' ABDUS SATTAR ASGHAR, J.--- This civil revision under section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 7-5-1997 passed by learned Civil Judge Sargodha whereby petitioner's suit for mandatory injunction was dismissed. It further assails judgment and decree dated 27-1-2005 passed by learned Additional District Judge Sargodha whereby petitioner's appeal against the judgment and decree of learned Civil Judge was also dismissed.
2. Succinctly facts leading to this civil revision are that Sadar Abbas petitioner filed a suit for mandatory injunction against the Revenue Authorities- i.e. Respondents Nos.1 to 3 claiming that his father namely Ata Muhammad transacted an oral gift of land measuring 281 Kanals in his favour and also got entered the said transaction in the Mutation Register through Patwari Halqa but the Revenue Authorities were reluctant to sanction the mutation. Defendants Nos.5 to 8 and their mother Mst.Khurshid Begum defendant No.4 (now deceased and represented by respondents Nos.4 to 7) were impleaded on their application under Order I, rule 10 of Code of Civil Procedure, 1908. Respondents contested the suit by filing written statement raising controversies on facts and law. The learned trial Court after framing the issues on the basis of divergent pleadings of the parties and recording their evidence dismissed the suit vide judgment and decree dated 7-5-1997 mainly on the grounds that Ata Muhammad donor (plaintiff No.2) did not appear in the witness box to support the gift and that civil court lacked jurisdiction in the matter in terms of section 172 of the West Pakistan Land Revenue Act, 1967. Petitioner challenged the judgment and decree of the civil court through appeal which was also dismissed by the learned Additional District Judge Sargodha vide judgment and decree dated 27-5-1998. Petitioner impugned both the judgments and decrees of the learned Courts below through Civil Revision No.1172 of 1998 which was accepted by this Court vide judgment dated 15-4-2002 and the case was remanded to the learned Additional District Judge Sargodha in the following manner:--- "5. I have considered the submission of the learned counsel for the parties and have also examined the record. The whole thrust of the impugned judgments and decrees has been on the fact that Ata Muhammad, donor i.e. Plaintiff No.2 failed to appear as a witness to support the impugned gift. It is the joint case of the parties that this observation of learned courts below on merits of the case is incorrect. Ata Muhammad deceased being plaintiff No.2 had appeared as PW-1 and supported the oral gift in favour of his minor son i.e. Petitioner Sadar Abbas. In view of this fact, there was no need of a suit for declaration. However, learned courts below placed a lot of weight on the form of the suit and absence of jurisdiction in the Civil Court. Since the main litigated question involved in the case qua the gift in favour of the petitioner was prima fade borne out by evidence of the parties including that of plaintiff No.2 as PW-1, I, therefore, deem it appropriate not to give a final judgment on the merits of the case including the question of jurisdiction and form of the suit. This is because I intend to set-aside the impugned judgment and decree dated 27-5-1998 passed by learned Addl. District Judge in appeal and remand the case back to learned Additional District Judge for redecision. I also deemed it appropriate to leave all questions open for the learned Additional District Judge to redecide the same in accordance with law by treating the appeal of the petitioners, pending before him.
6. In view of the above, I accept this petition and set aside the impugned judgment and decree dated 27-5-1998 with the observation that the learned Additional District Judge committed material irregularity by observing that Ata Muhammad deceased i.e. Plaintiff No.2 had not appeared in the witness-box to support the oral gift in favour of his minor son i.e. The petitioner who was plakntiff No.1 because the record shows that plaintiff No.2 had appeared as PW-1 to support the gift in favour of plaintiff No.1. The case is accordingly remanded to learned Additional District Judge, who shall redecide the appeal on all questions and shall also examine the effect of mutation inheritance in favour of heirs during pendency of the litigation. The parties shall be at liberty to raise all questions of law and facts before learned appellate court and appeal shall be deemed to be pending before him. This petition is accepted in above terms. Parties are left to bear their own costs. Parties are directed to appear before learned District Judge Sargodha on 14- 5-2002, who shall entrust the appeal to any learned Additional District Judge in Sargodha for its decision in accordance with above observation."
