1. IKRAMULLAH KHAN, J.--- By this revision petition, the petitioner has challenged the judgment dated 24-5-2011, passed by the learned Additional District Judge-I, Nowshera, whereby the appeal against the judgment dated 23- 2-2010, passed by Civil Judge, Nowshera was allowed and the suit was decreed in favour of respondent No.1.
2. 2.Precisely stated facts are that respondent No.1 Mst. Khushnooda daughter of late Sher Dil, instituted a declaratory suit in regard to disputed property, well mentioned with survey numbers therein the heading of the plaint. Alleged thereof that she is the legal heir of one late Sher Dil and is entitled for her Shari share within the disputed property, being real daughter of late Sher Dil also challenged Mutation No.2215 attested on 13-5-1971, being result of fraud and misrepresentation and ineffective upon the right of ownership of the respondent No. 1 in the disputed property.
3. 3.The petitioners, contested the suit by filing their written statement, whereof, claimed ownership of the disputed property, as respondent No.1, through her late husband one Shaukat Ullah, had gifted the disputed land in the name of her two brothers vide Mutation No.2215 dated 13-5-1971, and as such could not be allowed to resile from her solemn commitment in this regard and that too after a lapse of 36 years.
4. 4.The learned counsel for the petitioner contended that the impugned judgment is perverse one and the lower appellate Court has acted in sheer disregard of the established principle of law, that, the learned appellate Court has not been able to read the available evidence in its true perspective, instead of the fact that the impugned mutation had been proved by the petitioners through solid and cogent evidence but the lower appellate Court not appraised and appreciated it.
5. 5.He also submitted that as per the provision of section 167 Muhammadan Law, a gift could not be revoked once it is acted upon and the possession of the disputed land had also been delivered to the donees just on conclusion of the gift mutation.
6. 6.The learned counsel of the petitioners also led me through statements of other sisters of the respondent No. 1, who had accepted the disputed mutation, true and correct and attested it on their free consent in favour of their two brothers.
7. 7.On the other hand, the learned counsel for the only contested respondent No.1, argued that, the respondent No.1 was a Pardah Nasheen lady and she never attested or executed the disputed mutation in favour of her brothers.
8. She had not transferred her proprietary rights in the legacy of her late father to any one including the petitioners or their predecessors in interest.
9. 8.He further argued that respondent No.1 even at the time of the alleged mutation was a married lady having its own kids, how she without any consideration, gifted her whole share in the disputed land in favour of her brothers, and deprived her own kids of so much valuable property, devolved upon her as legacy of her late father.
10. 9.Arguments heard and carefully gone through the record.
11. 10.The revenue papers placed on record, reveals that on 13-5-1971, two mutations were simultaneously attested by the Revenue Officers concerned one was inheritance mutation of late Sher Dil whereby the disputed property was entered in the name of respondent No.1 and rest of her sisters, brothers and mother, while through the 2nd Mutation No.2215, the share of respondent No.1, her sisters and mother were entered in the name of their two brothers duly incorporated in the Revenue Record in the name of Shaukat Ali and Dalil Khan. The copy of the Mutation No.2215 attested on 13-5-1971, available on record, is ineligible and the names of witnesses as well as the signature or thumb impression of the respondent No.1, or any other person could not be ascertained for the reasons best known to the Revenue Authorities in this regard.
12. 11.No witness in this regard has been produced by the petitioner to substantiate their plea of transfer of property in their name by the respondent No.1. Even not a single witness in this regard has substantiated the plea of the petitioners to prove the factum of disputed mutation of gift. Great care and caution is required in this regard to deprive a Parda Nasheen Lady of her due right in matter of legacy.
13. 12.The beneficiaries of such a disputed mutation are under bounded duty to prove the execution of such a mutation, in its true perspective to enable a prudent mind that the mutation has been executed and attested by the donor, with its free consent.
14. 13.Dubious and doubtful mutations need utmost care and caution by the Courts in order to avoid any injustice with any parda nasheen ladies. Theprovisions ofthelandRevenueAct,containedthereunder section 42, described a complete procedure in regard to transfer or acquisition of rights in immovable property. According to section 42 which is read as;--- Land Revenue Act, 1967, section 42; - Making of that part of periodical records which relates to landowners. (1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall--- (a)record such report in the Roznamcha to be maintained in the prescribed manner, (b)furnish a copy of the report so recorded, free of cost, to the person making the report; and (c)Send a copy of the report within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.
15. Note: In the Province of Punjab the words "Union Committee, Town Committee or Union Council" have been substituted by the words "Office of the Union Administration" by Punjab Ordinance LV of 2001, PLD 2002 Pun. St. 154.
16. (2)If the person acquiring the right is a minor, or is otherwise unable to report his guardian or other person having charge of his property shall make the report to the Patwari.
17. (3)The Patwari shall enter in his register of mutations ever report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made.
18. (4)The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection
(3) shall be displayed in such manner as may be prescribed.
19. (5)If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2), the person making the report may make the report in writing, to the Revenue Officer concerned and the "Chairman of the Union Committee, Town Committee or Union Council" in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.
20. Note: In the Province of Punjab the words "Chairman of the Union Committee, Town Committee or Union Council" have been substituted by the words "Union Nazim of the Union" by Punjab Ordinance LV of 2001, PLD 2002 Pun. St.
21. 154.
