' ARSHAD MAHMOOD TABASSUM, J. --- Mst. Ahsan Bibi died issueless about one year and two months prior to the institution of the suit by the petitioners, which they instituted on 06.11.1997. The petitioners challenged through the said suit mutation of gift No. 1593, dated 13.04.1989, on behalf of the said Mst. Ahsan Bibi, whereby she had gifted her land measuring 33 kanals and 9 marlas to the respondents. Mst. Raj Bibi petitioner No. 1, real sister and other petitioners, nephews (sons of the brother of Mst. Ahsan Bibi) claimed that mutation of gift in favour of the respondents was a result of forgery and fraud and that the said Mst. Ahsan Bibi never gifted her property to them. It was further maintained that Mst. Ahsan Bibi was a Parda Nasheen Lady, who could not appear before the Patwari or any revenue officer and that the mutation in dispute was an attempt to deprive them (petitioners) of their legitimate right of inheritance out of the property of the said Mst. Ahsan Bibi.
2. The suit was contested by the respondents through filing their written statement, wherein they raised several preliminary objections including limitation etc. On facts, the maintained that the late Mst. Ahsan Bibi remained with them till her death and they had been serving her due to which she gifted her land to them and that ever since the mutation of gift, they were occupying the land in dispute and were enjoying its usufruct. They further maintained that during her life time, she was not even on speaking terms with the petitioners and that they knew about the impugned gift from the day first, but never raised any objection in this regard during seven long years.
3. Out of the divergent pleadings of the parties, the following issues were framed:--- ISSUES
1. Whether the plaintiffs are legal heirs of Mst. Ehsan Bibi deceased? OPP
2. Whether being legal heirs of Mst. Ehsan Bibi deceased, plaintiff No. 1 is owner in possession of 1/2 share and plaintiffs No. 2 to 4 are in possession of 1/2 share of the property of Mst. Ehsan Bibi? OPP
3. Whether the impugned mutation No. 1593 sanctioned on 13.04.1989 is illegal, based on fraud and ineffective qua the rights of the plaintiffs? OPP
4. Whether the suit is time-barred? OPD
5. Whether a valid Hibba was created in favour of the defendants? OPD
6. Whether the suit of the plaintiffs is based on male fide and the plaintiffs have not come to the Court with clean hands as such the suit is liable to be dismissed? OPD 7 Whether the plaintiffs are entitled to the decree for declaration and perpetual injunction as prayed for? OPP
8. Relief.
4. Both the parties produced their pro and contra evidence in support of their respective versions and ultimately the learned Trial Court decreed the suit vide judgment dated 12.02.2002. The respondents preferred an appeal against the said judgment and decree dated 12.02.2002, which was allowed by a learned Additional District Judge, Bahawalpur and the suit was dismissed by setting aside the judgment and decree dated 04.01.2005. It is in this background that the petitioners have assailed the judgment and decree, passed by the learned first appellate Court through the instant civil revision.
5. Learned counsel for the petitioners has argued that the petitioners had fully proved their suit by producing oral as well as documentary evidence and that the learned Trial Court had properly appreciated the evidence available on record and correctly applied the law applicable thereto, whereas the learned first appellate Court has set aside judgment and decree passed by the learned Trial Court in a slip shod manner without appreciation of material available on record and that the impugned judgment suffers from misreading and non-reading of evidence, produced by the parties.
6. Conversely, learned counsel for the respondents has fully supported the impugned judgment and decree.
7. I have heard learned counsel for the parties and myself perused the record with their able assistance.
8. The impugned mutation is dated 13.04.1989, which was challenged through filing suit on 06.11.1997. Such a suit could be filed within a period of six years, as provided under Article 120 of the Limitation Act, but the suit was filed after prescribed period of limitation. It is the claim of the petitioners/plaintiffs as laid in para 4 of the plaint that prior to five months of the institution of the suit, they came to know about the impugned mutation, but the sole witness of the petitioners, namely Syed Manawar Shah one of the plaintiffs, while appearing as P.W.1 has stated during cross- examination as under:- ' Thus, the above reproduced portion of the statement of P.W.1 falsifies the claim of the petitioners as made in para No. 4 of the plaint that they came to know about the impugned mutation five months prior to the institution of the suit. However, since the petitioners/plaintiffs could file such a suit within a period of six years from the date of knowledge, hence, the suit filed by them is held to be within time. In this regard, findings of the learned first appellate Court appear to be erroneous.
