KHALID MAHMOOD MALIK, J:- This revision petition is directed against the judgment and decree dated 10.09.2008, passed by learned Additional District Judge, Chishtian, District Bahawal Nagar, whereby he accepted the appeal of respondents/defendants, filed against the judgment and decree dated 30.01.2008, delivered by learned Civil Judge Ist Class, Chishtian, whereby he decreed the suit of the petitioner/plaintiff for declaration.
2. Precisely, the facts germane for the disposal of this revision petition are that petitioner/plaintiff brought a suit for declaration in which he has challenged the tamleek mutation No.953 dated 23.09.1991 in favour of respondents/defendants with regard to agricultural land measuring 12 kanals situated in khata No.369/361 Mauza Qabool Fatani being void, illegal, collusive, having no legal effect qua the right of the petitioner/plaintiff. The suit was contested by the respondents/defendants through written statement. On pleadings learned trial court framed relevant issues and called upon the parties to adduce evidence in support of their respective claims. At conclusion of case, the learned Civil Judge, Chishtian decreed the suit of petitioner/plaintiff vide judgment dated 30.01.2008. Appeal filed by respondents/defendants was accepted by learned Additional District Judge, Chishtian through the impugned judgment and decree dated 10.09.2008. Hence this revision petition.
3. Learned counsel for the petitioner has argued that learned Appellate Court has acted illegally and material irregularity while passing the impugned judgment and decree which is result of misreading and non-reading of evidence; that learned Appellate Court has not appreciated the evidence in its true perspective as respondents/defendants have failed to establish the basic ingredients of valid gift i.e offer, acceptance and delivery of possession; the documentary evidence adduced by the petitioner/plaintiff i.e. Copies of Khasra Girdawari and Record of Rights (Ex.P-2 to Ex.P-6) show that possession lies with the petitioner/plaintiff; that the respondents/defendants have failed to produce any evidence in rebuttal. Lastly, he prayed that suit of the petitioner/plaintiff be decreed as prayed for by setting aside the impugned judgment and decree dated 10.09.2008.
4. No one has appeared on behalf of the respondents/defendants despite of the fact that name of their counsel is duly reflected in the cause list and case falls under the category of old cases, therefore, exparte proceedings are initiated against the respondents/defendants.
5. Having heard learned counsel for the petitioner and perusing record, it is observed that claim of the petitioner/plaintiff was that 10 years earlier, his wife filed a suit for maintenance against him in the Court of Judge Family Court, Chishtian. He put his appearance before Judge Family Court and suit was decided on the basis of compromise and since then, plaintiff/petitioner was leading his family life happily. At the time of ripping wheat crop Rabi 2001, respondents/defendants started to claimed their ownership on the basis of impugned Tamleek Mutation. Thus, the factum of impugned mutation of gift came into his knowledge which was based on fraud, misrepresentation and forged. As per respondents/defendants' version the petitioner/plaintiff is their father and disputed land was gifted to them as compensation in lieu of suit for maintenance allowance which was filed by their mother. Later on suit was withdrawn the basis of compromise. In support of their versions, both the parties produce their evidence. From the petitioner/plaintiff's side Ameer Khan appeared as PW-1 and Muhammad Yar (Plaintiff) as PW-2. In documentary evidence, the petitioner/plaintiff tendered copy of disputed tamleek mutation No.953 Ex.P-1, copy of register Haqdarane-Zameen for the year 1998-99 Ex.P-2, copy of Khasra Girdawari Ex.P-3, copy of Khasra Girdawari from "Rabi 2000 to Kharif 2004" Ex.P-4, copy of plaint of suit titled "Lal Sain etc Vs. Muhammad Yar" (suit for recovery of maintenance allowance) Ex.P-5 and copy of Khasra Girdawari "Kharif 2003 to Kharif 2007" as Ex.P.-6. In rebuttal, respondents/defendants, examined Mirza Sajjad Babar, Tehsildar as DW-1 and Ghulam Qadir as DW-3 whereas Muhammad Mumtaz, one of the respondent/defendant appeared as DW-2. At appellate stage, the respondents/defendants moved an application for additional evidence to produce certified copy of the order of the Judge Family Court, Chishtian dated 19.09.1991, which was allowed. In consequence thereof, respondents/defendants produced copy of said order Ex.D-1.
