MAHMOOD AHMAD BHATTI, J.---This revision petition is directed against the judgment and decree dated 18.10.2006 passed by the learned Additional District Judge, Dera Ghazi Khan, whereby he reversed and overturned the judgment and decree dated 28.02.2006 passed by the learned Civil Judge, Dera Ghazi Khan, thereby decreeing the suit for declaration instituted by late Mst. Aziz Mai, now being represented by the respondents.
2. Concisely put, the facts are that Mst. Aziz Mai, deceased instituted a suit for declaration along with perpetual injunction, averring therein that she did not make gift of the land measuring 5 Kanals, 11 Marlas, comprising Khewat Nos.173, 176, 177 and 178, situated in Mouza Dhol, Tehsil and District Dera Ghazi Khan to Mst. Hayatan Mai, the defendant/petitioner, and that the gift mutation No.58 attested on 17.01.1988 in her favour was the outcome of fraud and misrepresentation. It was further maintained by her in the plaint that she was an illiterate, purda nasheen woman of advanced years. It was alleged by her that Nabi Bukhsh, her son-in-law perpetrated fraud upon her, getting the suit land transferred in the name of his wife, Mst. Hayata
4. Given the divergent pleadings of the parties, tn Mai. On the basis of these averments, it was prayed by the plaintiff that she be declared as an owner in possession of the suit land. As a consequential relief, the alleged donee, Mst. Hayatan Mai was sought
3. Mst. Hayatan Mai, the defendant/ petitioner raised a number of preliminary objection be restrained from alienating it any further to the detriment of the rights and interests of the plaintiffs to the maintainability of the suit. She controverted the pleas of the plaintiff, denying all the assertions made by her. It was insisted by her that the gift land was transferred to her by her mother voluntarily and without any duress.he learned trial Court framed the following issues:- ISSUES:-
(1) Whether the gift mutation No.58 dated 17.01.1988 is illegal, forged, result of fraud and collusion, against the law and facts and ineffective qua the rights of the plaintiff, hence, liable to be cancelled? OPP
(2) Whether Mst. Aziz Mai validly gifted the property in dispute in favour of the defendant? OPD
(3) Whether the defendant incurred the improvement on the suit land, in case of decree, she is entitled to the same? OPD
(4) Whether the plaintiff is estopped by her words and conduct to file this suit? OPD
(5) Whether the suit is time barred? OPD
(6) Whether suit is not maintainable under section 42 of the Specific Relief Act? OPD
(7) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
(8) Whether the plaintiff has no cause of action to file this suit? OPD
(9) Whether the defendant is entitled to special cost under section 35-A of C.P.C.? OPD
(10) Relief.
5. In support of her claim, Mst. Aziz Mai appeared as P.W.1. She reiterated the facts set out by her in the plaint. She also produced Ghulam Hussain as P.W.2. It is pertinent to mention that Ghulam Hussain is the son of Mst. Aziz Mai and the only brother of the alleged donee. In documentary evidence copy of mutation No.58 challenged by the plaintiff was produced as Exh.P.1 and copy of jama bandi for the year 1999-2000 was got exhibited as Exh. P.2.
6. In rebuttal, Mst. Hayatan Mai, the present petitioner/defendant examined herself as D.W.1. She also produced Wahid Bakhsh as D.W.2. She tendered copies of mutation No.58 dated 17.01.1988 as Exh. D.1, mutation No.1247 as Exh. D.2, judgment passed in a suit for pre-emption as Exh. D.3, decree passed in the aforesaid suit as Exh. D.4, original receipt regarding the depositing of zar-e-panjam as Exh. D.5, original challan regarding the payment of pre-emption money as Exh. D.6, mutation No.53 as Exh. D.7, r'apt rozenamcha patwari waqiati as Exh. D.8, Khasra Girdawaries as Exh. D.9 and Exh. D.10.
