Through this civil revision, the petitioner has challenged the validity of judgment & decree dated 27.09.2012 whereby the suit for declaration filed by the respondent was decreed by the learned Civil Judge, Hasilpur; and the judgment & decree dated 04.02.2016 whereby the appeal filed by the petitioner was dismissed by the learned Additional District Judge, Hasilpur.
2. Brief facts of the case are that the respondent /plaintiff filed a suit for declaration against her brother / petitioner / defendant contending therein that she is the owner of land measuring 17- Kanals 10-Marlas comprising Khewat No.221/274, Khatooni No.920, Rectangle No.270/4, Acre No.23, 19 situated in Mauza Baidana Gharbi on the basis of inheritance mutation No.1272 dated 07.05.1984.
The respondent challenged the mutations No.1273 and 1274 dated 07.05.1984 on the ground that she never alienated her share in favour of her mother, she never appeared before any revenue officer for the attestation of mutation No.1273 nor received any amount, she is an illiterate and 'Parda Nasheen' lady. The petitioner / defendant filed contesting written statement. Learned trial Court after framing the issues and recording the evidence of both the parties decreed the suit in favour of the respondent vide judgment & decree dated 27.09.2012. The appeal against the said judgment & decree was also dismissed by the learned Additional District Judge, Hasilpur vide judgment & decree dated 04.02.2016. Hence, this civil revision.
3. Learned counsel for the petitioner submits that both the impugned judgments & decrees are based on mis-reading and non-reading of evidence; that the respondent herself alienated the property in question through impugned mutation but both the Courts below without considering the oral as well as documentary evidence decreed the suit in favour of the respondent.
4. Heard. Record perused.
5. It is an admitted fact that the petitioner and respondent are the real brother and sister.
After the death of their father, inheritance mutation No.1272 (Exh. P-1) was entered on 25.03.1984 on the information of Abdul Haq in favour of his legal heirs i.e. Mst. Zainab Bibi (widow), Sharifan Bibi (daughter) and Abdul Haq (son) and another impugned gift mutation No.1273 (Exh. P-2) was also got entered allegedly by Mst. Sharifan Bibi on 25.03.1984 (the same day) in favour of her real mother Mst. Zainab Bibi which is as under: {{URDU TEXT}} Whereas, Mst. Zainab Bibi further gifted out the said property to her son Abdul Haq through gift mutation No.1274 (Exh. P-3) incorporated in the revenue record on 27.03.1984 and all the above three mutations were simultaneously sanctioned on 07.05.1984.
6. The plaintiff/respondent has categorically taken a stance in the plaint that she had never gifted her inherited property to her mother. She asserted further that after inheritance she was in possession of the land through her tenant Abdul Haq s/o Sharf Din who has been paying rent to her. Thereafter she leased out the land to her brother whose possession over the land was as a tenant who fraudulently and surreptitiously with collusion of the revenue officials got entered and sanctioned the impugned gift mutation.
7. Initially the burden to prove the alleged fraud was upon the respondent / plaintiff. The respondent / plaintiff appeared as PW-1 and deposed that her brother Abdul Haq took her at the house of Patwari Halqa near Darbar Muhammad Shah Rangeela; Patwari Halqa obtained her thumb impression and told her that inheritance mutation had been attested regarding her share in the estate of her deceased father; that she affixed her thumb impression only on the inheritance mutation and had not affixed thumb impression on any sort of gift mutation; further deposed that gift mutation is forged and fictitious; she never appeared before any revenue officer for the attestation of gift mutation in favour of her mother; she deposed further that after the inheritance mutation the land was in her possession through her tenant Abdul Haq s/o Sharf Din caste Gill
(Jutt) who cultivated the land for 3/4 years whereafter she rented the said land to PW-3 and after that she rented out the said land to her brother Abdul Haq who remained paying the rent in shape of money or by some agricultural produce. In the lengthy cross-examination, the petitioner / defendant had failed to shatter the credibility of the witness (PW-1). Abdul Haq S/o Sharf Din (PW- 2) deposed that he accompanied the parties at the time of inheritance mutation in favour of Sharifan Bibi; he remained in possession of the land about 3/4 years as tenant of Mst. Sharifan Bibi after the inheritance mutation and paid her lease or rent money.
