' AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioners have challenged the judgment and decree dated 25-4-1994 passed by learned Addl: District Judge, Sahiwal, whereby the appeal filed by the petitioners was dismissed and the appeal filed by the respondents-plaintiffs was accepted, by way of which, suit for declaration filed by the respondents-plaintiffs was fully decreed. The petitioners have also challenged the judgment and decree dated 14-1-1991 passed by learned Civil Judge 1st Class, Chichawatni, whereby the suit filed by the respondent-plaintiffs was partially decreed.
2 . This civil revision was accepted by this court vide judgment dated 6-12-2010 and the case was remanded to learned trial court with the direction to decide the suit afresh after hearing learned counsel for the parties. This remand order was challenged before the august Supreme Court of Pakistan through Civil Petition No,51 of 2011, which was converted into appeal and allowed on 28-11- 2011 and the 'remand order/judgment passed by this court was set aside. This court has been directed to decide. The civil revision on the basis of evidence already recorded.
3. The facts as leading to this case are that. Plaintiff, Muhammad Akram, predecessor of respondents on 8-3-1983 filed a suit for declaration praying therein that he is co-sharer to the extent of 234-kanals 15-marlas in the property mentioned in Ziman No,1 of the plaint. The case of plaintiff as pleaded by him was that suit land fully described in Para 1 of the plaint measuring 400 kanals 2 marlas was allotted to the father of plaintiff, namely Ghulam Muhammad son of Qaim Deen in lieu of "Abadkari" Scheme under the Colonization of Government Lands (Punjab) Act (V of 1912). The plaintiff pleaded that 133-kanals 16-marlas is disputed land. The case of plaintiff is that at the time of death of his father on 25-1-1925 he was entitled to inherit the whole of the property but as the plaintiff was minor at that time, therefore 1/3rd share was given to his mother, Mst. Bahisht Bibi because she was to bear the expenses upon marriage of sisters of plaintiff, one of whom was blind also. In Para 4 of the plaint, plaintiff has stated that Mst. Bahisht Bibi, his mother under the family 'settlement trasferred land in the name of plaintiff and he became owner of land measuring 234-kanals 15-marlas. The plaintiff has also asserted the mutation of inheritance of Mst. Bahisht Bibi, which was sanctioned after her death on 31-1-1960. He has further challenged in this suit the transfer of 1/2 share in 77-kanals 1-marla, the property in the name of Mst. Mumtaz Begum, his wife at the time of her death in favour of her brother and sisters. The plaintiff has challenged the gift of suit property allegedly on the basis of fraud and stated that he has never gifted the property.It will be important to mention here that in original plaint, the legal heirs of Inam Ullah Khan were not made party, who is the grandson of Ghulam Muhammad in whose favour 1/3rd of the property left by Ghulam Muhammad was mutated. Afterwards they were also impleaded as party as defendants in the suit.
4. Filing written statement the suit was contested. Out of the divergent pleadings of the parties, learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their contentions. After the close of trial, vide judgment and decree dated 14-1-1991 the trial court decreed the suit to the extent of matter in issue regarding Mutation No,76 dated 14-12-1962 of gift in favour of wife of plaintiff and to the extent of Mutation No,25 attested on 22-5-1925 and Mutation No,49 dated 31-6-1960 suit was dismissed. Both the parties preferred appeals before the first appellate court, whereby vide judgment and decree dated 25-4-1994 the appeal filed by the respondent/plaintiff, Muhammad Akram was accepted and suit was fully decreed, whereas the appeal filed by the petitioners- defendants was dismissed. Hence, this civil revision, which was earlier accepted by this court vide judgment dated 6-12-2010 and case was remanded to learned trial court for decision afresh. The remand order was challenged before the august Supreme Court, whereby through the order dated 28-11-2011, passed in Civil Petition No,51 of 2011 converting it into appeal the same was allowed and order of this court was set aside. This court has been directed to decide the civil revision afresh on the basis of evidence already recorded.