3. In the post-remand proceedings the learned Additional District Judge Sargodha again dismissed the appeal vide impugned judgment and decree dated 27-1-2005 and upheld the judgment and decree dated 7-5-1997 passed by learned Civil Judge Sargodha. Petitioner being dissatisfied assailed both the impugned judgments of the learned Courts below through this civil revision. It was allowed by this Court vide order dated 5-6-2012 and the case was again remanded to the learned Additional District Judge Lahore. Respondents challenged the judgment dated 5-6- 2012 of this Court before the Hon'ble Supreme Court of Pakistan through Civil Appeal No.118-L of 2013 which was allowed by the Hon'ble apex Court with the concurrence of the learned counsel for the parties and this Court was required to decide this civil revision afresh vide order dated 27-6-2013 in the following manner:- "Having argued the case at some length, both the learned counsel concur that let the matter be remanded to the learned High Court to decide the Civil Revision No.267/2005 afresh and the evidence led by the parties pursuant to the impugned remand order may also be considered by the said Court.
2. The stand taken by learned counsel for the parties is fair. Consequently, this appeal is allowed and the impugned judgment is set aside. The afore-referred Civil Revision shall be deemed to be and decided in terms of the aforementioned arrangement between the parties. Since it is an old matter, the learned High Court, we are sanguine, shall decide the same preferably before the year is out."
4. It is argued by learned counsel for the petitioner that observations made and directions given by this Court in the remand order dated 15-4-2002 have not been duly appreciated or complied with by the learned Appellate Court in the impugned order dated 27-1-2005; that the learned Appellate Court has failed to examine the whole evidence of the parties in its true perspective; that learned Appellate Court did not appreciate that Ata Muhammad (plaintiff No.2) father of Sadar Abbas petitioner while appearing in the witness box as PW-1 categorically acknowledged the transaction of gift in favour of his minor son Sadar Abbas petitioner; that donor himself was plaintiff No.2 in the suit therefore question of declaration does not arise; that right accrued in favour of the petitioner on the basis of oral gift was not denied by the Revenue Authorities rather sanction of mutation was being delayed therefore petitioner filed suit for mandatory injunction seeking a direction to the respondents/Revenue Authorities to fulfil their legal obligations and that facts of the case at that moment did not necessitate filing of a suit for declaration; that inaction on the part of the concerned Revenue Authorities was mala fide and unwarranted in law therefore bar on jurisdiction of civil court in terms of section 172 of the West Pakistan Land Revenue Act, 1967 do not attract in the circumstances of the case; that Ata Muhammad died during pendency of the appeal and his inheritance mutation in favour of the respondents was passed after decision of the appeal during pendency of earlier civil revision before this Court therefore petitioner's suit could not be dismissed on account of any defect in the form of the suit; that respondents' plea that Ata Muhammad was lunatic is not substantiated through any reliable speck of ocular or documentary evidence; that respondents' plea of lunacy of Ata Muhammad and undue influence are self contradictory and destructive to each other; that the learned Appellate Court has failed to resolve material questions of law and facts in the light of parties' evidence available on the record; that concurrent findings of the learned Courts below based on misreading and mis-appreciation of evidence, causing serious injustice and suffering from legal and factual infirmities are untenable as well as amenable to the revisional jurisdiction of this Court and liable to set aside.
