' LAL JAN KHATTAK, J.--- This civil revision under section 115, C.P.C. Is directed against the judgment dated 15-3-2012 of the learned Additional District Judge-VI, D.I.Khan whereby appeal of the petitioners against the judgment and decree dated 16-7-2011 of the learned Civil Judge-VW D.I.Khan, has been dismissed.
2. Short facts of the case are that the respondent No,1/plaintiff instituted a suit against the petitioners-respondents for declaration, permanent injunction and cancellation of Tamleek Mutation No,5590 attested on 21-3-2005 vide which landed property belonging to her father has been transferred by the petitioners in their name. The suit was hotly contested by the petitioners and after framing of necessary issues the learned trial Court directed the parties to lead their evidence which they did whereafter the learned trial Court vide its judgment dated 16-7-2011 decreed the suit which decree was impugned in appeal but the learned appellate Court on 15-3- 2012 dismissed the appeal. The petitioners have now impugned both the aforesaid judgments and decrees in the instant revision petition.
3. Learned counsel for the petitioners contended that predecessor of the petitioners who was owner of the suit land has legally transferred the same through a valid Tamleek mutation which transaction was in accordance with law and was corroborated by independent and reliable evidence as apart from marginal witnesses of the mutation, uncle of the parties and widow of the donor appeared who all testified about the genuineness of the Tamleek mutation: The learned counsel contended that though fraud etc. Has been alleged by the respondent but no evidence has been produced by her in support of her this version. Learned counsel further contended that the suit is based on mala fide and the respondent has been driven to the litigation by her husband who is calling the shots behind the scene. The learned counsel for the petitioner in support of his arguments placed reliance on PLD 1994 SC 650 and PLD 2004 SC 520 and further contended that the judgment of the appellate Court is not in accordance with Order XLI, Rule 31, C.P.C.
4. As against the above, learned counsel for the respondent No,1 contended that the impugned mutation is based on fraud practiced upon the rights of the respondent as the petitioner No,1, who at the relevant time was DSP in Anti-Corruption Department at D.I.Khan has prevailed upon the revenue officials to attest the mutation by misusing his authority. The learned counsel contended that there is no offer by or on behalf of the alleged donor nor any acceptance by the so-called done nor delivery of possession of the suit-land to the petitioners has been proved. The learned counsel further argued that the impugned mutation is not in accordance with the mandatory provisions of Land Revenue Act, 1864. Lastly it was contended by the learned counsel for the respondent that the concurrent findings of the two courts below are based on the correct appreciation of law and case evidence which need no interference from this Court in the-exercise of its revisional jurisdiction.
5. I have heard learned counsel for the parties and gone through the record of the case.
6. Perusal of the case record reveals that both the petitioners being real brothers of the respondent No,1 are beneficiary of the Tamleek mutation and it was for them to prove through convincing and worth reliance evidence that the property forming part of the impugned mutation has legally come to them. It is also on record that at the time when the impugned mutation was sanctioned the petitioner No,1 was DSP in Anti-Corruption Department and was posted at D.I.Khan where the suit land is situated.
7. A litmus test for giving validity to a Tamleek or gift transaction is the presence of three ingredients which give validity to a gift i,e, offer, acceptance and delivery of possession. If any of the above is short then the gift will not be a legal and complete gift. On the touchstone of the above, if record of the case is perused, we will come across to see absence of the above three ingredients in the alleged gift. Petitioner No,1 Fareedullah Khan appeared before the Court as DW-1 and deposed nothing either about the making of any offer by the donor or its acceptance by him or by his other brother. Similarly he also did not utter a single word about the acceptance of the alleged gift by himself or by the other donee. Likewise, there is no evidence about the delivery of possession of the suit land to the donees by the donor in pursuance of the alleged Tamleek.
Another aspect of the matter is that apart from the mere attestation of the alleged mutation there is no detail or evidence regarding the factum of gift/Tamleek. The donees were under heavy burden to give a date and place when and where the alleged offer of gift was made by the donor and its acceptance by them. A mutation per se is not sufficient to prove the factum of gift unless and until the real and actual transaction thereof is proved by the beneficiaries as it is the very basis on which the edifice of mutation is built subsequently. In absence of any evidence qua the original transaction of a gift no credence or importance could be given to a mutation alone.
8. Apart from the above, the alleged mutation has been attested in another mauza which is away from the one where the suit land is situated. The marginal witnesses to the mutation too are residents of other mauza. One of them is best friend of the petitioner No,1 while the second is his tenant. The revenue officer who sanctioned the mutation has not been produced as a witness to prove genuineness and authenticity of the transaction. Moreso, widow of the predecessor appeared before the Court though she deposed in favour of the petitioners but equally she admitted in her statement that her husband was sick for 2-3 years before the gift mutation which aspect of the matter puts the impugned mutation under the clouds of doubt.
9. Over and above there are concurrent findings of the two courts below whereby the petitioners have been non-suited. Though the learned counsel for the petitioners submitted at the bar that the judgment and decree of the learned appellate Court is not according to Order XLI, Rule 31, C.P.C. But it appears that the learned appellate Court has discussed all the available evidence of the case whereafter it concurred with the learned trial Court. Both the judgments of the Courts below are based on correct appreciation of law and evidence of the case and no illegality or irregularity has been committed by them.
10. For the above discussion and reasons, the instant civil revision being bereft of any merit is hereby dismissed with costs.