5. Learned counsel for the petitioners-defendants, states that the plaintiff has claimed allotment of land in favour of his father under Abadkari' scheme. Admittedly the father of plaintiff died on 25-1- 1925. Learned counsel states that the stand of plaintiff is contradictory one, as in para 4 of the plaint he has claimed that property transferred in favour of his mother through the inheritance mutation of father bearing No,25 dated 22-5-1925, the same was transferred in his favour by his mother after performing her duties and obligations i,e, getting the daughters of deceased father married, therefore this contention of plaintiff in Para 4 contradicts his claim of inheritance of whole of the land. Further states that nowhere plaintiff has asserted that how he came to know about the sanction of mutation at the time of filing of suit; that plaintiff when appeared as P.W.2 has admitted that Mutation No,25 was sanctioned in his favour, in favour of his mother and in favour of his nephew Inam Ullah Khan, 1/3rd each. He also admitted that in the year 1936 the Sanad' for rights of `Dakheekari' was issued in favour of above mentioned three persons. He also admitted that he was pursuing all the proceedings. He admitted that proprietary rights were conferred upon the plaintiff, his nephew and his mother and also stated that he has got sanctioned the mutation of conferment of proprietary rights. He has admitted that at that time it was in his knowledge that 1/3rd property is in the name of his mother, who died in the year 1959. He admitted, that mutation of inheritance of his mother was in his knowledge and it was also in his knowledge that the same has been transferred in his favour and in favour of his sisters. Learned counsel further states that the custom asserted by the plaintiff has not been proved by him. He has referred Exh.P-13, Mutation No,10 sanctioned on 17-6-1923 whereby the State conferred the property upon Jamadar Rehmat Khan under the Army grant scheme. Exh.P-14 is Mutation No, 19 sanctioned on 6-6-1924, the father of plaintiff got the suit property in exchange from said Rehmat Khan. Exh.P-4 is Mutation No,25 sanctioned on 22-5-1925 inheritance of Ghulam Muhammad, through this mutation the property has been transferred 1/3rd in favour of grandson of the propositus, 1/3rd in favour of plaintiff and 1/3rd in favour of widow of the deceased. Learned counsel has even referred Exh.P-7, Mutation No,55 sanctioned on 2-7-1930 wherein the name of plaintiff was corrected, as previously in Mutation No,25 his name was written as Muhammad Akbar Khan and his name has been corrected as Muhammad Akram Khan. Exh.P-15 is Mutation No,59 sanctioned on 8-2-1937 regarding the conferment of rights of 'Dakheekari' which is according to learned counsel for the petitioners in accordance with section 8 of the Tenancy Act. In this mutation also the rights have been conferred' in equal share upon the plaintiff as son of deceased, Inam Ullah Khan as grandson and Mst.
Bahisht Bibi as widow of deceased. Exh.P-17 is Mutation No,249 sanctioned on 24-2-1950 on the basis of sale of suit land by the Government. Mutation No,19 was produced as Exh.P-G sanctioned on 31-1-1960, which relates to the inheritance of Mst. Bahisht Bibi. Learned counsel for the petitioners states that the suit has been filed in the year 1983, which was clearly time barred and further that through Mutation No, 76 sanctioned on 14-12-1962 plaintiff himself gifted 77-kanals 1-marla land in favour of his wife, Mst. Mumtaz Begum. Learned counsel states that actually at the time of death in the year, 1982 when inheritance mutation of Mst. Mumtaz Begum bearing No,405 was sanctioned on 19-1-1982, the plaintiff started the controversy and prior to that there was absolutely no controversy and the matter was never agitated by the plaintiff. It has been further contended by learned counsel that plaintiff has not proved Ghulam Muhammad, propositus of the parties as an original tenant, therefore the claim of plaintiff that it is a case of section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) is incorrect. While referring "2010 SCMR 760 (Mst. Fateh Bibi and others v. Mst. Fatima Bibi and others)" learned counsel states that the suit was clearly time barred.