The plaintiff has categorically denied the factum of gift mutation in the plaint as well as in her statement on oath in the Court and it is candidly mentioned that fraud has been committed with her by the defendant, at the same moment the onus was shifted upon the defendant being beneficiary of transaction to prove genuinity of alleged oral gift/transaction independently and then substantiate the mutation No.1273 thereof through strong, believable and unimpeachable evidence. Reliance is placed on the case of Amjad Ikram Vs. Mst. Asiya Kausar & 2 Others (2015 SCM R 1). As it was an oral gift transaction and petitioner was legally saddled with staunch responsibility first of all to mention the exact date, time, place, presence of witnesses in his pleading (written statement) and then prove the same by adducing the evidence with regard to the existence of the very factum of the gift independently but the petitioner has neither mentioned the same in the written statement nor led any evidence thereof. The defendant took stance in his written statement that Mst. Sharifan Bibi under advice of her husband had gifted the suit land with her free will to her mother who further alienated the same to the defendant through gift mutation No.1274 and since then he is in possession of the suit land and had never paid any rent to plaintiff.
In support of his above stance, Abdul Haq, defendant himself appeared as DW-3 and narrated the same story as set up in the written statement. He admits in his cross-examination that he has been paying some amount to the plaintiff as gift. Muhammad Hussain (DW-2), marginal witness of the gift mutation supported the version of the defendant as pleaded in the written statement.
Muhammad Ashraf Gondle Halqa Patwari DW-1 who produced the record of the impugned mutation, he has admitted in his cross-examination that Anwar Ali Patwari who scribed the mutation No.1273 is still alive. Iftikhar Ahmed Qureshi Naib Tehsildar (DW.4) contended that he had sanctioned all the three mutations on 07.05.1984. He has not stated a single word in his examination-in-chief that he personally knew Mst. Sharifan Bibi rather in his cross-examination admits as under: {{URDU TEXT}} He further deposed that he did not know the exact place where he passed / sanctioned the mutations whether it was Dera or School in the said Village From the perusal of record, it reveals that defendant laid much emphasis in proving the gift mutation which in itself is a subsequent in nature and only deals with the observance of procedural formalities of earlier transaction just for maintenance of the revenue record and does not create any right or title. Even otherwise, the defendant failed to produce Ghulam Ali Halqa Patwari who scribed the entries of the alleged gift mutation No.1273 and according to the statement of DW1 said Ghulam Ali Patwari was alive at the time of recording of the evidence in the suit and has also failed to produce the Rapt Roznamcha Waqiati most significant document in his evidence. Haji Naik Muhammad, the identifying witness of mutation No.1273 has also not been produced in the witness box and petitioner has furnished no sufficient explanation for non-producing above said witness in the defence evidence, as such, a strong presumption of withholding of the best evidence under Article 129 (g) of Qanoon-e-Shahadat Order, 1984 goes against him. Even otherwise, under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it was the mandatory duty of the petitioner / defendant to produce both the marginal witnesses to prove the alleged gift mutation. Whereas, only one of the marginal witnesses has been produced and other marginal witness i.e. Haji Naik Muhammad has not been produced by the defendant to prove the alleged gift mutation, as such, the petitioner / defendant failed to substantiate the gift mutation as per law.
Reliance is placed on the cases of Farzand Ali and another Vs Khuda Bakhsh and others (PLD 2015 SC 187) and Hafiz Tassaduq Hussain VS Muhammad Din through legal heirs and others (PLD 2011 Supreme Court 241). Moreover, the entries of inheritance mutation No.1272 in favour of respondent and gift mutation No.1273 in favour of Mst. Zainab Bibi was scribed on same day i.e. 25.03.1984 and bare reading of entry of mutation No. 1273 shows that only Mst. Sharifan Bibi and Abdul Haq were present before the Patwari and none else has been mentioned or shown present at that place and time of entry of the alleged gift mutation which belied the stance of the petitioner / defendant that the plaintiff gifted the property under advice of her husband. Undoubtedly, she become owner of the suit property by operation of law after the death of her father yet ostensibly land in revenue record still exists in the name of her deceased father uptill 07.05.1984. Mutation No.1273 was deliberately, well conceivably collusively and fraudulently got incorporated on 25.03.1984 to fetch an impression of genuinity of these transactions but the mode adopted for acquiring land of plaintiff apparently shows the existence of an element of misrepresentation and patent fraud played by the petitioner/defendant who has failed to advance any cogent reasons for getting the land gifted indirectly via his mother and why had not obtained the same directly when the respondent / plaintiff was present with him at the time of recording entry of inheritance mutation.