5. It is resisted by learned counsel for the respondents with the contentions that Ata Muhammad in his old age was suffering from a prolonged ailment was not a man of disposing mind rather he was undue influence of the petitioner's mother namely Mumtaz Begum; that object of the impugned oral gift by Ata Muhammad in favour of his only son Sadar Abbas petitioner from Mumtaz Begum was to deprive his daughters (respondents Nos.4 to 7) from his first wife namely Khurshid Begum; that Ata Muhammad donor was not in possession of the land allegedly gifted out in favour of the petitioner and possession was never delivered to the petitioner; that the petitioner was minor at the time of alleged gift; that there is no speck of evidence on behalf of the petitioner with regard to the acceptance of the alleged gift i.e. One of the vital ingredients to constitute a valid gift; that Mumtaz Begum mother of the petitioner did not enter in the witness box to substantiate any acceptance of gift on behalf of the minor petitioner; that by any stretch of imagination impugned oral gift could not be termed as valid or a lawful transaction; that respondents have questioned validity of the alleged oral gift by filing the contesting written statement raising material questions of law and facts therefore simple suit for mandatory injunction without seeking declaration of impugned title was not maintainable; that petitioner's suit was dismissed vide judgment and decree dated 7-5-1997 passed by learned Civil Judge Sargodha which was assailed through an appeal; that during pendency of the appeal Ata Muhammad died on 10-5-1997; that appeal was dismissed by Additional District Judge Sargodha vide judgment and decree dated 27-5-1998; that after dismissal of the appeal impugned oral gift mutation was cancelled by the revenue officer vide order dated 29-5-1998 and inheritance mutation of Ata Muhammad entered on 9-10-1997 was attested on 29-5-1998; that petitioner never questioned the cancellation of oral gift mutation through order dated 29-5-1998 and attestation of inheritance mutation dated 29-5-1998 in favour of the respondents including the petitioner as legal heirs of Ata Muhammad before any court of law; that since the inheritance mutation in favour of the respondents and other legal heirs including the petitioner was sanctioned under the rule of Mohammadan Law therefore doctrine of lis pendens is not applicable qua the inheritance mutation dated 29-5-1998; that concurrent findings of facts on the controversy of gift recorded by learned Courts below do not suffer from any misreading or non-reading of evidence, legal infirmity or jurisdictional error therefore petitioner has no case to invoke the revisional jurisdiction of this court.
6. Arguments heard. Record perused.
7. Record reveals that out of divergent pleadings of the parties learned trial Court framed following issues:-
(1) Whether the plaintiffs had got no cause of action and locus standi to file the suit? OPD
(2) Whether this court lacked jurisdiction to adjudicate upon the matter? OPD
(3) Whether plaintiffs had contradictory status between them, hence the suit was not maintainable? OPD
(4) Whether the suit was bad for non joinder of necessary parties? OPD
(5) Whether plaintiff No.2 was a lunatic? If so, its effect? OPD
(6) Whether the instant suit had incorrectly been valued for the purposes of court fee and jurisdiction, if so, what was the correct valuation? OPD.
(7) Whether the suit is false, vexatious, mala fide and defendants are entitled to special costs?
OPD
(8) Whether a valid gift of the suit land had been made between the plaintiffs and they are entitled to the decree as prayed? OPP.
(9) Relief.
8. Parties led their pro and contra evidence in support of their respective claims. The most litigated question in this case is the alleged oral gift in favour of Sadar Abbas petitioner. This pivotal controversy between the parties has been reduced in the form of Issue No.8 by the learned trial Court. None of the parties has ever raised any objection regarding construction of issue No.8. I therefore have a reason to believe that parties consciously led their respective evidence to discharge the burden of proof as well as to resist this issue. Respondents' objection with regard to form of the suit therefore having lost its efficacy is devoid of any force and thus repelled.
