' SYED SAJJAD HASSAN SHAH, J.--- By way of instant petition, the petitioner Mst. Niaz Mana has challenged the judgment and decree dated 13-3-2006 passed by learned Additional District Judge-I, Tank whereby the appeal filed against the judgment and decree dated 21-9-2005 of learned Senior Civil Judge, Tank was dismissed.
2. Briefly stated the facts are that petitioner- plaintiff filed a suit against respondent No,1-defendant seeking cancellation of gift Mutation No,2355 dated 31-12-1988 attested in favour of Lady Doctor Shamim Ara, respondent No,1-defendant and subsequent Mutation No,2398 dated 29-2-1989 with respect to the property fully detailed in the heading of the plaint on the ground that the mutations are the result of fraud, collusion, illegal and void. She also prayed for perpetual injunction.
3. The suit was contested by respondent No,1-defendant by filing her written statement wherein she refuted the allegations of the plaint. The learned trial Court framed issues arising out of divergent pleas of the parties. The parties produced their respective evidence as they wished to adduce.
After hearing the arguments of learned counsel for the parties, the learned trial Court dismissed the suit of petitioner-plaintiff vide judgment and decree dated 21-9-2005. Aggrieved from the same, the petitioner-plaintiff filed appeal which was also dismissed by learned Additional District Judge-I, Tank vide impugned judgment and decree dated 13-3-2006. Hence, the instant revision petition by the petitioner-plaintiff against the concurrent findings of the Courts below.
4. The learned counsel for the petitioner-plaintiff mainly contended that Amir Badshah son of Umar Khan, The father of the parties, was an old, ailing, feeble person and patient of paralysis and had become bed ridden and abnormal due to paralysis, thus, due to fiduciary relation, the respondents No,1-defendant with the collusion of the revenue staff, got appointed a local commission for recording his statement on gift Mutation No,2355 which was secretly recorded and attested in favour of respondent No,1-defendant and subsequently, another Mutation No,2398 dated 29-2- 1989 was attested. The petitioner-plaintiff was unaware of entire proceedings of attestation of gift mutation and was apprised about the said gift after the death of said Amir Badshah, who died on 14-5-1989. He further argued that other heirs of Amir Badshah deceased are also legally entitled in the inheritance of Amir Badshah, therefore, they were also impleaded. He further contended that the entire proceedings carried out for attestation of gift mutation are fake and fictitious and the respondent No,1-defendant cannot claim any ownership on account of illegal and baseless transaction of gift. He contended that the necessary ingredients of gift have noe been fulfilled in the instant case. The learned counsel placed reliance on 2000 CLC 399, 2003 SCM R 286 and PLD 2011 Pesh.
208.
5. As against that, the learned counsel for respondent No,1- defendant supported the judgments and decrees passed by the learned Courts below and contended that the mutations were attested in accordance with the provisions of law and in presence of Amir Badshah, the predecessor of the parties. He being the owner of the property never +challenged these mutations in his life time, rather stood as witness to the different mutations of alienation of portion of the disputed property by respondent No,1-defendant. He pointed out that the suit of the petitioner-plaintiff is time-barred.
He further contended that previously a suit was filed by Saadullah Khan on 23-6-1989 in which the present petitioner-plaintiff was also impleaded as pro forma defendant but that suit was subsequently withdrawn. He maintained that the gift mutation was attested in accordance with the principles laid down under the law which, cannot be challenged by the petitioner-plaintiff.
Moreover, the respondent No,1-defendant is in possession of the suit property. In support of his arguments, the learned counsel for respondent No,1- defendant relied on PLD 1997 SC 28 and 2006 CLC 819.
6. I gave my thoughtful consideration to the submissions of learned counsel for the parties and carefully examined the record.
7. A perusal of the record reveals that Amir Badshah, predecessor of the parties, alienated the suit property through gift mutation in favour of his daughter i,e, respondent No,10-defendant. In this respect, Peer Khan Qanungo (retired) was appointed as local commission who recorded the statement of the donor in presence of the witnesses on 18-12-1985 and he also testified that Amir Badshah was duly identified by two witnesses who signed the mutation in his presence. He further stated that Amir Badshah was quite healthy person, was pot suffering from any disease and was in full conscious and the mutation was attested at his instance. In lieu of her services, the gift was made in favour of respondent No,1-defendant. He further stated that he was not suffering from paralysis and after recording his statement, he signed the same and the identifier and witnesses also signed, nevertheless he was known to the witness. Farhana Jabeen Advocate was examined as (DW2) who stated that late Amir Badshah was known to her since 1990 and they were on visiting terms. He was healthy and not suffering from any mental disease. Neither he was aged nor suffering from paralysis. She also refuted that he was on death bed as he used to come even in Courts. She stated that she met him a week prior to his death. Even by that time, he was mentally and physically sound. In support of gift, respondent No,1-defendant also appeared as D.W.-3. She also narrated the facts in detail and categorically stated that her father offered gift to her, she accepted the same and the tenant cultivating the land was called by her father and directed that she would be the landlady, thus, the possession of the suit property has also been delivered to her.