6. Admittedly, petitioner/plaintiff was owner of disputed land and he is father of respondents/donees. Under the law, after denial of petitioner/plaintiff of gift mutation through aforementioned affirmative evidence, the onus was shifted upon the beneficiary, 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 the transaction shown to be a gift was executed by the donor in favour of the donee." For a lawful gift, there had to be basic ingredients i.e. Offer, acceptance and delivery of possession but in the present case, Mumtaz Ahmed respondent/defendant (DW-2) and Ghulam Qadir (DW-3) did not utter any word about pre-requisites of valid gift. From the evidence, it appears that Din Muhammad and Shah Muhammad were the identifiers of the impugned Tamleek mutation. Shah Muhammad is alive and Patwari. The respondents/defendants did not produce him in support of their version. Record further reveals that tamleek mutation in question (Ex.P-1) was entered by Abdul Ghani, Patwari, who was also not examined as witness by respondents/defendants. Mirza Sajjad Babar, Tehsildar (DW- 1) deposed that the mutation was produced and both the parties appeared before him. Mutation was sanctioned on 23.09.1991, after the statement of parties in presence of identifiers. In cross- examination, DW-1 admitted that he does not know the petitioner/donor. He does not remember whether it was morning time or evening. He added that the disputed mutation was sanctioned at the spot. He further stated that he has no knowledge about the proceedings of the possession at the spot. Muhammad Mumtaz defendant/donee negated the version of DW-1 by stating in crossexaamination that the mutation was sanctioned at Chishtian and only Patwari and Girdawar had visited the spot. Copies of record of rights and Khasra Girdawari (Ex.P-2 to Ex.P-6) pertaining to the disputed land indicate that the possession of the property was not delivered to the donees and disputed property is in possession of petitioner/plaintiff. Mumtaz Hussain, respondent/defendant (DW-2) deposed that he lodged Rapat with Revenue Patwari regarding the delivery of possession but no such report was produced in documentary evidence. It is now well settled principle of law by this Court and Hon'ble Supreme Court of Pakistan that "mere 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". Reliance in this respect is placed on "NOOR MUHAMMAD and others vs. Azmat-e-Bibi" (2012 SCM R 1373) and "Mst. Kishwar Vs. Abdul Dehyan and others" (2004 CLC 203).
7. The main stance of respondents/defendants was that the suit land was gifted to them as compensation in lieu of suit for maintenance which was filed by respondents and their mother and later on suit was withdrawn on the basis of compromise. Ex.D1 is order of the learned Judge Family Court, Chishtian, wherein no such condition is imposed. The learned Additional District Judge, Chishtian has reversed the findings of learned Civil Judge and took the views and observed that (i) the gif was being made by the father to the minor sons, therefore, the delivery of possession was not necessary (ii) that during the pendency of the case, the respondents/defendants filed an application for taking special Oath with regard to tamleek mutation by Shah Muhammad Patwari, who is cousin of the petitioner/plaintiff but said application was dismissed vide order dated 23.04.2007. Similarly, application moved by the respondents/defendants for comparison of thumb impression of the petitioner/plaintiff was also dismissed vide order dated 04.04.2005. As far as views and observations of the learned Appellate Court are concerned, the aforementioned principle is applicable to those cases where son/donee is a minor and not when the property was being gifted by the father to a major son. In the present case, Muhammad Mumtaz, defendant/respondent admitted in cross-examination that he was 33/34 years old, meaning thereby that he was major at the time of alleged gift. It has been held in case titled "MST. FARIDA SAJID V. SYED MUHAMMAD BAQIR ALI SHAH, A.I.G. RAILWAY POLICE, ETC" (2000 SD 518), that:- "Principle that delivery of possession would not be necessary when gift was made by father to sons.
Applied only when gift is made to a minor son. It would not apply when gift is made in favour of major son."
Reliance is also placed on "Ghulam Hassan and others v. Sarfraz Khan and others" (P.L.D. 1956 S.C.
(Pak.) 309). Admittedly, both applications for taking oath on Holy Quran and comparison of thumb impression of petitioner/plaintiff were dismissed vide impugned orders dated 04.04.2005 and 23.04.2007 and the orders have not been challenged by the respondents/defendants before higher forum. In case referred supra titled Noor Muhammad's case, the Hon'ble Supreme Court of Pakistan while considering the question to decide the matter to take Oath on Holy Quran, has held that "Bringing the Holy Quran in such matters besides being alien to law could not be a substitute for leading positive evidence on the point in issue. In Muhammad Arshad v. The State (PLD 2011 SC 350), "the act of a DSP/Investigating Officer who gave a finding of innocence in favour of an accused on the basis of Oath on Holy Quran taken in a Mosque, was deprecated by this Court".
8. The findings and observations of learned Civil Judge are found to be based on proper appreciation of evidence while the appellate court overlooked the relevant law on the subject and has not properly exercised its powers. Resultantly, the instant revision petition is accepted and impugned judgment and decree dated 10.09.2008, passed by the learned Addl. District Judge, Chishtian are set aside and the judgment and decree dated 30.01.2008, passed by learned Civil Judge Ist Class, Chishtian are upheld. No order as to costs.