6. On the other hand, learned counsel for the respondents Nos.1-A and 1-B argues that the case pleaded by the plaintiff was factually admitted by both the courts below, therefore there are concurrent findings of facts and law in favour of the respondent-plaintiff, Muhammad Akram; that only on the basis of some technicalities and with regard to the limitation learned trial court has not fully decreed the suit. Even while exercising jurisdiction under section 115 of C.P.C. This court ordinarily does not interfere with the concurrent findings recorded by two courts below, therefore learned counsel has supported the findings of two courts below and prayed for dismissal of instant civil revision. It has been further argued that as the plaintiff is in possession of the suit land, therefore limitation was not a bar for filing the suit in the year 1981. With regard to the limitation learned counsel has relied upon "2005 CLC 33 (Muhammad Saddiq and 6 others v. Zafar lqbal and 9 others), 1983 CLC 1643 (Mst. Fazal Begum and another v. Municipal Corporation, Lahore and 5 others), 2006 YLR 493 (Muhammad Yousaf, and others v. Mst. Zainab Bibi), 2004 SCMR 1502 (Rehman v. Yara through L.Rs, and others), 2005 MLD 376 (Mst. Jameela Begum v. Additional District Judge and 3 others), 2011 YLR 2991 (Ghulam Ahmed v. Muzafara Begum and 8 others), PLD 2004 Lahore I (Mohsin Khan and 3 others v. Ahmad Ali and 2 others) and 2008 SCMR 905 (Muhammad Anwar and 2 others v. Khuda Yar and 25 others)". Learned counsel for the respondent-plaintiff while relying upon. "1970 SCMR 246 (Muhammad alias Muhammad Ali v. Raja and 7 others)" states that by widow the property which was granted for her own right, cannot be transferred by her.Learned counsel for respondents Nos.15, 17 and 18 has adopted the arguments of learned counsel for the petitioners.
7. The rest of the respondents have been proceeded against ex parte vide order dated 26-9-2012.
Learned counsel for the parties have advanced arguments, on issues Nos.1, 2 and 9 to 11-A. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
8. There are two transactions in issue in this suit about the suit land. One is the Mutation No,25 of inheritance sanctioned on 22-5-1925 through which the rights in the land left by Ghulam Muhammad were transferred in favour of his son/the plaintiff, his widow Mst. Bahisht Bibi and his grandson Inam Ullah Khan. Second is gift mutation No,76 sanctioned on 14-12-1962 part of suit land measuring 77-kanals 1-marla in favour of Mst. Mumtaz Begum, wife of the plaintiff.
9. It is settled that plaintiff has to prove the case pleaded by him. At one side, it is the case of plaintiff that he is entitled to whole of the property left by his father, who left 400 kanals 2 marlas land, whereas he is claiming 133 kanals 16 marlas as disputed land and claiming owner to the extent of 234 kanals 15 marlas. It has also been pleaded by the plaintiff himself that his mother transferred the property in his name under the family settlement, therefore he became owner of 234-kanals 15-marlas. As the case of plaintiff is that in accordance with section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) he was entitled to inherit whole of the suit property, therefore for proving the application of section 20, he was bound to prove Ghulam Muhammad, propositus to be the original tenant. The plaintiff failed to prove so.
10. I have noticed that at the time of sanctioning of mutation No,25 there were deliberations and even the Revenue Officer noted that the son i,e, plaintiff who was marked in that mutation as Muhammad Akbar Khan is minor and the grandson of deceased, namely Inam Ullah Khan is also minor. The Revenue Officer noted that widow of deceased is alive and there are six daughters of the deceased, one of whom is married and one is blind. They were residents of Pind Dadan Khan District Jehlum, therefore he sent 'Band Sawalat', with the consent of widow of deceased and in accordance with reply of 'Band Sawalat' the Revenue Officer sanctioned the Mutation No,25 giving 1/3rd each to the son of deceased, to his grandson and to his widow and mutation was sanctioned on 27-11-1925. It seems that in accordance with the prevailing custom, this mutation was sanctioned. When through Mutation No,55 on 2-7-1930 the name of plaintiff was corrected and when through Mutation No,59 sanctioned on 8-2-1937 rights of Dakheekari' were mutated in the name of transferees of mutation No,25 and further when Mutation No,249 was sanction on 24-2- 1950 in favour of the transferees of Mutation No,25 through sale deed by the Government and further when through Mutation No,49 sanctioned on 31-1-1960 the inheritance of Mst. Bahisht Bibi was transferred in favour of her legal heirs, therefore the filing of suit in the year 1983 was patently time barred. The case-law referred to by learned counsel for the petitioners-defendants "2010 SCMR 760" is fully applicable to the facts of this case, whereas the case-law cited by learned counsel for the respondent/plaintiff is not applicable to the facts of this case, rather "PLD 2004 Lahore 1 and 2008 SCMR 905" are against the stand of respondent-plaintiff, as if the plaintiff be admitted a co-sharer in the suit property with the defendants, then certainly he is admitting the defendants also the co-owner in the suit property. His claim is for total ouster of the defendants and claiming himself to be the exclusive owner of suit property, therefore these citations are not helpful to the plaintiff, rather the same are against the plaintiff's claim and if he admits the defendants also to be the co-sharer, then his claim vanishes.
