' Through this civil revision, the predecessor-in-interest of Petitioners No, 1(A) to 1(G) has challenged the validity of judgment & decree dated 25.03.2014 passed by learned Civil Judge, Chishtian whereby the suit for declaration filed by the five real sisters and one brother of Petitioner No, 1 i.e, respondents plaintif fs was decreed; and judgment & decree dated 14.05.2016 passed by learned Additional District Judge, Chishtian dismissing the appeal of the petitioners.
2. Brief facts of the case are that Respondents No, 1, 2, 3, 4, 5 & 6 (deceased)/plaintif fs and Petitioner No, 1 (deceased)/defendant are brothers and sisters (sons and daughters of deceased Muhammad Mansha); that the predecessor-in-interest of the parties namely Muhammad Mansha was owner in possession of land measuring 13- Kanals 04-Marlas bearing Khata No, 30 situated at Chak No, 15/G, Tehsil Chishtian, District Bahawalnagar who died on 05.06.2004; the age of Muhammad Mansha (deceased) was about 100 years at that time; he was unable to hear and his eyesight was also weak ; Respondents No, 1 to 5, sisters of Petitioner No, 1 (deceased), are illiterate villagers and Pardanasheen women; Respondent No, 6 (brother of Petitioner No, 1 went to Saudi Arabia as he was serving in the Pak Army; all the matters of property and maintenance of the predecessor-in-interest of the parties were looked after by Ghulam Sarwar , Petitioner No, 1 (deceased) who through Tamleek Nama dated 16.09.1999 got transferred the suit land; thereafter , Mutation No, 1539 was duly sanctioned and the said Tamleek Nama was registered on 06.11.1999; the respondents/defendants contended that their predecessor-in- interest/father being old age neither appeared before any revenue officer nor made any offer,and also has not delivered any possession of the suit land to Petitioner No, 1/defendant. All the proceedings conducted by Petitioner No, 1 are the result of fraud, misrepresent ation and impersonation just to deprive the respondents from their shares of inheritance. After knowledge of the impugned transaction, respondents asked Petitioner No, 1 to get cancelled the said mutation but he refused to do so; thereafter the respondents filed suit for declaration against Petitioner No,
1. Petitioner No, 1 appeared before the learned trial Court, filed written statement contended that his father Muhammad Mansha was physically sound who transferred the suit land through registered Tamleek; he stated that he has been taken part of other litigation pending before learned Courts in different time. Out of divergent pleadings of the parties, learned trial Court after framing the issues, recording the evidence of both the parties and hearing their respective counsels decreed the suit of the respondents vide judgment & decree dated 25.03.2014. Against the said judgment & decree, present petitioners filed appeal before learned District Judge, Chishtian which was dismissed vide judgment & decree dated 14.05.2016. Hence, this civil revision.
3. Learned counsel for the petitioners subm its that both the-judgments & decrees are illegal, against the law and facts of the case; that learned Courts below passed the impugned judgments & decrees without any legal justification, based on mis-reading and non- reading of evidence; that Muhammad Mansha, predecessor-in-interest of the parties being healthy , having complete sense and capable of understanding gifted out the suit property to Petitioner No, 1; that both the impugned judgments & decrees are illegal and not sustainable in the eye of law, as such, the same are liable to be set aside.
4. I have heard the case and gone through the record with the able assistance of the learned counsel for the petitioners.
5. The Petitioner No, 1 (deceased) and Respondents No, 1, 2, 3, 4, 5 and 6 (deceased) are brothers and sisters, respondents challenged tamleek/gift-deed dated 06.11.1999 and Mutation No, 1539 and filed suit for declaration to prove the stance taken in the pleadings and both the parties produced their evidence.
6. Respondent No, 1/Plaintif f No, 1 namely Mst. Naseem Akhtar appeared as PW-1 who deposed that we are five sisters and two brothers; her father namely Muhammad Mansha was owner of suit land measuring 13-Kanals 4- Marlas situated at Chak No, 15/G, Tehsil Chishtian which was got transferred by her brother Ghulam Sarwar through alleged gift mutation whereas, her father died at the age of about 100 years; before the death about 8/9 years he remained indisposed. Further deposed that he was unable to hear and his eyesight was also so weak; he was not in position to identify any person; her second brother namely Farzand Ali (Plaintif f No, 6) was employee of Pak Army and went to Saudi Arabia; she further deposed that her real brother name ly Ghulam Sarwar had deprived the plaintif fs from their lawful shares of inheritance of their real father . In her cross-examination, she states that her father was remained under the treatment of different Doctors and he paralyzed about 6/7 years before his death.
Zulfiqar Ahmed appeared as PW-2 and deposed that Muhammad Mansha (deceased) was his uncle who died on 05.07.2004; Muhammad Mansha was owner of the suit land who had also five daughters and one son Farzand Ali (besides Ghulam Sarwar) who have illegally been deprived from their inheritance; Muhammad Mansha (deceased) never appeared before any revenue officer; all the transaction based on fraud. Farzand Ali, Plaintif f No, 6 appeared as PW-3 deposed that his father's age was 100 years when he was died on 05.07.2004; alleged gift mutation of the suit property by his real brother Ghulam Sarwar by way of fraud and misrepresentation, they came to know regarding the transaction about three years ago then they filed the suit.
