' ALI BAQAR NAJAFI, J.---Through this Revision Petition the petitioner challenges both the concurrent judgments and decrees dated 26-10-2004 passed by the learned Addl. District Judge, Chakwal and 1-7-2004 passed by the learned Civil Judge 1st Class Choa Shah District Chakwal, whereby the suit -' the petitioner was dismissed.
2. Brief facts giving rise to the filing of this revision petition are that the petitioner filed a suit for declaration of ownership and possession to the extent that gift Mutation No,4021 dated 18-12-1993 (Exh.D.7) was not at all made by her and as such the same was forged, fictitious and ineffective upon her rights with consequential relief of protection of possession. The property subject-matter of land measuring 56 Kanals, 16 Marlas fully described in the head note of the plaint was owned and possessed by the petitioner through her tenant and she being an illiterate, simple "Pardanashin" villager lady, was earlier married with Tahzeeb ul Hassan in the year 1967 but was deserted and ever since she was residing with her aged mother. The father of the petitioner had already died, who was a police employee, where after there was no male member in her family.
3. Since the pension of her father was not disbursed to her as well as her mother, therefore, the respondent, who is also her collateral, on the pretext to help them obtained her thumb-impressions on a stamp paper in her house. About three months before filing the suit she came to know that the impugned mutation (Exh.D.7) was prepared in his own name. It was further averred that she has not received an amount of Rs,2,60,000 in presence of the witnesses by making "Hiba-bil-Iwaz" and in alternate prayer if any gift is assumed the same has been revoked at her option. Written statement was filed and out of the divergent pleadings of the parties following issues were framed:--
(1) Whether the plaintiff is owner in possession of the suit-land? OPP.
(2) Whether the gift mutation pertaining to the suit-land bearing No,4021 attested on 18-2-1993 is an outcome of connivance between the defendant and revenue staff and is illegal, void and ineffective against the rights of the plaintiff? OPP
(3) Whether the suit is not properly valued for the purposes of court fee, if so, what is the correct valuation for the purpose? OP Party.
(4) Whether the plaintiff is entitled to the decree as prayed for? OPP
(5) Relief.
4. In support of her claim, the petitioner examined herself as P.W.1 and produced copy of Jamanbandi for the years 1992-1993 Exh.P.l and Exh.P.2, whereas the respondent examined Haji.
Muhammad Bashir DW-1, Muhammad Lehrasab Patwari, DW-2, Mehboob Alam Tehsildar DW-3, Muhammad Liaqat DW-4, Hadi Hussain Shah, DW-5, Muhammad Aslam, Patwari DW-6, Muhammad Ashraf. Patwari DW-7, Qazi Mehboob Alam, DW-8, Haji Muhammad Akhtar, DW-9 and the respondent-defendant himself appeared as DW-10. He also produced documents Exh.D.1 to Exh.D.10 in support of his claim. The learned trial Court while returning joint findings on issues No,1, 2 and 4 treating them interconnected, placed onus to prove upon the petitioner that the gift was not made, where affer the learned Civil Judge vide judgment dated 1-7-2004 dismissed the suit filed by the petitioner and appeal preferred by the petitioner also met the same fate vide judgment dated 26-10-2004 passed by the learned Addl. District Judge, Chakwal, hence this revision petition.
5. Learned counsel for the petitioner submits that the courts below have drawn erroneous presumption on facts contrary to the evidence on record by giving reference to inadmissible piece of evidence; that the impugned judgments are result of non-reading, misreading of the material on file; that onus to prove the existence of a valid gift was to be placed upon the respondent and not on the petitioner; that the said onus was not discharged by the respondent as he has failed to prove the ingredients of gift namely, declaration, acceptance of gift, transfer of possession and consideration; that the plea of "Hiba-bil-Iwaz" was just made in order to avoid pre-emption, which fact was even noted by the appellate court; that as the petitioner is a Pardanashin, illiterate and simple villager lady, the execution of document was not with her free will by understanding its contents; that the required independent evidence was lacking; that there are grave discrepancies in the statements of Muhammad Liaqat DW-4 and Hadi Hussain Shah, DW-5 the alleged witnesses of transaction, who denied the presence of the petitioner at the relevant time; that the original mutation was admittedly not on record as observed in, Para-23 of the judgment of appellate court, which fact cannot be ignored especially without explaining any, reason; that the transaction is not even "Hiba-bil-Iwaz" which lacks its pre-requisite. Lastly, submits that the findings of two courts below are not sacrosanct, which can be interfered with on the basis of illegality and material irregularity resulting into grave miscarriage of justice. Place reliance on Malik MUHAMMAD KHAQAN v. TRUSTEES OF THE PORT OF KARACHI (KPT) and another (2008 SCMR 428), ABDUL SAT'TAR v.
Mst.ANAR BIBI and others (PLD 2007 SC 609), ALLAH DIT7'A and 5 others v. Mst.RASOOLAN BIBI through Legal Heirs and 6 others (PLD 2006 Lahore 693), Syed SHARIF UL HASSAN through L.Rs, v. Hafiz MUHAMMAD AMIN and others (2012 SCMR 1258), Mst.RASHEEDA BIBI and others v. MUKHTAR AHMAD and others (2008 SCMR 1384), FATEH KHAN, and others v. SURRIYA BEGUM (2006 SCMR 930), MUHAMMAD NAZIR V. KHURSHID BEGUM (2005 SCMR 941), NOOR MUHAMMAD and others v. Mst.