11. The plaintiff has nowhere stated that all the proceedings of conferment of proprietary rights and further mutations were not in his knowledge when the defendants-petitioners were recorded as owner in the suit property on the basis of inheritance, therefore filing of suit by the plaintiff 58 years after the mutation challenging the same in the suit was certainly time barred. Further, after the attestation of impugned Mutation No,25 various mutations have not been challenged whereby the plaintiff impliedly admitted the validity of Mutation No,25. Furthermore, when in Para 4 of the plaint the claim of plaintiff is that his mother transferred the property in his name under the family settlement after she got the daughters married, negates his claim to inherit exclusively whole of the property left by his father.
12. So far as Mutation No,76 is concerned. It is a gift mutation in favour of his wife sanctioned on 14- 12-1962 involving land measuring 77-kanak 1-marla. No doubt, it is settled law that a beneficiary must prove the transaction but there are some further principles that when a suit to challenge any transaction through any mode is filed, onus shifts upon the other side only when a plaintiff appears before the court and makes statement on oath in the witness box as his own witness and denies from the impugned fined transaction, then certainly onus shifts upon the other side. In this case, the defendants Nos.1 to 3 have received the portion of property gifted by him through the inheritance of their deceased sister, who was the wife of plaintiff and further the transaction of gift is of the year 1962 and the lady died and her mutation of inheritance No,405 was sanctioned on 19- 1-1982. Even the plaintiff has not pleaded that how his wife got the mutation of gift sanctioned by the plaintiff in her favour and what was the interest of defendants Nos.1 to 3 who have now received the share, as unfortunately the lady died in the life time of the donor i,e, the plaintiff and she was issueless. This also is sufficient to substantiate to disbelieve the version of the plaintiff pleaded by him. Furthermore, he has uttered not a single word about this gift mutation when he appeared as his own witness as P.W.2, therefore he also failed to prove the case pleaded by him against this mutation.
13. Under the Mohammadan Law when a Mohammadan transfers the property in favour of his wife, the physical transfer of possession is not necessary. The only symbolic transfer of possession is sufficient. It is settled that in such like cases when a corpus of land is gifted to a lady who is dependent upon the donor, the physical possession of the donor after the gift, is presumed on behalf of the donee.
14. Even otherwise, in accordance with section 3 of the West Punjab Muslim Personal Law (Shariat)
Application Act (IX of 1948) the termination of limited ownership of a female, the inheritance was to be open at the time of death of last male owner and successors of the propositus were entitled to inherit.
15. In this view of the matter, the findings recorded by both the courts below are against the facts and evidence available on the file as well as settled law, as the courts below misapplied the law presuming it to be a matter of inheritance. It was not a simple and clear case of matter of inheritance for the plaintiff only, whereas on the other side the defendants are the sisters of plaintiff who have acquired the rights through inheritance of their mother. In these circumstances suit filed by the plaintiff was not competent.
16. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees passed by both the courts below being against the evidence and contrary to law are set aside. Resultantly, the suit filed by the respondent/plaintiff shall stand dismissed.