12-1993 dismissing the suit, was set aside.
2. Briefly, the facts of the case are that Ahmad Bakhsh plaintiff and Ghous Bakhsh husband of Mst.
Ghulam Jannat the defendant, were real brothers. Ghous Bakhsh was issueless, who died in the year 1983 and mutation of inheritance No,1142 was attested on 23-8-1983. The 1/4th of his property was given to his widow Mst. Ghulam Jannat being issueless and 3/4th of his property was given to the plaintiff Ahmad Baldish.
3. Ahmad Bakhsh filed a suit for declaration on 15-10-1988 challenging therein the mutation of Gift No,905 attested on 1-6-1974 with regard to 100-kanals of land by Ghous Bakhsh in favour of Mst.
Ghulam Jannat, his wife. The suit was contested by Mst. Ghulam Jannat by filing written statement.
The trial court out of the divergent pleadings of the parties, framed the necessary issues and invited the parties to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence in favour of their claims. The trial court vide judgment and decree dated 20-12-1993 dismissed the suit. The plaintiff filed an appeal which was accepted vide judgment and 'decree dated 23-12-1997 by the Addl: District Judge, Rahim Yar Khan. Hence, this civil revision by the legal heirs of Mst. Ghulam Jannat as she died during the pendency of lis.
4. Learned counsel for the petitioners argued that both the courts below fell in error while recording the findings that the suit was within time; that the mutation of inheritance was got recorded by Ahmad Bakhsh plaintiff himself and after obtaining the property in inheritance by way of Mutation No,1142, transferred the land in favour of his sons through Mutation No,71 sanctioned on 11-11-1983, the copy of which is Exh.D-9. Further it is stated that even at the time of alienating the property in favour of his sons, the plaintiff was of the knowledge that how much prpperty he has received from the inheritance of his brother and what he has alienated in favour of his sons; that even this suit has been filed after five years of transferring the property in favour of his sons and after 14 years of attestation of the impugned mutation. Further states that the plaintiff can prove a case pleaded by him and no other case; that prior to that in the year. 1983 the plaintiff filed a suit for administration with regard to the legacy of said Ghous Bakhsh, which was dismissed on 3-7-1990; that the son of plaintiff Ghulam Mustafa filed a suit for specific performance against Mst. Ghulam Jannat on 1-3- 1987 which was ultimately dismissed. It has been further contended that the defendant-petitioner has fully proved the factum of gift and the findings of first appellate court that transfer of possession has not been proved by the defendant, are not only against the evidence but are against the law also.
5. On the other hand, learned counsel for respondents Nos.l to 5 supported the judgment and decree passed by the first appellate court and states that defendant has not proved the gift; that there are certain deviations in attestation of mutation from section 42 of the Land Revenue Act, 1967; that the defendant-petitioner was not only bound to prove the attestation of mutation but she was also bound to prove the factum of gift.
6. Learned counsel for respondents Nos.6 to 8 has supported the arguments of learned counsel for the petitioners and states that they are the formal respondents, so the revision be accepted.
7. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
8. The factum of gift is of the year 1974 and the donor Ghous Bakhsh who was husband of Mst.
Ghulam Jannat, died in the year 1983. There is no evidence on the file that Ghous Bakhsh ever claimed the suit property to be of his ownership after gift of the property in favour of his wife. With regard to the limitation, it is primary duty of the court to see the claim of a plaintiff that whether it is within limitation even without objection of the other party. The trial court is bound under the law, in accordance with section 3 of the Limitation Act (IX of 1908). In this case admittedly the impugned mutation was entered. On 5-3-1974. The statements were recorded on 6-3-1974 and it was attested on 1-6-1974 and after the attestation of mutation, it was incorporated in Jamabandi and since then she the donee, is recorded owner of the suit land. In this view of the matter, when Ghous Bakhsh died in the year, 1983 and his inheritance mutation was got, entered by Ahmad Bakhsh plaintiff and after the sanctioning of inheritance mutation, he (Ahmad Bakhsh) transferred the land received through inheritance in favour of his sons, clearly makes the case of plaintiff as barred by limitation. The filing of suit after 14 years of the attestation of mutation is clearly time barred.