' Conversely , the defendants produced Asif Iqbal, Mohrar Registry , Sub-Registrar , Chishtian as DW-1 who produced record regarding the alleged Gift-Deed No, 1078 dated 16.09.1999. In cross-examination, he deposed that the said document was not registered in his presence. Jam Baka, presently working as Deputy Director , Anti- Corruption Establishment Bahawalpur appeared as DW-2 who deposed that he was Sub-Registrar , Chishtian on 16.09.1999; the alleged gift/T amleek Nama was presented before him. During cross-examination, he - admitted that no sign of Muhammad Mansha is available on Exh. D-1; he admits that Muhammad Saleem S/o Ghulam Sarwar mentioned as identifier; the witness Muhammad Saleem and other witnesses were not co-sharers of the property; he also admitted that , the said document was not identified and witnessed by Lambardar , co-sharers or councilor; he also admits that no statement of donor is made by his own hand writing; deposed that de does not remember that he put question to Muhammad Mansha (deceased) that when the document was presented before him for registration whether any son or other legal heir of the deceased came or not. Abdul Maqsood, Cashier of Treasurer Office, Chishtian appeared as DW-3 who deposed that stamp paper was issued by one Ashraf Javed.
During cross-examination, he deposed that he has not signed on the back side of stamp paper and admitted that he did not know Muhammad Mansha whose name stamp paper was issued. Muhammad Ashraf, Deputy District Accounts Officer appeared as DW-4. In his cross-examination, he admits that no photocopy of identity card was affixed on the register as well as stamp paper; he admits that no picture of Muhammad Mansha was affixed on the register . Asghar Abbas, Ahlmad, Revenue Court appeared as DW-5 who deposed that he was Ahlmad of the revenue Court; file of appeal titled Muhammad Anwar etc. vs. Muhammad Mansha etc. was presented before him.
In cross-examination, he admits that no personal attendance was marked in the margin of order sheet; he admits that stamp paper got issued on the identification of Ghulam Sarwar real son of Muhammad Mansha; he also admits that no record or identity card was placed on record and also admitted that all the proceedings were conducted in his presence. Muhammad Akram, Ex-Patwari appeared as DW-6 who deposed that he entered the alleged gift Mutation No, 1539 dated 12.10.1999. In cross-examination, he deposed that he has not brought register Roznaracha Waqiati; he also admitted that no proceedings regarding Tamleek were conducted in his presence; he admits that he has no knowledge regarding Tamleek Nama; Abdul Rasheed Kazim, Advocate appeared as DW-7 and deposed that he was Counsel of Muhammad Mansha (deceased) in partition application; he deposed that he has no concern with the disputed property; he admits that no Wakalat Nama is present before him; he has no knowledge whether Muhammad Mansha had affixed his thumb impressions or signature on Wakalat Nama. Ishfaq Ahmed, deed writer appeared as DW-10 and deposed that Tamleek Nama (Exh. D-1) was written by him with his own hand writing. In cross-examination, he deposed that he did not remember that on 16.09.1999 who was Tehsildar of Tehsil Chishtian. One of the marginal witness namely Saeed Ahmed appeared as DW-11 and deposed that he alongwith his brothers, father and other family members went to the house of Ghulam Sarwar and in their presence their uncle Muhammad Mansha transferred the suit land through gift in the presence of Ghulam Sarwar , Nadeem, Naeem Sarwar , Muhammad Yousaf and Zulfiqar; deposed that Muhamm ad Mansha got the stamp paper from the Treasury Of fice and got written by Ishfaq.
' From the perusal of oral as well as documentary evidence produced by both the parties, the respondents/plaintif fs challenged the alleged Tamleek Nama dated 16.09.1999 and Mutation No, 1539 by making allegation of fraud, impersonation and misrepresentati.m, at the same moment the onus was shifted upon the defendants being beneficiaries of transaction to prove genu inity of alleged Tamleek Nama independe ntly and also to substantiate the Mutation No, 1539 thereof through strong, believable and unimpeachable evidence . Reliance is placed on the case of Amjad Ikram vs. Mst. Asiya Kausar & 2 Others (2015 SCMR 1). As it was gift transaction and petitioners/defendants were legally saddled with staunch responsibility first of all to mention the exact date, time, place, presence of the witnesses in their 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 defendants have neither mentioned the same in the written statement nor led any evidence thereof. They have produced only marginal witness namely Saeed Ahmad who appeared as DW-11, whereas, other margin al witness namely Muhammad Nadeem s/o Muhammad Mansha was not produced by the petitioner to prove the alleged gift-deed Ex.D.1. The marginal witness (DW-11) in his statement stated that Muhammad Mansha was his real uncle and the gift-deed was executed by him in the presence of Ghulam Sarwar , Nadeem, Naeem Sarwar , Muhammad Yousaf and Zulifqar , whereas, except Saeed Ahmad nobody was produced in the evidence and also have furnished no sufficient explanation for non-producing the said persons in the evidence for proving the alleged Tamleek Nama as well as mutation, as such, a strong presumption of withholding the best evidence under Article 129(g) of Qanoon-e- Shahadat Order , 1984 goes against the defendants. Even otherwise, under Articl e 17 read with Article 79 of the Qanun-e Shahadat Order , 1984, it was the mandatory duty of the defendants to produce witnesses to prove the " alleged Tamleek Nama and mutation but he failed to do so, as such, the defendants failed to substantiate the alleged gift as per law. Reliance is placed on the cases of Hafiz Tassaduq Hussain VS Muhammad Din through legal heirs and others (PLD 2011 Supreme Court 241) and Farzand Ali and anoth er Vs Khuda Bakhsh and others (PLD 2015 SC 187 ).
