' MIAN FASIH-UL-MULK, J.--- The concurrent findings of facts arrived at by the two Courts below, dismissing the declaratory suit of petitioners, have now been assailed in the instant revision petition.
2. The background in which filing of instant suit has arisen is that Haji Naikamal Khan had landed property in four mauzas i.e. Parkho Dheri, Qasim Dewan Khel and Shabat Khel. He had two male sons; namely Haji Fazal Muhammad and Muhammad Saleem. During his lifetime, Haji Naikamal Khan gifted out the said properties in favour of his sons from time to time vide Mutations No.2500 attested on 23-1-1973, No.99 attested on 29-7-1996, No.286 attested on 29-8-1997, and No.291 attested on 25-9-1997. Haji Naikamal Khan, however, died on 21-2-2000 and it was after his death, when petitioners filed instant suit against respondents on the ground that they being sons of Mst.
Bakhsheda daughter of Haji Naikamal Khan are entitled to their 7/48 sharai shares in the legacy of their predecessor. They thus questioned the legality of gift mutations in favour of respondents and termed the same as wrong and bogus. The grounds of attack on the said mutations, being illegal and fictitious, were that Haji Nekamal Khan never appeared before the Revenue Officer for attestation; that no possession was given to respondents in lieu of said mutations as their predecessor remained in possession of the property during his lifetime; that at the time of attestation of Mutation No.2500 dated 23-1-1973, Haji Nekamal Khan was neither present nor signed the mutation nor the mutation was attested in the same mauza, that other mutations with regard to lands in Mauza Shahbat Khel and Dewan Khel have also been wrongly attested.
3. The respondents/defendants contested the suit of petitioners by filing written statement. Out of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether Civil Courts have got jurisdiction in present case?
(4) Whether the suit is filed within period of limitation?
(4) Whether form of suit is wrong and thus not maintainable?
(5) Whether the suit is bad on account, of mis/non-joinder of necessary parties?
(6) Whether defendants are owner in possession of the suit property on the basis of Mutation Nos.2500, 286, 291 and 99 dated 23-1-1973, 29-7-1997, 25-9-1997 and 28-7-1996 respectively?
(7) Whether plaintiffs are entitled to the decree as prayed for in Juz "Alif", "Bai" and "Jeem"?
(8) Relief Additional Issues:
(1) Whether the Mutations Nos.2500, 286, 291 and 99 are wrong, illegal, fraudulent, fictitious, result of collusion and ineffective upon the rights of the plaintiffs?
(2) Whether the gift mutations are suffering from offer and acceptance and without transfer of the possession?
(3) Whether predecessor-in-interest of the plaintiffs were not entitled to the inheritance of Naikamal Khan?
' Plaintiffs/petitioners in support of their case produced 13 witnesses whereas defendant/ respondents produced 7 witnesses where after arguments of learned counsel for the parties were heard and vide impugned judgment/decree dated 31-5-2006 suit of petitioners was dismissed by the learned Civil Judge-VI, Mardan. The petitioners filed appeal before the District Court, which was also dismissed by the learned Additional District Judge-III, Mardan vide impugned judgment/decree dated 14-4-2007.
4. Learned counsel for the petitioners almost argued the same points, which were already agitated before the two Courts below and answered in the light of evidence available on file. However, it was again stated that when on one of the mutations signatures of donor was not obtained; when some of the mutations were not attested in the same village where the suit-land situated; when some of the mutations were not attested in a Jalsa-e-Aam and when the donor remained in possession of the suit property till his death, then the essential requirements of a valid gift under Muslim Law were missing and the Courts below have erred in non-suiting the petitioners by holding that the mutations were correctly attested.
5. On the other hand, learned counsel for respondents submitted that there was no legal infirmity in the impugned mutations, which have been properly attested in accordance with law; that respondents also produced marginal witnesses of the mutation and delivery of possession had already taken place, therefore, the learned Courts below have rightly repelled the contentions of petitioners in this regard.
6. Arguments heard and record perused.
7. The parties are Sunni by sect. The three essentials of a gift (hiba) are mentioned in Mullah's Principles of Mohamedan Law, 16th Edn, in section 149 at 141 in the following terms:- "It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with, the gift is complete."
' As per evidence on record, Mutation No.2500 dated 31-1-1973 was attested in a Jalsa-e-Aam at Mian Issa in. Presence of two witnesses Sarfaraz and Saiffur Rehman Lumberdars where under land situated in Mauza Parkho Dheri was gifted to respondents by their father Haji Nekamal Khan.
Respondents produced Sarfaraz Khan as D.W.5, who supported the contents of mutation being one of its marginal witnesses. He deposed that his signature on the mutation is correct. This witness also affirmed that possession of the property was also handed over to the donees by the donor.
