' CH. SHAHID SAEED, J.---Through this civil revision, the petitioner assails the judgment and decree dated 6-7-2001 passed by learned Additional District Judge, Kamalia who dismissed the appeal of the petitioner and upheld the judgment and decree dated 27-6-2000 passed by learned trial court whereby the suit of the petitioner was dismissed.
2. The precise facts of the case are that the petitioner filed a suit for declaration with possession regarding agricultural land, fully described in para 1 of the plaint, alleging therein that the 'petitioner is an illiterate village lady, respondents Nos. 1 to 3 are her stepbrothers while respondent No.4 is son of her paternal uncle. On the death of her father, the suit property fell in the share of the petitioner who after her marriage and settlement in Gujranwala handed over the property to the respondents for cultivation and the respondent being tenants in her land have been paying share of produce to her but just four months of the institution of the suit when some dispute arose between the parties, the petitioner on contacting Patwari concerned came to know that the respondents had fraudulently got mutated her land in their favour on the basis of oral hiba vide gift Mutation No. 2659, dated 25-2-1964. The petitioner averred that she had never gifted away her property to the respondents, the said mutation is result of fraud, misrepresentation and collusiveness, therefore, the same be declared null and void, the petitioner-plaintiff be declared exclusive owner of the land and possession of the same be also restored to her.
3. The respondents vigorously controverted the petitioner's suit mainly on the grounds that the suit is barred by time; that the petitioner has no cause of action; that she has approached the court with mala fide; that the disputed mutation was sanctioned under identification of witnesses, the proceedings were conducted on 25-2-1964, the petitioner has herself appeared before the Tehsildar revenue and with her consent, the possession of the suit property was handed over to the respondents in result of gift proceedings and since then, they are not only in possession of the suit property but also all the subsequent revenue entries are in their favour.
4. Out of divergent pleaelings of the parties, the learned trial court framed issues, recorded oral as well as documentary evidence adduced by the parties and proceeded to dismiss the suit of the petitioner vide judgment and decree dated 27-6-2000. The appeal preferred thereagainst also met with the same fate vide judgment and decree dated 6-7-2001 passed by learned first appellate court. Hence this civil revision.
5. Learned counsel for the petitioner inter alia contends that the petitioner is an illiterate village woman, who after her marriage is settled in Gujranwala while the suit property is situated in Tehsil Kamalia, District Toba Tek Singh. Respondents in order to usurp the land of the petitioner had fraudulently arranged Mutation No.2659, dated 25-2-1964 through misrepresentation and collusiveness while the petitioner has never gifted away her property to them. He asserts that the learned courts below have failed to properly appreciate the evidence adduced by the parties and without applying judicious mind, they have passed, the impugned judgments and decrees which are against law and facts. Therefore, the civil revision in hand be allowed, the impugned judgments and decrees be set aside and the suit of the petitioner be decreed as prayed for.
6. Conversely, learned counsel for the respondents vehemently opposes this civil revision and fully supports the impugned judgments and decrees. His main contention is that the petitioner has herself appeared before the revenue authorities at the time of sanctioning of the disputed gift mutation and with her consent, the land along with possession was transferred in favour of the respondents, therefore, no fraud, misrepresentation or collusiveness was committed by the respondents. He prays that the civil revision be dismissed.
7. I have heard the arguments advanced by learned counsel for the parties and also perused the record with their able assistance.
8. The record shows that the petitioner's father namely Dulla died in India and her mother Mst.
Jantay married with Babu, brother of Dulla. Respondents Nos.1 to 3 were born out of this wedlock.
Respondent No.4 is son of Khairo, brother of Dulla. At the time of partition, the petitioner was minor who was brought up by Babu. Later on, she was married in Dogranwala Malian, District Gujranwala.
9. Admittedly, the land in dispute was allotted to the petitioner against land abandoned in India and from very beginning of the allotment, the possession of the same remained with the respondents. Even after marriage of the petitioner, the possession was not disturbed and they had been cultivating and paying all the dues regarding the land to the concerned authorities. It is also not denied that the respondents had been paying the share of produce to the petitioner. The dispute regarding the land, however, arose between the parties when about four months before the institution of the suit, the petitioner approached the Halqa Patwari who informed her that her land had already been mutated in favour of the respondents about 32 years ago vide Mutation No.2659, dated 25-2-1964. The witnesses produced by both the parties support their respective side.
10. Learned counsel for the respondents has stressed more on the point that Babu was step-father of the petitioner, real father of respondents No.1 and uncle of respondent No.4. Being natural guardian of respondents, who were minor at that time and father of the petitioner, Babu made report that the petitioner wanted to gift her land to her brothers which was duly mentioned in the revenue record. He further contends that even at the time of sanctioning of the mutation on 25-2- 1964, the petitioner was duly present which is evident from the mutation in dispute but later on the instigation of her brought up sons, she had backed out from her words. He avers that the mutation dated 25-2-1964 is more than 47 years old and according to settled principles of law, the documents having age more than of 30 years are of much evidentiary value and cannot be set aside.