9. So far as the objection of learned counsel for the respondents that possession has not been proved to be delivered to the donee is concerned. In my view, the objection of non-delivery of possession in a gift transaction is not available to a third person, as I have observed that the donor remained alive 9 years after the gift of suit land in favour of his wife. He never disputed the gift. The plaintiff is a third person. His rights were available in the property left by his brother Ghous Bakhsh and suit property was not left for inheritance by Ghous Bakhsh.
' Therefore, the plaintiff being third person cannot raise objection to the non-delivery of possession of suit land, transferred through gift.
10. Even otherwise, when a gift was made by a husband in favour of his wife under the Mohammadan Law, the possession of husband after the event of gift will be presumed that husband is in possession of the land for the donee. In accordance with Paragraph No,153 of Mohammadan Law by Mulla, if the husband even collects the rent etc, he will be presumed to be in possession of property gifted by him in favour of his wife. No doubt, non-delivery of possession in a case where the gift is challenged by a donor is relevant, but when a third person challenges the validity of case on the point of non delivery of possession, it is irrelevant. Furthermore, in this case when donor was a husband and donee being his wife, this objection is even not available. Even otherwise, donee has successfully proved the delivery of possession which is supported by the revenue record available on the file in shape of documentary evidence. Further, the filing of suit by the plaintiff for administration of the property left by his brother and the suit filed by his son for specific performance against the defendant Mst. Ghulam Jannat, are also available as evidence in favour of defendant-petitioner to negate the version of the plaintiff.
11. If there are any discrepancies by the revenue department and any violation 'of section 42 of the Land Revenue Act in attestation of mutation, that cannot be alleged to the donee. I have observed that the objection of the counsel for the respondents that there is no mention of Rappat Roznamcha Waqiati in this mutation, if it is correct that no Rappat was recorded by the Patwari, it is not a fatal defect when this mutation was entered by the Patwari and in Column No,14 of mutation, he has mentioned in detail the event of gift. The donee has successfully proved not only the mutation of gift but also the event of gift of alleged K land in her favour by her husband.
12. The other important point involved in this revision is that a party can prove a case pleaded by it and no case other than the pleadings can be advanced by a party. The plaintiff-respondent has not pleaded that case which he has tried, to establish through his evidence. The evidence cannot be allowed, if led on a point which has not been pleaded by a party but if led that just can be ignored. It is not the case of plaintiff that the donor was so aged and seriously ill to gift his property but in the evidence plaintiff has tried to improve his case on these premises. Therefore, this portion of evidence even led by the plaintiff is just ignorable.
13. The another important factor is that there is no issue of non-delivery of possession of the suit land by the donor in favour of donee.
' In this regard, light can be taken from the pronouncement of august Supreme Court of Pakistan reported as "PLD 1977 Supreme Court 144 (Muhammad Ismail v. Barkhurdar)" that when there is no issue with regard to non-delivery of possession, the court is not competent to record the findings about the non-delivery of possession. The august Supreme Court of Pakistan also held that presumption of truth is attached to the entries made under section 42 of the West Pakistan Land Revenue Act (XVII of 1967). The light can be taken from the judgment reported as "1992 SCM R 1832 (Hakim Khan v. Nazeer Ahmad Lughmani and 10 others)".
14. In this case, the period of limitation to challenge the gift started from the time when the mutation was attested and the same is six years 0 under Article 120 of the Limitation Act, 1908. In this regard "PLD 1994 Supreme Court 245 (Muhammad Ali and 25 others v. Hassan Muhammad and 6 others)" can be relied.
15. In the light of what has been discussed above, I accept this civil revision, set aside the judgment and decree passed by the first appellate court dated 23-12-1997 and dismiss the suit filed by the respondent-plaintiff with costs throughout.