The stance of respondents is further supported by the Revenue Record as in the Fard Jamabandis for the years 1978-79, Exh.P.W.3/2, 1991-92, Exh.P.W.2/6 and 1999-2000, Exh.P.W.2/7, they are recorded as owners in the column of ownership as well as in the column of cultivation. The mutation in question was attested in the year 1973 which was produced in Court in the year 2002 i.e. After lapse of 30 years; hence presumption of correctness is attached to it under Article-100 of Qanun-e- Shahadat. DW-5 in his cross-examination has admitted it correct that signature of Haji Nekamal Khan was not obtained on the mutation in his presence whereas his signatures and that of Saifur Rehman were obtained by the Tehsildar. If the Tehsildar did not obtain signature of donor on the mutation in question, the same is of no help to the petitioners because as per Para-4.7 of Land Records Manual, signatures/thumbimpressions of parties on mutation are not necessary rather prohibited. In the case of Manzoor Hussain v. Raja Shah and others (1992 CLC 602), the contention of counsel was rejected in the following words:- "The contention of the learned counsel for respondents that obtaining of the signatures or the thumb-marks of the donor on the mutation was necessary is not correct. The Board of Revenue has never prescribed that signatures or thumb-impressions of parties should be obtained on the mutation. In fact Para 4.7 of the Land Records Manual and Director Land Record's Circular Letter No.101 dated 17-4-1968 strictly prohibit this practice."
' Similar dictum has been laid down by the august Supreme Court of Pakistan in the case of Bani Begum and others v. Muhammad Azam Khan and others (PLD 2003 Supreme Court 235). Besides, the mutation in question was challenged beyond the period of 12 years and thus on this count too its authenticity was not open to any exception.
8. Mutation No.99 was attested on 8-7-1996 and one Alamzeb, Lambardar of Mauza Shahbat Khel was produced as DW-1, who stated to be an identifier witness of the mutation in question through which Haji Nekamal Khan gifted the land in favour of respondents. DW-4 Jalal, a retired Girdawar stated that he , was appointed as commission. According to him, in his presence the two witnesses Ameer Ghawas and Alamzeb Numbardar along with Haji Nekamal Khan signed the mutation and he submitted his report to this effect (Exh.P.W.4/2). The entries regarding this mutation have also been incorporated in the fard-jamabandi for the year 1998-99, Exh. P.W .5/1. The respondents have sold out some of the properties gifted to them through this jamabandi to other persons, which fact further points out to the fact that respondents were in possession of the property otherwise they would not have entered in sale transactions with other persons. As per dictum of the Apex Court in the case of Muhammad Amir and others v. Mst. Beevi and others (2007 SCMR 614), when the entries of mutation are incorporated in the record of rights, same would carry presumption of truth. See also; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) and Hakim Khan v.
Aurangzeb and another (1979 SCMR 625).
9. Mutation No.291 was attested on 17-3-1998. Respondents produced both the two attesting witnesses of this mutation i.e. DWI and DW3. According to DW-3, he had thumb impressed the mutation, which was attested in Mauza Dewan Khel. He further stated that Alamzeb and Nekamal Khan both had signed the same in his presence where the Patwari Halqa and Tehsildar were also present. The entries regarding this mutation are also incorporated in Fard-Jamabandi for the year 2000-2001 wherein respondents are entered as owners in the column of ownership as well as cultivation.
10. Similarly, both the marginal witnesses to Mutation No.286 attested on 28-8-1997 in their statements have stated that they have signed the mutation in presence of Haji Nekamal, which was also signed by the donor himself. According to DW-2, at the time of attestation of mutation, the Tehsildar and Patwari alongwith donor were present in the Hujra. Effect has also been given to this mutation in the fard-jamabandi for the year 1997-98, 2000-2001 which are Exh.P.W.2/2 and Exh.P.W.2/3 wherein names of respondents have been mentioned in both the columns of ownership as well as cultivation.
11. From the above, it can be safely inferred that respondents have successfully established the factum of genuineness of the mutations in question whereas petitioners have failed to produce any cogent evidence with regard to incorrectness of the same except filing of two affidavits, Exh.
P.W .7/1 and Exh. P . W . 10/1 scribed at the instance of one Bakht Zameen wherein it is stated that though his name and NIC appears on Mutation No. 291 dated 6-3-1998 but he has never thumb- impressed the same and that Amir Ghawas had also not signed Mutation No.99 dated 14-7-1997.
However, Bakht Zameen when appeared as DW-3, he admitted his thumb impression on the mutation in question and similar is the case of another witness, who also has admitted his signature on the mutation as well as his presence at the time of attestation of mutation. The said witnesses were not produced by petitioners in support of their claim although they were alive. The trial Court had also not invoked the provision of Order XIX, C.P.C. And the matter was to be adjudicated upon merits i.e. After recording evidence of the parties on the issues framed in the case; Bashir Ahmad v. Abdul Wahid (PLD 1995 Lahore 98). It is also not fatal to the case of respondents, if the attesting witnesses related to some other village as under the provisions of Land Revenue Act, an Estate would mean not only a particular village, but also that village included as a unit for purpose of assessm ent of land revenue. A Lambardar or Member of a Union Council concerned, whether he belongs to the same village or not, can identify the vendor or donor at the time of attestation of mutation; Taj Muhammad Khan v. Mst. Munawar Jan (2009 SCMR 598).
12. For the reasons stated above, I find no merit in this revision petition; which is hereby dismissed with no order as to costs.