' LAL JAN KHATTAK, J.---Through this Civil Revision Petition filed under section 115 C.P.C; petitioner Ijaz Hussain has called in question the legality and propriety of the judgment and decree dated 8-4- 2013 of the learned Additional District Judge-V, D.I.Khan vide which his appeal against the judgment and decree dated 15-2-2012 of the learned Civil Judge-VII, D.I.Khan, was dismissed.
2. Short facts giving rise to the instant petition are that the respondents-plaintiffs filed a declaratory suit against the petitioner to the effect that the gift Mutation No,142 attested on 21-6- 1999 on behalf of their father in favour of the petitioner-defendant is illegal, contrary to law, is based on fraud and misrepresentation and as such is liable to be cancelled.
3. According to the averments of the plaint, the suit land was owned and possessed by Manzoor Hussain Khan, father of the respondents-plaintiffs who died some three years back from the institution of the present suit. It is averred in the plaint that the respondents reside in District Bhakkar and the suit land was managed by the petitioner-defendant No,1 on their behalf, who is their cousin. The respondents further averred in their plaint that the petitioner illegally and fraudulently transferred the suit land in his name form their father by way of a gift mutation bearing No,142 attested on 21-6-1999 which is illegal as no such gift has ever been made by their father in favour of the petitioner.
4. Petitioner-defendant contested the suit filed against him by filing his written statement wherein he responded that the predecessor-in-interest of the respondents has sold the suit land to him in accordance with law. After framing necessary issues from pleadings of the parties the learned trial Court directed the parties to produce their respective evidence in support of their claims which the parties did produce whereafter the learned trial Court vide its judgment dated 15-2-2012 decreed the suit of the respondents as prayed for. Petitioner filed appeal against the said decree but the learned appellate Court vide its judgment and decree dated: 8-4-2013 dismissed the appeal. The petitioner has now come up in revision before this Court against the concurrent findings of the two Courts below.
5. Learned counsel for the petitioner contended that the impugned judgments and decrees of the two courts below are the result of non-reading and mis-reading of case evidence. He elaborated his this contention by arguing that though inadvertently it is responded in the written statement that the suit land has come to the petitioner by way of sale but in fact as it is proved from the record that the suit land was gifted to the petitioner by father of the respondents, namely Manzoor Hussain Khan. He contended that to prove the factum of gift the petitioner produced both the marginal witnesses of the gift mutation who deposed in clear terms that in their presence the gift mutation was attested by the concerned revenue officer who had put a query to the donor of the suit land regarding authenticity and validity of the gift and the donor in their presence admitted the gift in favour of the petitioner without any ifs and buts but the two courts below have not looked into this vital aspect of the case. The learned counsel lastly contended that no fraud was practiced by the petitioner upon the donor who with his free will and consent gifted the suit land to the petitioner.
6. Conversely, learned counsel for the respondents-plaintiffs supported the judgments and decrees impugned by the petitioner by contending that both the Courts below have correctly assessed and appreciated the case evidence and suit of the respondents was rightly decreed.
7. I have heard learned counsel for the parties and also gone through the record of the case with their valuable assistance.
8. In this case donor of the suit land was father of the respondents while the petitioner is his nephew. When in presence of real sons a gift is made by a father in favour of somebody else then there comes a very heavy burden on the shoulder of the donee to prove that the gift is free from all sort of defects and was effected with the free consent, free and peaceful mind, without any pressure or inducement etc. And was made in a conducive atmosphere by the donor and that the gift was also known to the would be affectees or near relatives of the donor who neither raised any objection or reservation on the alienation. Until and unless the above facts are proved it can not be said that the gift was made in accordance with law.
9. Perusal of the case record shows that apart, from the mutation the petitioner-donee has not produced any convincing evidence from which it could be ascertained that the donor had made the gift in his favour. Learned counsel for the petitioner contended that the gift mutation is a sufficient proof to establish the factum of gift but I am afraid as his this contention is not tenable because it has been held umpteen times by the Superior Courts that mutation per se is not enough to establish title to a property as mutations are always made for fiscal and revenue purposes and they are no substitute for the real and actual transaction which give rise to a mutation.
10. Though the petitioner has produced Syed Noor Zaman as DW-1 and Amir Muhammad as DW-2 who are marginal witnesses of the gift mutation but their testimony is of no help to him for the reason first that they are resident of a different village and second that they are not witnesses of the real and basic gift transaction in pursuance of which the gift mutation was entered and then attested. They are just witnesses of the mutation alone and not of the factum of gift which is an independent and separate transaction. Mere recital by them, that in their presence the Revenue Officer before the attestation of mutation put to the donor a query regarding his willingness to the gift is not a proof that a valid gift was made by the donor.
11. The petitioner was under heavy burden to prove the factum of the alleged gift as to when the offer of gift was made by the donor to him, who were present at that time when the donor put the offer of gift to him and that thereafter he did accept such offer and further that after the acceptance of such offer he was put into possession of the gifted land. All the above essential requirements and ingredients of a valid gift are very much lacking in the instant case which causes serious doubt on the legality of the alleged gift.
12. Perusal of the revenue record of the suit land also shows that the petitioner is not in possession of the suit land which fact further weakens his stance that the suit land has validly and legally come to him in pursuance of a gift. Over and above the petitioner has responded in his written statement that the suit land has been transferred to him through a sale transaction which fact is in total negation to the plea taken by him in his evidence that the suit land was gifted to him by the donor.
13. Both the courts below have rightly and correctly appreciated and assessed the case evidence where-after it was concurrently held that the gift mutation is not legal. I have not noticed any illegality or infirmity in the concurrent findings of the two courts below.
14. For the above discussed and reasons, I did not see any merit in the instant Civil Revision Petition which is hereby dismissed.