KHALID MAHMOOD MALIK, J: This revision petition is directed against the judgment and decree dated 26.08.2010 passed by learned Additional District Judge, Liaqatpur, District Rahimyar Khan whereby he dismissed the appeal filed by petitioners/plaintiffs against the judgment and decree dated 29.05.2007, delivered by learned Civil Judge, Liaqatpur, who dismissed the suit of petitioners for declaration and permanent injunction.
2. Precisely, the facts germane for disposal of this revision petition are that plaintiffs Mst. Naziran Bibi, Mst. Saghiran Bibi, daughters and Mst. Amna Bibi, widow of Abdul Aziz deceased filed a suit for declaration with permanent injunction against defendants Bashir Ahmed and Khalil Ahmed sons of Abdul Aziz on the basis of ownership being legal-heirs of Abdul Aziz (predecessor in-interest of parties) in which they have challenged Tamleek mutation No.218, dated 27.02.1991 in favour of respondents/defendants pertaining to disputed land (fully described in the head note of plaint) on the plea of fraud, collusive, forged having no legal effect qua the rights of petitioners/plaintiffs. The suit was contested by the respondents/defendants through written statement in which they have controverted averments of plaint and raised numerous preliminary objections. On pleadings, learned trial Court framed relevant issues and called upon parties to adduce evidence in support of their respective versions.
3. Mst. Amna Bibi plaintiff (mother of the parties) has withdrawn her suit while after demise of Mst.
Naziran Bibi, petitioners/plaintiffs No.1 to 6 being legal-heirs were impleaded in the suit. At the conclusion of case, learned Civil Judge, Liaqatpur dismissed suit of the petitioners/plaintiffs vide judgment and decree dated 29.05.2007. Appeal filed by the petitioners/plaintiffs was too dismissed by the learned Additional District Judge, Liaqatpur through the impugned judgment and decree dated 26.08.2010. Hence, this revision petition.
4. Learned counsel for petitioners has argued that both the learned Courts below have acted illegally and committed material irregularity while passing the impugned judgments and decrees which are result of misreading and non-reading of evidence; that learned Courts below have not appreciated the evidence in its true perspective as respondents have failed to establish the basic ingredients of valid gift i.e. Offer, acceptance and delivery of possession. Lastly, prayed that suit of the petitioners/plaintiffs be decreed as prayed for by setting aside the impugned judgments and decrees.
5. Conversely, learned counsel for respondents/defendants supported the impugned judgments and decrees and prayed for dismissal of this revision petition.
6. Argument put forward by learned counsel for parties have been heard and record perused.
7. Admittedly, Abdul Aziz was owner of disputed property. The main grievance of petitioners/plaintiffs was that out of marriage bond of Abdul Aziz and Mst. Amna Bibi, Mst. Naziran Bibi, Mst. Saghiran Bibi (plaintiffs), Bashir Ahmed and Khalil Ahmed (defendants) were born. Abdul Aziz (father of the parties) never appeared before the Revenue Officer for transfer of property in question to his sons nor a valid Tamleek was made in favour of defendants by Abdul Aziz through Tamleek mutation No.218 in favour of respondents/defendant which is based on fraud, result of misrepresentation and ineffective upon the rights of petitioners/plaintiffs. Conversely, respondents/defendants maintained that the impugned Tamleek mutation was correctly and legally sanctioned in their favour. In addition to gift mutation Abdul Aziz donor executed affidavit on stamp paper No.1154 dated 17.03.1991 in which he has acknowledged and confirmed the transfer of disputed land by way of gift. In support of their versions both the parties produced their evidence before the learned trial Court. From the petitioners/plaintiffs' side Mst. Saghiran Bibi, plaintiff No.1 appeared as PW-1. The petitioners/plaintiffs further examined Elahi Bakhsh PW-2 and Ghulam Sarwar PW-3. In rebuttal, respondents/defendants produced Ghulam Yasin DW-1, Gull Muhammad DW-2, Allah Bakhsh Khan DW-3 and Bashir Ahmed DW-4. In documentary evidence, respondents/defendants tendered documents Ex.D-1 to Ex.D-13. While appearing in the witness box as PW-1 Mst. Saghiran Bibi deposed that her father name was Abdul Aziz; they are two sisters, two brothers; they are alive; her father had expired 10/12 years ago, who was owner of the land measuring 18 acres which was cultivated by her father Abdul Aziz; the marriage of both sisters was solemnized with consent and in the life time of their parents. After death of Abdul Aziz, their brothers used to cultivate the disputed land and to give "MUSTAJERI" i.e. Rs.10,000/12000/- to the plaintiffs.
