' AMIN-UD-DIN.KHAN, J.--- Through this civil' revision, petitioners-defendants have challenged the judgment and decree dated 7-2-2005 passed by learned Addi: District Judge, Bhakkar, whereby the appeal filed by the respondent-plaintiff was accepted, by way of which, judgment and decree dated 22-7-2004 passed by learned Civil Judge 1st Class, Camp at Mankera District Bhakkar, dismissing the suit of respondent-plaintiff for declaration, were set aside.
2.' In this revision petition on 18-3-2005 in response to pre-admission notice Allah Wasaya Malik, Advocate filed power of attorney and appeared on various dates of hearing on behalf of respondent. Today no one appeared on behalf of the respondent and this case is pending since 8 years before this Court, therefore I have no option but to hear the learned counsel for the petitioners and decide the same after perusal of record.
3. Brief facts are that the respondent-plaintiff on 13-1-1997 filed a suit for declaration wherein challenged the mutation of gift No.968 attested on 19-5-1969 allegedly by the plaintiff in favour of defendants who are the real brothers of plaintiff. The written statement was filed and suit was contested. Learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, learned trial Court vide judgment and decree dated 22-7-2004 dismissed the suit. An appeal was preferred by the plaintiff before the learned first appellate court, which was accepted vide judgment and decree dated 7-2-2005 and suit of respondent-plaintiff was decreed. Hence, this civil revision by the petitioners-defendants.
4. Learned counsel for the petitioners-defendants argues that when the mutation of gift was challenged on the basis of fraud and misrepresentation, therefore the respondent-plaintiff was required to plead and prove the same with full details; that no detail has been given in the plaint and as such the suit was not competent; that the suit has been filed with a considerable delay, the same was incompetent. Further states that the findings recorded by learned first appellate court on issues Nos.2, 4 and 5 are in contradictions of evidence available on the file. Further while attacking the findings of learned first appellate court that without any reason the respondent- plaintiff has been given benefit on the basis of being "Pardanasheen" lady, states that it is not on the record that she is a "Pardanasheen" lady.
5. I have heard the learned counsel for the petitioners in detail and have also gone though the record with the able assistance of learned counsel as well as the findings recorded by two courts below.
6. The case is very simple. Admittedly the suit property was received by the respondent-plaintiff in inheritance from her father, who died in the year 1959 and mutation of inheritance No 665 (Ex.P-2) was sanctioned on 30-1-1960. We go through daily such like transactions of gift by poor sisters in favour of their brothers with regard to the property which the sisters received in inheritance along with their brothers. In this case as I have noted that the property was inherited by the respondent- plaintiff from the inheritance of her father and the case of plaintiff that the defendants are her brothers and after her marriage she started residing in District Khushab' with her husband, whereas the suit property is situated in Mouza Mahni Tehsil Mankera District Bhakkar and through misrepresentation and fraud the petitioners-defendants got attested the mutation of gift in their favour. When the suit has been filed and attorney of respondent-plaintiff appeared as P.W.1 sand further when plaintiff herself appeared as P.W.3 in rebuttal evidence, then it was the duty of petitioners-defendants who were beneficiary of transaction to prove the valid gift in their favour independent of attestation of mutation and then valid attestation of mutation of gift in their favour.
By perusal of record and the arguments of learned counsel for the petitioners it seems that petitioners are of the view that it was the plaintiff to disprove the mutation of gift and if she fails to disprove the valid attestation of mutation of gift, the suit will fail but now with development of law on the point it is well settled that when a lady challenges the validity of any oral transaction on her behalf, then she appears in the witness box and makes a statement on oath. The onus shifts upon the other side to prove the transaction and also the valid attestation of mutation. Light can be taken from the judgment of august Supreme Court of Pakistan reported as "2010 SCM R 1370 (Khaliq Dad Khan and others v. Mst. Zeenat Khatoon and others)" . In case of gift the quantum of proof of factum of gift as well as attestation of mutation on the basis of gift is further heavily rests upon the beneficiary, as in a gift ordinarily nothing is received by the donor in consideration of property transferred through gift. In this case, when the respondent-plaintiff filed a suit against her real brothers with regard to the suit property which she inherited from her father and it is not on the file that after inheriting the property, the property of defendants and plaintiff was partitioned through process of law and further the petitioners-defendants were bound under the law to prove the factum of gift independent of attestation of mutation. As I have noted supra even there is no pleading in their written statement by the defendants with regard to factum of gift prior to the entry or attestation of mutation. The further point is that what was the necessity to gift the property to the petitioners-defendants when the plaintiff-respondent is having her husband and children also, as she has specifically pleaded in her plaint with regard to the knowledge of impugned mutation, therefore all the objections raised by learned counsel for the petitioners with regard to limitation are also not sustainable under the law. In this view of the matter, the findings recorded by learned first appellate court are unexceptionable. No case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. Has been made out. Resultantly, this civil revision being devoid of any force is dismissed.