11. Undisputedly, Babu is step-father of the petitioner who brought up her after his marriage with Mst. Jantay Bibi, real mother of the petitioner. The land was allotted to the petitioner against her claim of land abandoned in India. So, she became owner of the land measuring 15 kanals, 1 marla on 1-7-1952. Later on, she was married and went to District Gujranwala. The respondents continued the care of the land owned by the petitioner and remained in possession of the same. They also paid the revenue dues to the concerned authorities as the petitioner does not assert that she has ever paid the revenue dues.
12. On 22-2-1964, Babu made a report to the patwari which is duly mentioned in the mutation that the petitioner wanted to gift her land to respondents No.1 to 4, out of whom, respondents Nos.1 to 3 are real sons of Babu and on 25-2-1964, the mutation in dispute is sanctioned wherein the presence of the petitioner is duly marked. However, the petitioner vigorously denies that she has ever appeared before any revenue authority or gifted away her land to anyone else. In the circumstances, the onus to prove the disputed mutation was wholly on the respondents which they have tried to discharge through the DWs who support the respondents' version.
13. The revenue Patwari appeared as DW-6 before the trial court and produced register of Mutations Nos.2615 to 2767 for the year 1964-64 along with Jamabandi, Khasra Girdawari and Roznamacha Waqiati. His statement is of much significance. He states that on 25-2-1964, Rapat No.316 was entered wherein it is written that no event worthy to be recorded in the revenue Roznamcha had happened in the area. Neither any other report in Roznamcha Waqiati regarding disputed transaction has been brought on record. The record also does not speak that any such report was got entered by the petitioner herself on any other date. The report made by step-father of the petitioner in favour of his real sons is neither trustworthy nor fulfil the requirements of law as the beneficiaries of the mutation are his real sons. The presence of the petitioner marked in the mutation might be result of misrepresentation and impersonation as the petitioner has denied his presence before any revenue authorities. In order to deceive the petitioner that she is still owner of the land, the respondents have also been supplying her share of the produce. There is no proof on the record that the petitioner has ever delivered the possession of the disputed land to the respondents in result of gift mutation which is essential ingredient of the gift. The record also does not speak about the offer made by the petitioner or acceptance of the same, if any made by the petitioner, by respondents Nos.1 to 4. The petitioner has also not put her signature/ thumb impressions on any document including the mutation in dispute showing her willingness for gifting her property to the respondents. In this view of the matter, it becomes crystal clear that Babu in order to usurp the land of the petitioner, who was her step-daughter and to give the same to his real sons have got mutated the land in dispute in favour of the respondents through fraud, misrepresentation and impersonation. Though sanctity is attached to the documents having age of 30 years or more, but in cases where fraud has been committed, neither the documents will hold sanctity nor limitation will come in the way of justice.
14. A mutation though holds evidentiary value but it does not create any title in favour of any person until and unless it is proved through cogent evidence. According to statement of Patwari and revenue record, there is no report in the Roznamcha Waqiati, as such, the respondents cannot derive any benefit from the old age Of the mutation as per Article 100 of the Qanun-eShahadat Order, 1984 when the fraud is apparent on the face of the record.
15. There is a plethora of judgments passed by superior courts that when a transaction is denied by an illiterate pardanasheen lady, the onus to prove the same lies with the beneficiaries of such transaction. The petitioner is admittedly an illiterate pardanasheen village woman, as such, she is not supposed to have understanding of intricate procedure of sanetioning of revenue record. In this case, the petitioner being an illiterate lady has denied the gift mutation in dispute, so the respondents are required to prove the same beyond any shadow of doubt. Since the petitioner falls within the definition of illiterate parda nasheen lady, she was required some independent advice regarding transfer of her immovable property to anyone else. As the petitioner had contracted marriage much before the sanctioning of the disputed mutation, the respondents being the beneficiaries were essentially required to prove the presence of her husband or some independent person reliable to her at the time of the gift to prove that she had consulted with some trustworthy person before gifting her property to the respondents which is totally missing in this case. The alleged presence of her step father or respondents is neither sufficient nor fulfils the requirements of law as they themselves are beneficiaries of the transaction in dispute.
16. Further, whenever transaction like gifting of immovable property etc. Takes place, it is contended that it was due to natural love and affection. But this natural love is always one-sided as only female abandons her right in favour of male but it does not happen in reverse and the male for one reason or the other tries to grab whatever is owned by the female. This type of flow being one sided is apparently unnatural. Much before sanctioning of the mutation, the petitioner had contracted marriage and there were her own children, though minor at that time, who have now grown up. So, in the presence of her own children, the petitioner cannot be expected to leave her right in the property in favour of her step-brothers. Even if it is supposed that the petitioner through her step-father had gifted away her property in favour of her step-brothers, presumption would be that it was due to social constraints, coercion and not due to affection or natural love.
17. In addition, spending amount on nourishing or marriages etc. Of children and claiming their property 'in lieu thereof is entirely against the injunctions of Islam. Learned courts below have failed to look into this aspect of the matter and have committed illegality and misreading of evidence.
Furthermore, concurrent findings of law and facts are not immune from interference by this Court if they contain some illegality or misreading of facts.
18. As a sequel of above discussion, this civil revision is allowed, the impugned judgments and decrees passed by learned courts below are set aside and the suit of the petitioner is decreed as prayed for.
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