9. In order to adjudge the validity of impugned oral gift by Ata Muhammad in favour of the petitioner it will be appropriate to refer to the parties' ocular and documentary account available on the record. Petitioner has produced copy of mutation No.804 dated 7-2-1993 (Exh.P11) allegedly got entered by Ata Muhammad in favour of the petitioner by appearing and making a statement before Patwari Halqa that he has gifted out his land measuring 148 kanals in favour of the petitioner and that possession has also been changed at the spot. Entries of mutation (Exh.P11) pertain to 5/6 share equal to 148 kanals of the 'salam khata' of Ata Muhammad measuring 177-1/2 kanals. In the post-remand proceedings petitioner examined Muhammad Akbar Patwari Halqa who produced copy of mutation No.804 dated 7-2-1993 (Exh.P11) and copy of rapt roznamcha waqiati No.206 dated 7-2-1993 (Exh.P12). In mutation (Exh.P11) Patwari concerned had also scribed `Andraj Kaifiat Babat Malkiat Ata Muhammad' i.e. Total holding measuring 281 kanals. During cross- examination Patwari Halqa after consulting the revenue record stated that at the time of entry of mutation (Exh.P11) land measuring 177 kanals 10 marlas owned by Ata Muhammad stood mortgaged in favour of Zarai Taraqiati Bank Limited Bhalwal and that out of said mortgaged land 5/6 share was of Ata Muhammad and 1/6 share was of Khurshid Begum wife of Ata Muhammad.
He categorically stated that mutation No.804 (Exh.P11) pertained to area measuring 5/6 share i.e. 148 kanals only. Rapt roznamcha waqiati No.206 dated 7-2-1993 (Exh.P12) also bears identical declaration. It is therefore obvious that petitioner's own produced documentary evidence is contradictory to his assertion in the plaint that Ata Muhammad had orally gifted out land measuring 281 kanals.
10. The entries of rapt roznamcha waqiati No.206 (Exh.P12) and gift mutation No.804 (Exh.P11) clearly manifest that it was a report of some oral gift already transacted by Ata Muhammad in favour of the petitioner. However it fails to mention any time, date or place of the alleged transaction of oral gift by Ata Muhammad in favour of the petitioner. Ata Muhammad himself appeared in the witness-box as PW-1 and stated that about 1-1/2 years back he orally gifted out his land situated in Chak No.19. In his statement Ata Muhammad did not mention any date, time or place of making oral gift in favour of the petitioner however deposed that after the oral gift he called Patwari Halqa and paid him a sum of Rs.10,000 and got entered the mutation but thereafter Patwari Halqa turned hostile. He further stated that thereafter he along with Zafar Iqbal Chairman Union Council and Khizar Hayat purchased the stamp paper and executed an agreement (Exh.P2). The alleged agreement (Exh.P2) is an acknowledgment of gift executed by Ata Muhammad on 26-7-1993 in favour of the petitioner. It reveals that gift mutation was allegedly got entered by Ata Muhammad in favour of the petitioner with Patwari Halqa about 8/9 months back and that Patwari Halqa was reluctant to get attested the mutation. Ata Muhammad referring to his ailment and uncertainty of life acknowledged oral gift through Exh.P2. Even contents of Iqrarnama (Exh.P2) do not mention about date, time or place of alleged oral transaction of gift. Petitioner has not produced the stamp vendor or Syed Zakir Hussain deed writer/scribe of Iqrarnama (Exh.P2). It is attested by Zafar Iqbal Member and Khizar Hayat Chairman Union Council. Khizar Hayat attesting witness of (Exh.P2) is also not examined. Only Zafar Iqbal attesting witness is produced as PW-2. He has merely stated about execution of agreement (Exh.P2) by Ata Muhammad in his presence and also signed by him.
In examination in chief he has not uttered even a single word about transaction of oral gift by Ata Muhammad in favour of the petitioner. Area of gifted land is also not mentioned in his statement.
Besides above petitioner has also produced PW-3 to PW-9. None of the said witnesses stated about any date, time or place of the alleged oral gift of the suit land by Ata Muhammad in favour of the petitioner. Admittedly Ahmed Khan (PW-3), Muhammad Khan (PW-4) and Nazir (PW-7) are brothers of petitioner's mother. Their testimonies lacking intrinsic value and inherent worth with regard to the transaction of oral gift are not confidence inspiring. The said three witnesses being closely related to the petitioner are interested witnesses and thus not safely reliable. Agreement (Exh.P2) therefore appears to be an afterthought fabrication. Ata Muhammad in his statement as PW-2 did not mention about area of the land allegedly gifted out by him in favour of the petitioner.