AZMATE-BIBI (2012 SCMR 1373), Mst. BHAGNI v. MANZUR HUSSAIN SHAH (PLD 1957 (Writ Petition)
LAHORE 574) and D.F. Mulla's Principles of Mahomedan Law at page 168 and prays for setting aside of two judgments passed by the courts below.
6. Conversely, learned counsel for the respondent submits that revision petition is filed against the concurrent findings of fact, which cannot be concurrent findings of fact, which cannot be upset in exercise of section 115, C.P.C. By this court as there is neither any illegality nor irregularity which has been pointed out; that in para-3 of the plaint the petitioner herself has admitted to have thumb marked but narrated different unbelievable story that the documentations were required for the payment of pension of her late father for which such affixation of her thumb impression was required; that in para. 22, 27, 28 and 29 of the judgment of appellate court the possession of the respondent as a tenant has been admitted by the petitioner; that the respondent has produced cogent evident to prove his case believed as such by the courts below and prays for dismissal of the revision petition.
7. I have 'heard the learned counsel for the parties and perused the available record.
8. A perusal of Exh.D.1 reveals that no description of any property has been mentioned for which amount of Rs,2,60,000 was paid to the petitioner on 2-2-1993. Both marginal witnesses/ DW-4 Muhammad Liaqat, and Hadi Hassan Shah, DW-5 had admitted that the transaction had not taken place in their presence and that the said receipt was already written. They do not say anything as to whether the petitioner was explained the nature and contents regarding the transaction in question. The respondent appeared as DW-10, who himself has stated to have paid the amount of Rs,2,60,000 to the petitioner in presence of Hadi Hussain Shah DW-5, Muhammad Liaqat/DW-4 and Syed A'sghar Shah but they have not corroborated his statement. He has also admitted that the petitioner appeared in the court by observing veil. He has also stated, that the petitioner herself came to his house in November, 1992 in order to sell the suit land as there is no male member in the family of the petitioner. However, none of the witnesses have explained anywhere that at the time when the petitioner affixed her thumb impression upon the receipt, she was explained about the contents of 'Exh.D.1 with regard to its nature and consequence which was necessary and mandatory requirement of law. DW.2 did not remain posted as Patwari at the relevant time, therefore his statement is not relevant. DW-3 is admitted not to have possessed record of pert sarkar which he was required to possess. DW-7 admitted that the said mutation in question was presented by the respondent himself. He has also admitted that he did not know whether the petitioner was present at the given time. DW-8, the Tehsildar, also admitted not to have possessed the pert sarkar and DW-9 has admitted that his signature is not affixed on pert sarkar.
9. On the other hand, the petitioner appeared as P. W.1 who has explained in her cross examination that she being an illiterate pardanashin and simple villager lady got her thumb impression affixed on the false pretext by the respondent and that she was not explained as to the real purpose behind. She also stated that she never ever appeared before the Revenue Officer for sanctioning of mutation in question.
10. Under the law if the gift is denied by the lady the onus to prove the same shifts upon those who claim such gift, which fact is required to be proved by maintaining the quality of evidence, including the requirement that the said lady should have been explained the nature of such transaction in detail. Reliance can be placed on MUHAMMAD v. Mst. REHMON through Mst. SHARIFAN BIBI (1998 SCMR 1354). In all the transactions in which: the donor is a pardanashin lady though not observing parda heavy onus lies upon the donee to show that the gift was made without exerting influence. The transaction with pardanashin lady has four pre-requisite namely, the proper advice before execution of the document, explaining the contents of documents, conscious mental act and lastly the entire transaction was to be free from any shadow of doubt or suspicion. Such requirements of law have not been fulfilled in the instant case. The petitioner was not even identified by a person who could advise or protect her interest. Reliance can be placed on Mst.RASHEEDA BIBI and others v. MUKHTAR AHMAD and others (2008 SCMR 1384) and Syed SHARIF UL HASSAN Legal Heirs Muhammad Taqi Khan and through L.Rs, v. Hafiz MUHAMMAD AMIN others v.
MURAD SAKINA (2004 SCMR and others (2012 SCMR 1258).
11. Reverting to the question of mutation suffice it to say that it is not a deed of title and is merely indicative of some previous oral sale between the parties. When challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original, transaction which he is required to fall back upon. In the instant case the original pert sarkar was not produced, the revenue officials have not identified the petitioner. The mutation was not sanctioned in open assembly by the Revenue Officer. Reliance, therefore, can be placed on FIDA HUSSAIN through Legal Heirs Muhammad Taqi Khan and others v. MURAD SAKINA (2004 SCMR 1043).
12. A "Hiba-bil-Iwaz" is sale in reality, having two pre-requisite namely, payment of consideration and, bona fide intention of the donor to divest the property to donee. I am afraid, they are missing from the record.
13. As far as the proof of requirement of gift is concerned, suffice it to say that neither the declaration nor acceptance, transfer of possession for consideration on the exercise of free will is visible from the record. Departing the possession of property requires solid evidence and mutation simplicitor is not enough.
14. As to the concurrent judgments which can always be interfered with if the same are contrary to law for the reason that they are not sacrosanct. Erroneous E conclusion if based on misreading and non-reading of documentary as well as oral evidence and wrong application of law is always a ground to interfere with. Reliance can be placed on FIDA HUSSAIN through Legal Heirs Muhammad Taqi Khan and others v. MURAD SAKINA (2004 SCMR 1043).
15. For what has been discussed above, this civil revision is allowed, the impugned concurrent judgments passed by the courts below are set aside, and consequently the suit of the petitioner- plaintiff is hereby decreed.