It is important to mention here that non-e xamining of attesting witnesses of the gift-deed could not term as valid oral gift as settled by the Hon'ble Supreme Court of Pakistan in the latest judgment reported as Mst. Sandia vs. Mst. Gul Bibi ( 2016 SCMR 662 ).
' Furthermore, in the written statement, the defendants did not write that the offer, acceptance and delivery of possession was made under the gift by his deceased father in the presence of the witnesses. Furthermore during evidence, the defendants also did not utter even a single word regarding the offer/declaration of gift by the donor , acceptance of the gift, expressly or impliedly , by or on behalf of the donee/predecessor-in-interest of the parties and delivery of possession of the subject of the gift by the donor to the donee as mentioned in Para No, 150 of Muhammadan Law. It is settled law that mere sanction of gift mutation does not cure the want of delivery of possession. The defendants did not produce any document/evidence which proves that he obtained the possession of the suit property after acceptance of offer as prescribed in Paras No, 149 and 150 of Muhammadan Law which are reproduced as under:-- "149. The three essentials of a gift. --It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor , (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in S. 150. If these conditions are complied with, the gift is complete.
150. Delivery of possession. --(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift that susceptible of as observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively ," is necessary to complete a gift.
(2) Registration. - Registration of deed of gift-does not cure the want of delivery of possession.
(3) If it is proved by oral evidence that a gift was completed as required by law [Sections 149 and 150], it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act, S. 17 (a).
(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor . But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a father or guardian- S. 156) was on the facts held to be insuf ficient to support a gift as against the heirs of the donor ."
' As such, evidence produced by the defendants is out of pleadings and it cannot be considered or discussed, same should be ignored while deciding the lis. Reliance is placed on the cases of Zulfiqar and others vs. Shandat Khan (PLD 2007 SC 582) and Muhammad Nawaz alias Nawaza and others vs. Member Judicial Board of Revenue and others ( 2014 SCMR 914 ).
' It is proved on record that offer as alleg ed by the defendants was not made by Muhammad Mansha (deceased) with his free consent and delivery of possession was also not proved. Admittedly , prior to this alleged transaction, the suit property was being cultivated by Hafiz Manzoor as lessee/tenant of Muhammad Mansha. There is no document available on record which proves that a notice was given to said Hafiz Manzoor regarding alleged gift- deed, regarding the ouster of the donor and insertion of the donee's possession on the said land. Mere registration of document in itself was not lawful proof of its execution until and unless the same is proved by the beneficiary through evidence. It was the primary duty of the beneficiaries to prove valid execution of the alleged document as settled by the Hon'ble Supreme Court of Pakistan in the case titled as Mst. Rasheeda Bibi & Others vs. Mukhtar Ahmad & Others ( 2008 SCMR 1384 ).
7. So far as the question of limitation is concerned, admittedly Plaintif fs No, 1 to 5 are the daughters of Muhammad Mansha and sisters of Defendant No, 1 who are married ladies living with their husbands and they deposed that they have no knowledge regarding the transaction, whereas, Plaintif f No, 6 who is real brother of Defendant No, 1 was Army Personnel at the time of alleged transaction and was serving in Saudi Arabia. There is no evidence brought on record by the defendants that the plaintif fs were aware about the alleged transaction of Tamleek.
Admittedly , in the lifetime of Muhammad Mansha (deceased), the property was being cultivated by Hafiz Manzoor till 2006. Apparently , the property owned by the predecessor-in-interest of the parties was fraudulently got transferred by Petitioner No, 1 in his favor , as such, there is no question of limitati on is arisen against a fraudulent transaction.
8. Learned counsel for the petitioners has not been able to point out any illegality or material irregularities committed by the learned Courts below while passing the impugned judgments & decrees and also have not identified any jurisdictional defect.
9. The concurrent findings of fact are against the petitioners which do not call 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 Muhammad Feroze & Others vs. Muhammad Jamaat Ali (2006 SCMR 1304 ), Rashid Ahmad us.
Said Ahmad (2007 SCMR 926), Asmatullah vs. Amanat Ullah through LRs (PLD 2008 SC 155) and Mst Zaitoon Begum vs. Nazar Hussain & Another ( 2014 SCMR 1469 ).
10. In view of above, this civil revision is hereby dismissed in limine being devoid of any merits.