9. The petitioners claimed that the impugned gift was result of fraud and that some other woman was produced in place of Mst. Ahsan Bibi and thereby impugned mutation was got entered and attested. To rebut this claim of the petitioners/plaintiffs and to establish valid gift in their favour, the respondents/defendants produced as many as ten witnesses including Bashir Ahmad,. Record Keeper (D.W.1), Haji Muhammad Aslam Patwari, (D.W.2), who proved rapatt Roznamcha, Sikander Ali Patwari Revenue (D.W.3) who entered the impugned mutation and produced the same before the concerned revenue officer, Muhammad Sharif Gardawar (D.W.4), Khalil-ur-Rehman (D.W.5), Ghulam Qadir, revenue officer (D.W.6), Abdul Hakeem (D.W.7) and Abdul Jabbar (D.W.8), attesting witnesses of the mutation, Anwar Shah maternal uncle of the respondents (D.W.9), who accepted the gift on behalf of the respondents, as they were minors at the relevant time and Mukhtar Shah (D.W.10), one of the defendants himself. HMI these D.Ws. Fully supported the claim of the respondents regarding transfer of the land by way of gift in their favour. Some discrepancies in their statements, as highlighted by the learned Trial Court are there, which are minor in nature and were bound to occur due to lapse of time and loss of memory and were inconsequential in the circumstances of the case. Their testimonies could not be brushed aside as has been done by the learned Trial Court. The official acts performed in the normal course of nature have got presumption of truth, as provided by Article 129 Illustration (e) of the Qanoon-e-Shahadat Order, 1984. As against the above evidence, produced by the respondents, the solitary statement of Syed Manawar Shah P.W.1 cannot in any way be given preference.
10. The claim of the respondents that they rendered services for Mst. Ahsan Bibi and looked after her during her old age, due to which, out of love and affection, she gifted her property to them. They have further maintained in para 6 of their written statement that Mst. Ahsan Bibi was not on speaking terms with the petitioners. This claim of the respondents finds corroboration from the statements of Anwar Shah D.W.9, who during examinationin-chief states This fact was not rebutted by the petitioners and their learned counsel even did not suggest to the said D.W.9 that the above portion of his statement was false. Similarly, Mukhtar Shah (D.W.10), one of the defendants during his examination in chief finishes justification for the gift made by Mst. Ahsan Bibi in his favour and in favour of his sister, namely Mst. Ameer Bibi in the following words:--- ' He further states ' There is no rebuttal of the above assertions of D.W.10.
11. It is noteworthy that as pointed out above, P.W.1 has candidly admitted that he came to know about the impugned mutation four years prior to the institution of the suit and prior to the death of Mst. Ahsan, Bibi. Had the respondents committed any fraud with the said Mst. Ahsan Bibi and had fraudulently got attested mutation in eht their favour regarding her property, petitioners/plaintiffs must have informed the said Mst. Ahsan Bibi about the fraud and she should have been the first person to challenge the validity of the impugned mutation. Instead the petitioners kept quiet during her life time and did not challenge the impugned mutation. The presumption would be there that had they challenged the impugned mutation in her life-time, she would have not supported them rather would have come forward to depose that she had validly gifted her land to the respondents. The acquiescence on the part of the petitioners for such a long time despite having come to know about the impugned mutation, establishes valid disposition of her property by Mst. Ahsan Bibi in favour of the respondents through mutation of gift.
12. In the light of above discussion no room is left to doubt that mutation in dispute is a valid document to which no illegality can be attributed. The learned first Appellate Court has, therefore, rightly decided issue No. 3 in favour of the respondents to which no exception can be taken. In view of the above findings on issues No. 3, issue No. 5 is also bound to be decided in favour of the respondents/defendants, because the element of fraud is not visible in the said transaction, whereas the offer on the part of the Mst. Ahsan Bibi, acceptance on behalf of the respondents through their maternal uncle, namely Anwar Shah D.W.9 and delivery of possession of the gifted land stand established from the evidence oral as well as documentary produced by the respondents.
12. Learned counsel for the petitioners has laid much emphasis on the fact that Mst. Ahsan Bibi was an illiterate and Parda Nasheen lady, hence, disposition of her property should be subject to strict scrutiny and availability of independent advice to her. In this regard, it is observed that the petitioners did not challenge the impugned gift during her life-time. Moreover, during her life time, she herself never challenged the impugned gift, meaning thereby that she did not claim any type of misrepresentation or fraud on the part of the respondents regarding the impugned gift, hence, being Parda Nasheen lady and non-availability of independent advice to her would have been relevant, if she herself had challenged the validity of impugned mutation during her life time or had it been the claim of the petitioners that through misrepresentation and fraud, the respondents had produced Mst. Ahsan Bibi before the revenue authorities for attestation of the impugned mutation.
This is not the case of the petitioners.
13. In the light of above discussion, no illegality or irregularity has been detected in the impugned judgment, passed by the learned first Appellate Court, which is hereby upheld. Consequently, the instant petition fails and the same is hereby dismissed. Civil revision .