In cross-examination, the version of the respondent No,1-defendant has not been shattered and she remained firm to her statement. However, she further strengthened her case during the course of cross-examination. Mumtaz Khan, attorney of rest of respondents-defendants acknowledged the attestation of gift mutation. He also testified that at the time of attestation of gift mutation, late Amir Badshah was residing with her daughter, respondent No,1- defendant. The evidence led by the petitioner-plaintiff also prose the factum of gift on behalf of Amir Badshah in favour of respondent No,1- defendant. During the course of evidence, mutation relating to the gift was produced and admitted in evidence as Exh.P.W.3/1 and rest of the mutations have also been admitted in evidence in the statement of this witness. The conduct of the petitioner-plaintiff shows that she also supported those documents because no objection at any stage of the proceedings in the suit was raised on behalf of the petitioner-plaintiff that the gift mutation is forged and fictitious document.
Besides official witnesses produced by the petitioner-plaintiff, one Akram Khan was examined as P.W.-4 but the evidentiary value of his statement can be determined in view of his deposition that:- {{URDU TEXT}} ' This statement of the witness is neither truthful nor he was aware of the facts of the case. Lastly, Sher Ahmad, the attorney was examined as P.W.-5. His statement is not helpful to the petitioner- plaintiff, as his version is hearsay. Besides, no evidence is available on the record to the effect that Amir Badshah, predecessor of the parties, was ailing, aged and unable to perform his everyday pursuits, suffering from paralysis and his mental capacity had also been affected, thus, the gift transaction is not of a conscious mind. It is in the evidence that he was treated by `Tabeeb' also got treated spiritually. However, none of them has been produced in support of the plea of the petitioner-plaintiff. In this respect, reliance is placed on the case titled Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others (PLD 1977 SC 28) wherein it has been held that:-- "The first is essentially a question of fact and the best evidence could be that of a medical attendant who treated the deceased at the relevant time. It is noteworthy that in various cases cited at the Bar some doctor or Hakim had appeared to testify to the condition of the patient at or about the time the impugned instrument was executed. Evidence of laymen particularly of relatives may be relevant. But it cannot be conclusive particularly when it is partisan and exaggerated. In the instant case, it was admitted by Ghulam Fatima plaintiff that though Rajwali remained under the treatment of a Hakim at Bhera but he was not examined. I consider this is a serious drawback in the plaintiff's case. The burden of proof of issue relating to marz-ul-maut lay heavily on the plaintiff and the oral evidence did not inspire the confidence of the trial Judge. "
8. The burden of proving material issues was lying on the shoulder of the petitioner-plaintiff but it has not been discharged by producing convincing, cogent and reliable evidence inasmuch as the petitioner- plaintiff failed to bring on record even the available evidence supporting her version regarding fraud etc as alleged in the plaint. The particulars, of fraud have also not been given in the plaint nor proved on record by the petitioner-plaintiff as required under Order VI, Rule 4, C.P.C.
Because if the fraud is alleged, it must be particularized with date, time and by all necessary details.
9. Amir Badshah deceased managed the suit property on behalf of respondent No,1-defendant and as stated hereinabove, she has also made some alienation from the suit property. From the statement of Naseer Khan (D.W.-1), it appears that he was appointed as attorney on behalf of respondent No,1-defendant who produced Exh.D.W.1/1, Exh.D.W.1/2 and record as Exh.D.W.1/3 for the partition of the property for which the application was made on 8-11-1994 and the application produced as Exh.D.W.1/4. The witness testified that he had acquaintance with Amir Badshah, father of respondent No,1- defendant and he was healthy man.
10. The gift mutation produced on behalf of the petitioner-plaintiff has not been questioned, therefore, it is deemed to be proved and requires no further proof. However, the gift has been proved by overwhelming evidence and also that the same was acknowledged by the donor in favour of the donee who died after 10 years of execution of gift. Had there been any fraud committed in attestation of gift mutation or completion of gift transition, he had every right to challenge the same. In this connection, reliance is placed on a case titled Abdul Majeed v. Abdur Rashid and .3 others (2006 CLC 819) Lahore wherein it has been held that: "About the issue of gift, suffice it to say that the argument of the appellant's counsel is not supported by evidence that the father was on death bed, when he had executed the gift deed in favour of his two other sons, which is a registered document. There is also no material that the deceased at the time of making the gift was of indisposed mind. Simply for the reason, that he died two days after the execution of the deed, by itself would not be a case of invalidating the gift for the reason of Marz-ul-Maut.
' When the predecessor has not challenged a document, thus, it cannot be questioned by the successors. Reliance placed on PLD 1984 Peshawar 278.
11. For the reasons mentioned above, I am of the view that the judgments and decrees of the Courts below are quite in accordance with law and do not suffer from any illegality or material irregularity warranting interference by this Court in exercise of revisional jurisdiction. The revision petition being without substance is hereby dismissed with no order as to costs.