He also did not state that Patwari Halqa had wrongly entered the area measuring 148 kanals in alleged mutation No.804 (Exh.P11). Careful appraisal and analysis of the petitioner's ocular and documentary evidence therefore fails to establish that Ata Muhammad had validly gifted out land measuring 281 kanals in favour of the petitioner.
11. It is important to note that in this case real object of the alleged oral gift by Ata Muhammad in favour of the petitioner is a most relevant fact to be looked into for safe administration of justice. It is admitted on the record that petitioner is the only son of Ata Muhammad from his second wife namely Mumtaz Begum and respondents Nos.4 to 7 are real daughters of Ata Muhammad from his first wife namely Khurshid Begum. It is common practice among agriculturists to deprive females from their rights of inheritance and the same has been deprecated by the Hon'ble Supreme Court of Pakistan in case of Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1). The alleged oral gift by Ata Muhammad in favour of the petitioner patently appears to be an attempt to deprive of his real daughters from their expected legal share in his inheritance. In this regard ill will of Ata Muhammad is reflected in the contents of alleged agreement (Exh.P2) wherein it is scribed that he has no male or female descendent (the word female later on was struck of) except Sadar Abbas as real son. Even in the opening statement of his testimony Ata Muhammad (PW-1) categorically stated that he does not intend to give even a single marla from the suit land to any one except the petitioner. It therefore clearly manifest that object of the alleged oral gift was to exclude the respondents (daughters) from his heirship.
12. It is also noteworthy that Ata Muhammad donor was suffering from a prolonged ailment.
Although there is no direct or strong evidence to the effect that he was mentally disordered person however it is on the record that his son in law used to take him to mental hospital for treatment of his mental faculties. During cross-examination Ata Muhammad (PW-1) stated that he was on bed for the last about 8/9 years however declined to disclose nature of his ailment. Even in the contents of alleged agreement (Exh.P2) he has categorically referred to his constant ailment as well as uncertainty of life. In the peculiar circumstances it is obvious that Ata Muhammad had no independent advice at the time of alleged oral gift in favour of the petitioner to disinherit his four daughters/the respondents. The alleged transaction of oral gift in favour of the petitioner therefore appears to be sham and void. Needless to say that no gift can be created or pleaded if the sole object for creation whereof is to deprive the heirs to inherit the property as per their shares contemplated by the Holy Qur'an.
13. There is no cavil to the proposition that necessary effect of such like gift is disinheritance of the one or the other heirs of the donor but it should be the effect and not the object of such a transaction. The Hon'ble Apex Court in the case of Mukhtar Ahmad v. Mst.Rasheeda Bibi and another (2003 SCMR 1664) has candidly observed that in the wake of gift the females in the family are likely to be deprived of the course of inheritance therefore the Courts are not divested of the powers to scrutinize the reasons and justifications of gift so that no injustice could be done to the rightful owners. A gift intended to disinherit a heir being a shame and void transaction therefore is nugatory in the eye of law. Reliance be placed upon (i) Raja Muhammad Yasin v. Zaitoon Begum and others (1993 CLC 2448 Lahore) and (ii) Sardar Ahmed Khan and others v. Mst.Zamroot Jan (PLD 1950 Peshawar 45). It may be expedient to reproduce an extract from the case of Sardar Ahmed Khan and others (supra) which reads below:- "An intelligent study of the Muslim Law regarding the testamentary disposition possessed by a Muslim will show that it is the policy of the Muslim Jurists to prevent any interference with the course of deVolution of property amongst the testator's heirs as laid down in the Holy Qur'an. The law would be the same if a certain transaction, though on the face of it, a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle a gift intended to disinherit an heir would be a sham transaction, and, therefore, nugatory. The gift in order to be effective should be genuine transaction and not merely a plan to achieve some ulterior object. It is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donor but then it should be the effect and not the real object of the gift. If the real object of the gift is disinheritance of an heir, it will be, in my opinion, bad in law."