7. The learned trial Court proceeded to dismiss the suit vide judgment and decree dated 28.02.2006.
8. Feeling aggrieved, Mst. Aziz Mai preferred an appeal to assail the validity of the aforesaid judgment and decree, which was allowed by the learned appellate Court vide judgment and decree dated 18.10.2006. Hence this revision petition.
9. In support of this revision petition, learned counsel for the petitioner submits that no issue-wise finding was given by the learned appellate Court; that the suit was barred by time; that Mst. Aziz Mai did not challenge the real hibba made in favour of Mst. Hayatan Mai; she simply challenged mutation No.58 dated 17.01.1988. He further contends that Ghulam Hussain, son of Mst. Aziz Mai was pulling the strings from behind: otherwise, Mst. Aziz Mai did not intend to call into question the legality of mutation No.58. Lastly, he argues that the well-reasoned judgment of the learned trial Court was overturned by the learned appellate Court without any rhyme or reason.
10. Conversely, learned counsel for the respondents has supported the impugned judgment and decree passed by the learned appellate Court, urging that neither the patwari halqa, who entered the mutation in question nor the Revenue Officer, who attested it in favour of the petitioner, Mst.
Hayatan Mai was produced. He has pointed out that Mst. Aziz Mai, the alleged donor had three daughters and one son. There was no reason for her to prefer Mst. Hayatan Mai to her other offspring. It is vehemently argued by him that the alleged donee and her husband, Nabi Bukhsh committed fraud upon a rustic, illiterate woman aged 80.
11. I have heard the learned counsel for the parties and perused the record annexed to the revision petition, in addition to poring over the judgments passed by the learned Courts below.
12. It is well-established law that in case of disputed transactions, the onus is always on the beneficiary to prove the execution, correctness, validity and legality thereof. Suffice it to make reference to the case-law reported as "Aurangzeb through L.Rs and others v. Muhammad Jaffar and another" (2007 SCMR 236), "Muhammad Saee v. Mst. Sharaf Elahi and another" (2010 SCMR 1370), "Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others" (2008 SCMR 1384), "Rehmatullah and others v. Saleh Khan and others" (2007 SCMR 729), "Mst. Khurshid Bibi and others v. Ramzan and others" (2006 CLC 1023), "Mst. Kalsoont Bibi and another v. Muhammad Arif and others" (2005 SCMR 135), "Barkat Ali through Legal Heirs and others v. Muhammad Ismail, through Legal Heirs and others". (2002 SCMR 1938), "Saleem Khan and 9 others v. Karim Khan" (2006 CLC 1006), "Nawab Din through Legal Representatives v. Said and 6 others" (2005 YLR 2024) and "Liaqat Ali v. Province of Punjab through D.C.O.
Gujrat and 6 others" (PLJ 2006 Lahore 177).
13. In case of gifts, the onus is always on the donee to prove that the donor made gift to him/her voluntarily, without duress and in all senses; that he/she accepted the same, and, that the possession was delivered to him/her in its wake. If any of the ingredients/components is missing, the claim of the donor would be rejected outright. In this respect, it would be profitable to rely upon the judgments of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Idrees v. Mst.
Zeenat Bibi" (2005 SCMR 1690), "Aurangzeb through L.Rs and others v. Muhammad Jaffar and another" (2007 SCMR 236), "Mst. Nagina Begum v. Mst. Tahzim Akhtar and others" (2009 SCMR 623) and "Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others" (2012 SCMR 1602). Needless to add, the donor is required to prove the foregoing facets of a gift by leading, cogent, convincing, sound and incontrovertible evidence.