Furthermore, the petitioner has fraudulently, collusively and through mis-representation availed the benefit of the plaintiff's presence on 07.05.1984 before Revenue Officer with regard to sanctioning of inheritance mutation and surreptitiously got sanctioned the alleged gift mutation in his mother's name as well as in his own favour in hasty manner just to deprive the respondent from her accrued share of inheritance. It is settled law that when a women is a party to the transaction and her right in the property is going to be affected or alienated, in that eventuality, the revenue officer has to show strict cautions, care and circumspections while recording her statement or entering the mutations etc. whereas in the present case no such pre-cautionary measures have ever been taken by the revenue officer rather he hurriedly pass the mutation without observing the legal formalities which constitutes a fraud and collusiveness of the revenue staff with the petitioner / defendant. It is well settled law that fraud vitiates the most solemn proceedings and the edifice so raised on the basis of such fraudulent transaction stood automatically dismantled. Reliance is placed on the cases of Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCM R 1097), Khadim Hussain Vs. Abid Hussain & Others (PLD 2009 SC 419), Talib Hussain & Others Vs. Member, Board of Revenue & Others (2003 SCM R 549), Khair Din Vs. Mst. Salaman & Others (PLD 2002 SC 677), Muhammad Younus Khan & 12 Others Vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar & Others (1993 SCM R 618), Lal Din & Another Vs. Muhammad Ibrahim (1993 SCM R 710) and Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), as such, learned Courts below rightly decreed the suit in favour of the respondent / plaintiff.
It is worth mentioning here that the transaction in dispute is a tamleeq / gift and the gift mutation No.1273 dated 07.05.1984 in favour of Mst. Zainab Bibi. For a valid gift, the basic ingredients i.e. offer, acceptance and delivery of possession are sine qua non and failure to observe any of the above constituent renders such gift as invalid. From the perusal of the pleading and the evidence of the petitioner, nothing has been stated or established with regard to offer and acceptance rather the petitioner has vehemently reiterated that plaintiff (donor) has admitted the handing over of the possession to the donee before the Patwari and other witnesses of the mutation and the same has also stood proved through the periodical revenue record and Khasra Girdawaries (Exh. D-3 to Exh.
D-14). Suffice to say that it was joint, unpartitioned land and petitioner was required to establish specifically the ouster of plaintiff (donor) possession and insertion of his possession with clear information to the plaintiff regarding the termination of her possession from the suit land. In this regard no evidence is available on the record whereas the above said Jamabandies and Khasra Girdawaries too does not establish the handing over of possession to Mst. Zainab Bibi (donee).
Furthermore, it transpires from the record that the documents i.e. periodical record (Jamabandies) and Khasra Girdawaries (Exh. D-3 to Exh. D-14) have been produced by the learned counsel for the petitioner / defendant in his statement. It is settled law that the documents relied upon or on the basis of which the case has been filed shall be produced in the evidence by the party itself whereas the above said documents have not been produced by the petitioner and same cannot be relied upon as valid evidence, as such, these documents could not be taken into consideration.
Reliance is placed on the cases of Mst. Hameeda Begum & Others Vs. Mst. Irshad Begum & Others (2007 SCM R 996) and Federation of Pakistan through Secretary Ministry of Defence & Another Vs. Jaffar Khan & Others (PLD 2010 SC 604). As sequel to the above by excluding the above documents from the consideration, there is no evidence available on the record which establishes the handing over the possession of the suit land to the petitioner / defendant.
8. The learned counsel for the petitioner has not pointed out any illegality or irregularity, mis- reading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect.
9. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases of Mst. Zaitoon Begum Vs. Nazar Hussain & Another (2014 SCM R 1469), Asmatullah Vs. Amanat Ullah through LRs (PLD 2008 SC 155), Rashid Ahmad Vs. Said Ahmad (2007 SCM R 926) and Muhammad Feroze & Others Vs. Muhammad Jamaat Ali (2006 SCM R 1304).