22. (6)A Revenue Office shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsection, report should have been made to the Patwari and entries made in the register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
23. (7)Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person, whose right has been acquired after such person has been identified by two respectable persons, preferable from Lambardar or members of "Zila Council, Tehsil or Town Council" or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations.
24. (8)An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.
25. (9)Where a Revenue Officer makes an order under subsection (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
26. (10)If within three months of the making of a report of the acquisition of a right under subsection (1) or subsection
(2) or the recording by the Patwari of an entry in the Roznamcha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue Officer under subsection (6), he shall report the cause of delay to the Collector in the prescribed manner.
27. (11)The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under subsection (6), to the person whose right is acquired, and also to the "Office of the Union Administration" in which the estate is situated.
28. 14.The petitioners failed to bring on record the required evidence, necessary for establishing the factum of acquisition of rights by the petitioners through the disputed mutation. Neither any witness, who had recognized the respondent No.1 in the common assembly, had been produced nor any document, which otherwise lead to an inference that the disputed mutation had been signed and attested by the respondent No.1 or her husband, had been produced by the petitioners in this regard.
29. 15.The bald statement given by petitioners witnesses are insufficient to give to an inference in regard to execution of the disputed mutation by respondent No.1.
30. 16.In case of "Fazal Hussain v. Muhammad Saleem and 4 others (2002 YLR 3262) it was held by the august Lahore High Court as;--- "Section 45---Qanun-e-Shahadat (10 of 1984), Article 118---Mutation---Onus to prove---Scope---Duty and obligation of the transferee to prove the contents of the mutation or mutation in terms of the provisions of Article 118 of Qanun-e-Shahadat, 1984---Validity---Party who relied upon the entries of the mutation was to prove the admission in consonance with the principles of Qanun-e-Shahadat, 1984, which were applicable to prove admissions---Initial onus of proof of a transaction embodied in mutation was essential upon the beneficiary of the mutation."
31. 17.As far as limitation is concerned, no limitation runs against a co-sharer. Every fresh entry in the periodical record in regard to a particular immovable property gives fresh cause of action to the aggrieved person.
32. 18.In case of Redi Gul and 16 others versus Haji Swab Gul and others (PLJ 2009 Peshawar 39) this Court has held as;--- "Every fresh Jamabandi carrying an incorrect entry gives a fresh cause of action so the suit was not time-barred."
33. 19.In case of Mst. Khiswa r versus Abdul Dehyan (2004 CLC 203), this Court has held that;--- "Mere attestation of mutation, would not convey any title to vendee/donee and the very transaction must be proved independently through cogent evidence by the beneficiary claiming title thereunder. Entries in record of rights were maintained for fiscal purpose alone."
34. 20.It is by now settled principle of law, that wrong entries never conferred or deprive a person of its valuable rights in immovable property.
35. 21.Strong, cogent and irrebuttal evidence is required to prove a transfer of rights in immovable property and to deprive a person of his valuable rights therein any immovable property.
36. 22.The burden of proving a transaction, always lies on the person, who would be the ultimate beneficiary of such transaction and it never shifted to an aggrieved person, particularly to a Pardah-observing lady.
37. 23.In this conservative kind of society, where females folk are not considered at par with the male, in regard to inheritance matter, and when in such a society the male legal heirs, always found reluctant to give the due right of a female, though bestowed upon them by Allah Almighty and law of the country, in such State of affairs, Court shall be vigilant to protect the valuable and legal rights of female folk.
38. 24.Express repudiation and ouster of such rights shall be proved through high standard of evidence, which could not create a single dent in the smooth completion of such a transaction, which takes away the right of a Pardah- observing lady.
39. 25.Adverse entry and non-participation in the profits of the property would not amount to an ouster of co-sharer.
40. Wrong mutation confers no right in a property as Revenue Record is maintained only for purpose of ensuring realization of land revenue.
41. 26.The apex Court in case of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) has held that;- -- "Recognition and enforcement of law of inheritance by the State agencies including the Courts, vis-a-vis, the female heirs, is a matter of Public Policy in Islam."
42. 27.The plea of the petitioners, that once gift is made in favour of a donee, it could not be revoked as per provisions of section 167 of the Muhammadan Law, the allegedly executed gift is not gift in real sense but it is a kind of Mushaa as respondent No. 1, allegedly had transferred her share in undivided property and in such kind of gift delivery of a particular piece of land is sine qua non for completion of such a gift through Mushaa, even if in future the undivided property is partitioned, the gift would be considered as completed, but in the present case, as is revealed from the Revenue Record, the disputed property is still joint and undivided one. In such a situation, the provision of section 167 of the Muhammadan Law is not applicable to the case in hand, while otherwise, the case in hand is not that of Revocation but respondent No.1 had categorically denied its very execution and attestation of the alleged gift mutation as such the provisions of section 167 of the Muhammadan Law is alien to the case in hand on this aspect of the case too.
43. 28.As discussed hereinabove, the petitioners had miserably failed to prove that the disputed mutation had ever been either attested or effected by the respondent No.1 in favour of the petitioners, and the factum of possession would not deprive the respondent No.1 of her legal Shari share in the legacy of her late father.
44. 29.Petitioners failed to bring out any case which warranted in the interference of the impugned judgment.
45. 30.NoillegalityorirregularityhasbeennoticedbythisCourt intheimpugnedjudgment,andassuch,theinstantrevisionpetitionisdevoidofmerit,henceaccordinglydismissedwithno order as to cost.