14. In order to prove the correctness of the gift mutation in question, Mst. Hayatan Mai appeared as D.W.1 and stated that the plaintiff was her real mother. She got a suit for pre-emption instituted by her mother and that the expenses of that suit were borne by her. It was further deposed to by her that the suit for pre-emption was decreed. Her mother owed a debt to her and in order to discharge this debt as well as out of love, her mother transferred the land to her. While pondering over her deposition, I am struck by the fact that she did not utter a single word in her examination- in-chief to the effect that the suit land was gifted to her by her mother. On the contrary, she took a plea different from the one which she took in her written statement. In point of fact, she did a U-turn and attempted to improve upon her case. It is well-settled law that before a person can be allowed to lead evidence in respect of a material fact, he/she is to first allege it in his/her pleading. After all, a party is not to be allowed to spring a surprise on its adversary. In this respect, it would be advantageous to make reference to the following judgments of the Superior Courts "Muhammad Nawaz alias Nawaza al7(' others v. Member Judicial Board f2f Revenue and others"(2014 SCMR 91,4), "Messrs Essa Engineering Company (Pvt.), LTD, and another v. Pakistan Telecommunication Company Limited and another" (2014 SCMR 922), "Muhammad lqbal v. Mehboob Alam" (2015 SCMR 21). "Messrs Choudhary Brothers Ltd. Sialkot r. The Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804). "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad" (PLD 1976 SC 469). "Hakim AU v. Muhammad Salim" (1992 SCMR 46), "Muhammad Tariq and others v. Mst. Shamsa Tan-veer and others" (PLD 2011 SC 151), "Mubarak AU and others v. Khushi Muhammad and others" (PLD 2011 SC 155), "Major (Retd.) Barkat Ali and others v. Qaim Din and others" (2006 SCMR 562), "Aurangzeb through L.Rs and others v.
Muhammad Jaffar and another" (2007 SCMR 236), "Shall Muhammad and others v. Khanzada Gul and others" (2007 SCMR 368), "Rehmatullah and others v. Saleh Khan and others" (2007 SCMR 729), "Muhammad Shafi and others v. Sultan" (2007 SCMR 1602), "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336), "Province of Punjab v. Ibrahim and sons" (2000 SCMR 1172), "Suo Motu Case No.10 of 2009" (2010 SCMR 885), "Sh. Fateh Muhammad v. Muhammad Adil" (PLD 2007 SC 460), "Zulfiqar and others v. Shahadat Khan" (PLD 2007 SC 582) and "Malik Muhammad Faisal v. State Life Insurance Corporation through Chairman" (2008 SCMR 456).
15. To return to the facts of the instant case, the petitioner demolished her own case by making a departure from the stance adopted by her in the written statement. The documents produced by her as Exhibits D.2 to D.7 pertaining to the suit for pre-emption instituted by Mst. Azizan Mai were liable to be discarded for the very same reason.
16. Exh. D.8 is a copy of r'apt rozenamcha patwari waqiati. This document produced by the donee/defendant/ petitioner makes an interesting reading. This r'apt was got entered by Nabi Bakhsh, husband of the petitioner who stated before the Patwari Halqa that Mst. Aziz Mai had made hibba of her agricultural land in favour of his wife. Put simply, Mst. Aziz Mai did not go to the Patwari Halqa nor did she report the alleged factum of gift made in favour of Mst. Hayatan Mai. This document knocks the bottom out of the case of the donee/petitioner. This was exactly what was stated by Mst. Aziz Mai in her deposition when she appeared as P.W.1. It bears repeating that neither the Halqa Patwari who recorded the aforesaid r'apt Exh. D.8 nor the Revenue Officer, who attested mutation No.58 dated 17.01.1988 was examined by the petitioner/defendant, whose testimonies might, have given credence to the claim made by the donee. It can also be not overlooked that neither Mst. Hayatan Mai nor her witness, Wahid Bakhsh (D.W.2) testified as to when and where Mst.
Aziz Mai declared to have made a gift of the suit land in favour of Mst. Hayatan Mai her daughter.