14. It is vehemently argued by learned counsel for the petitioner that in case of a gift in favour of minor child by father acceptance thereof or delivery of possession is not required rather mere declaration of gift is the only requirement of law and that presumptive heirs have no right to resist such a declaration as the principle of spes successionis is not applicable under the law of inheritance in Islam. Learned counsel for the petitioner has placed reliance upon (i) Ghulamullah Shah and 5 others v. Officer on Special Duty, Federal Land Commission and 2 others (PLD 1980 Karachi 122), (ii) Samo and 5 others v. The Officer on Special Duty, Federal Land Commission, Rawalpindi and 4 others (1981 CLC 1308) and (iii) Chief Land Commissioner and another v. Maula Dad and others. (1978 SCMR 264). Careful reading of above cited cases reveals that facts involved in the said cases are altogether distinct and distinguishable from the facts of this case. In all the said cases transaction of gift in favour of legal heirs was questioned by the Land Reforms Authorities for the purposes of implementation of land reforms and not by any of the expected legal heir of the donors therefore dictums laid down in the cited cases cannot be siphoned unto the facts of this case and thus of no avail to the petitioner.
15. There is no cavil to the proposition that in terms of Para 52 of the Muhammadan Law the right of presumptive heir comes into existence on the death of the ancestor and a heir-apparent has no right to restrain full owner of the property to dispose it of in the manner he likes however fact remains that in this case the alleged oral gift was made in favour of the minor petitioner by his father Ata Muhammad. In this regard it may be expedient to reproduce the Para 155 of the Muhammadan Law which reads as under:- "Gift to a minor by father or other guardian.--- No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give."
' It is evident from the above provision that formal delivery of possession is not required when a father makes a gift in favour of his minor child however the expression "All that is necessary is to establish a bona fide intention to give" used in the above provision is of great importance. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Hassan and others v. Sarfraz Khan and others (PLD 1956 SC 309) observed as under:- "In case of gift by father or guardian in favour of minor, if a real and bona fide intention to make a gift is proved, law will be satisfied without a change of possession."
Mere declaration of a gift by a father in favour of his minor child therefore would not fulfil the essentials of a valid gift in terms of B Para 155 of the Muhammadan Law unless a bona fide intention to give is established on the record. As discussed above in this case petitioner has not been able to establish a bona fide intention of the donor to make the gift in his favour rather it has been conversely established that object of the donor was to deprive his real daughters/the respondents Nos.4 to 7 of their expected right of heirship violative to the injunctions of Islam.
16. There is yet another important aspect of this case. It is on the record that consequent upon the dismissal of the petitioner's appeal in this case alleged mutation No.804 (Exh.P11) was cancelled by the Revenue Officer vide order dated 29-5-1998 and inheritance mutation of Ata Muhammad in favour of his legal heirs including the petitioner and the respondents Nos.4 to 7 was sanctioned on the same day i.e. 29-5-1998. It is important to note that petitioner has never challenged the vires of order dated 29-5-1998 passed by the Revenue Officer whereby mutation No.804 was cancelled.
Simultaneously he has also never questioned the validity of inheritance mutation of Ata Muhammad attested on 29-5-1998 in favour of the parties which still holds the field. Needless to say that inheritance mutation dated 29-5-1998 was sanctioned under the rule of Muhammadan Law therefore doctrine of lis pendens is not applicable against the sanction of inheritance mutation. The principle of lis pendens is regulated under section 52 Chapter II of the Transfer of Property Act, 1882. Section 2 of the Act ibid clearly contemplates that nothing in the second chapter of this Act shall be deemed to effect any rule of Muhammadan Law.
17. Crux of the above discussion is that concurrent findings of the learned Courts below on the controversies of facts and law do not suffer from any misreading or non-reading of evidence, factual or legal infirmity or jurisdictional error. Impugned judgments and decrees passed by learned courts below therefore are unexceptionable and do not call for any interference by this Court. Petitioner has no case to invoke the revisional jurisdiction of this Court.
18. For the above reasons this civil revision having no merit is dismissed.