The factum of disputed Tamleek came into their knowledge when the respondents/defendants did not give "MUSTAJERI". Further stated that Tamleek mutation being fictitious, forged and collusive is liable to be cancelled and they intends to take their right over the disputed property. PW-2 Elahi Bakhsh, PW-3 Ghulam Sarwar supported the version of petitioners/plaintiffs. It further appeared from the statement of DW-3 Allah Bakhsh that at the time of death, age of Abdul Aziz was 90 years.
8. No doubt, Mst. Amna Bibi, mother of the parties had withdrawn the suit to her extent but act of Mst. Amna Bibi does not fatal plaintiffs' case. Under the law, after denial of petitioners/plaintiffs of gift mutation through aforementioned affirmative evidence, the onus was shifted upon the beneficiaries, who were required to prove not only the mutation but also transaction of disputed gift. It has been held by August Supreme Court of Pakistan in case law titled "Aurangzeb through L.Rs and others Vs. Muhammad Jaffar and another" (2007 SCM R 236) that "heavy onus would lie on beneficiary to prove by convincing evidence satisfying judicial conscience of the Court that transaction shown to be a gift was executed by the donor in favour of the done". For a lawful gift, there had to be basic ingredients i.e. Offer, acceptance and delivery of possession but in the present case, defendant/DW-3 Allah Bakhsh and DW-4 Bashir Ahmed (defendant) did not utter any word about pre-requisites of valid gift while DW-1 Malik Ghulam Yasin and DW-2 Gull Muhammad deposed about the affidavit Ex.D-1 allegedly executed by Abdul Aziz donor. No revenue officials i.e. Patwari Halqa, Girdawar and Tehsildar/Revenue Officer who attested Tamleek mutation in their favour and witness/identifiers was produced by defence side. The evidence produced by respondents/defendants was mainly based on the affidavit Ex.D-1 for confirmation of disputed gift mutation Ex.D-2 allegedly executed by Abdul Aziz (father of the parties) with regard to disputed land in favour of respondents/defendants. The learned Courts below have dismissed the suit and appeal of the petitioners/plaintiffs by relying the documentary evidence i.e. Affidavit Ex.D-1, Khasra Girdawari and Parcha Khana Kasht Ex.D-4 to Ex.D-13 which indicate the possession of disputed land with respondents/defendants.
9. After survey of record and affirmative evidence produced by the parties, it is evident that being beneficiaries, respondents/defendants have failed to establish the ingredients of valid gift. As far affidavit Ex.D-1 is concerned, Para 2 of Ex.D-1 shows that affidavit is pertaining to Mutation No.89 dated 11.01.1989 and dated 27.02.1991 which are not disputed in this case. Relevant portion of writing of Para 2 of Ex.D-1 is reproduced: {{ URDU TEXT }}
10. Bare perusal of above mentioned Para reveals that this affidavit is in the shape of agreement. It is now well settled principle of law by the Hon'ble Apex Court that mere agreement and attestation of mutation does not convey any title to the vendee/donee and the very transaction must be proved independently through cogent evidence by the beneficiary claiming title thereunder. If for the sake of argument Ex.D-1 is presumed to be gift then under Section 54 of the Transfer of Property Act, the transfer of immovable property worth Rs.100/- or more can only be transferred by a registered instrument. The document liable to be registered and for registration did not operate or extinguish any right. Now, it is settled law laid down by the Hon'ble Apex Court of Pakistan that where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality. Reliance is placed upon case titled "Muhammad Anwar and others Vs. Mst. Ilyas Begum and others" (PLD 2013 SC 255).
11. No doubt, the name of respondents/defendants figured in Khasra Girdawar of disputed land which indicates that possession lies with respondents/defendants. Admittedly, the petitioners/plaintiffs are legal-heirs of Abdul Aziz. It has been held by Hon'ble Supreme Court of Pakistan in the case of "Khair Din Vs. Mst. Salman and others" (PLD 2002 SC 677) that brother had deprived his sisters fraudulently from the land which they inherited from their father, sisters shall be deemed to be in constructive possession of the property and their rights arising out of inheritance of their father could not be denied on limitation either under Article 142 or 144 of Limitation Act, 1908.
Reliance in this respect is also placed on case titled "Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar Napvi" (PLD 1990 SC 1).
12. The concurrent findings of two Courts below can be set at naught in exercise of revisional jurisdiction under Section 115 of C.P.C. Provided the same are result of misreading and non reading of evidence or found to be perverse and against the law. In present case, the findings recorded by two Courts below are not based on proper appraisal of evidence and correct appreciation of law involved in the matter of inheritance. Resultantly, this revision petition is accepted, impugned judgments and decrees of both the Courts below are set aside and suit of the petitioners/plaintiffs is decreed as prayed for with no order as to costs.