There is also no evidence as to the persons in whose presence this announcement was made by the alleged donor. It is incredible that such an event would have taken place without the knowledge of others. In at least two reported judgments of this Court, these facts having bearing on the proof or E otherwise of a valid gift were highlighted in the following manner:--
17. In the case of "Ghulam Zainab and another v. Said Rasool and 8 others" (2004 CLC 33), it was observed that:- "From this narration of evidence produced by the petitioners, it is clear that they failed to prove time, date or place of gift in their favour. Though learned counsel for the petitioners has attempted to show that from cross-examination of these witnesses, one can determine the time and day of the gift, but in absence of any such assertion in the plaint, some fake assertions in cross-examination, which also do not specify the time and day of gift, the transaction of gift is not proved." In the case of Mst. Imam Sain and 4 others v. Dr. Shahid Mahmood and another" (2006 YLR 1102), it was held that:-- "Undoubtedly, the immovable property, can be gifted through oral mode, but for such a transaction, very strict and positive evidence is needed; the donee who is the beneficiary of the gift, has to prove in unequivocal and specific terms the date, day and the time; when the gift was made, the consideration of the gift and also the persons in whose presence, it was so made.
Unfortunately, in the instant case, the above essential ingredients are conspicuously missing."
18. Wahid Bakhsh, D.W.2 stated that the alleged gift was made on 09.01.1988 and that the entire proceedings in relation to it were completed by the Patwari Halqa and the Tehsildar on the very same day. If this be so, the alleged gift made on 17.01.1988 would be a fake, forged and fabricated document.
19. There is another aspect of the case. In her cross-examination, Mst. Hayatan Mai stated that she was not present at the time of the attesting of mutation in question. On the other hand, her witness, Wahid Bukhsh, D.W.2 stated in his cross-examination that Mst. Hayatan Bibi did appear before the Revenue Officer. The evidence of Mst. Hayatan Mai is contradictory to that of Wahid Bukhsh on a very material point, striking at the roots of the case of the petitioner. Be that as it may, going by the deposition of Mst. Hayatan Mai, when she was not present at the time of attesting of mutation, it would lead to the conclusion that she did not accept the alleged gift made in her favour. In other words, one of the three ingredients to make a gift valid was missing.
20. It can also be not lost sight of that the mutation in question does not bear the signatures or thumb impressions of the alleged donor or donee. As a matter of fact, this assumes importance in view of the note recorded by the Revenue Officer on the reverse of the mutation sheet in question that neither Mst. Aziz Mai nor Mst. Hayatan Mai appeared before him. And this clinches the issue, endorsing the stand taken by the plaintiff from day one.
21. It is also well-established law that the findings of the learned appellate Court are to be preferred to that of the learned J trial Court. In this respect, reliance is placed upon the judgment of the Hon'ble Supreme Court of Pakistan reported as `Amjad Ikram v. Ms. Asiya Kausar and 2 others' (2015 SCMR 1).
22. I am unable to agree with the learned counsel for the petitioner that the appellate Court was bound to give issue-wise findings. In fact, the provisions of Order XLI, Rule 31 and Order XX, Rule 5, C.P.C. Laying down the parameters of a judgment of a trial and appellate Court are not couched in similar language. The appellate Court dealt with the controversy raised in the pleadings in a comprehensive manner, touching upon all the material issues. It is trite law that unlike the trial Court, appellate Court is not required to give issue-wise findings. In this respect, reference may well be made to the judgments reported as Umar Din v. Ghazanfar Ali' (1991 SCMR 1816), `Muhammad Amir v. Muhammad Sher" (2006 SCMR 185) and Tadir Bukhsh v. H Allah Dewaya' (2011 SCMR 1162).
23. Looked at from, whatever angle, Mst. Hayatan Mai failed to discharge the onus put on her regarding the correctness, validity and legality of mutation No.58 allegedly attested on 17.01.1988.
Her claim to the contrary was rightly given a short shift by the learned appellate Court and the suit of Mst. Aziz Mai was rightly decreed by it.
24. The learned counsel for the petitioner has failed to point out any illegality or material irregularity to have been committed by the learned appellate Court. The judgment passed by the learned appellate Court is unexceptionable and calls for no interference in the exercise of the revision jurisdiction of this Court. The upshot is that this revision petition being devoid of merits is hereby dismissed.