SYED MUHAMMAD FAROOQ SHAH, J.---Captioned revision application under section 115, C.P.C., has been directed against the appellate judgment, thereby decree of dismissal of F.C. Suit No, 30 of 2011, was reversed; consequently, the said suit was decreed. Applicant has approached this Court, with a prayer to set aside the appellate judgment, by maintaining, the original judgment and decree of the trial Court.
2. The averments of the plaint of F.C. Suit No, 30 of 2011 filed by Mst. Amna/respondent No,5 reveals that mother of the plaintiff/respondent No,5 namely Mst. Chhattan d/o Muhammad Uris was share holder to the extent of 00.50 paisas share in S.Nos.29 and 31 and she was share holder to the extent of 00.16 paisas share in S.No,131 of deh Rajori, Taluka Tando Bago. Mst. Amna/respondent No,5 (plaintiff) and her sister Mst. Noor Jehan who are only the legal heirs of Mst. Chhattan, therefore, she made application for her share and possession thereof before the Assistant Commissioner, Matli during the year 2001, which was pending trial and during the pendency of such application she was married with Abdul Qadir and resided in village Nazar Pur and being pardanashin she did not pursue the application. It is averred that in November, 2010 she inquired about the pendency of her application through her husband; when the office of D.D.O. (Revenue), Mathi informed him that application made by his wife had been filed under order dated 28.4.2010 and under his order the Assistant Commissioner has mentioned that mother of the plaintiff has gifted her share in favour of the defendants Nos.4 and 5/applicants and Khata of her mother was mutated in their names as per entry No,112 dated 26.3.1994. Then plaintiff through her husband obtained the copy of order on 30.11.2010. Plaintiff/respondent No,5 narrated in the plaint that her mother Mst. Chhattan has never gifted her share, therefore, the gift made in village form VII-B as per-entry No,112 dated 26.3.1994 is totally false and fabricated and has been made fraudulently with the collusion of revenue staff, hence she sought cancellation of such gift and entry No,112 dated 26.3.1994. It is further submitted that the defendants Nos.4 and 5 have usurped the share of mother of the plaintiff through illegal mean, malafidely, with the .Collusion of 'revenue staff, though the plaintiff is 1-ekl daughter of Mst.
Chhattan and is entitled of inheritance in the property 'left by her mother. Lastly, she has prayed for judgment and decree to declare that the plaintiff being real daughter of Mst. Chattan is entitled for inheritance from the land viz. S.Nos.29, 31 and 131 of deh Rajoori, Taluka Tando Bago and that the entry No,112 dated 26.3.1994 be declared as false and fraudulent, which is liable to be cancelled. She has also claimed possession of the land as per her share.
3. The defendants Nos.4 and 5/ applicants contested the suit by filing written statement and stated that Mst. Chhattan gifted her entire share in S. Nos. 29, 31 and 131 of deh Rajoori, Taluka Tando Bago to them, through her gift statement before the Mukhtiarkaw, which was recorded in the gift statement book on the back page of gift statement register, on pages Nos.74 and 76 and the same was mutated in the Form VII vide entry No,112 dated 26.3.1994 and also the same was mutated in form VII-B of Revenue Record vide entry No,111 dated 26.3.1994. They have further submitted that Mst. Chhattan has filed application before A.C. Math I where she admitted that she gifted the suit land to the defendants in the year 1994. It is further stated that a `Qaboolyat' of compromise was also executed by her on 21.01.2002 in favour of defendants Nos.4 and 5. They have further stated that the plaintiff was ex wife of the respondent No,5 and he divorced her in the year 2001 and after divorce the plaintiff has filed suit in revenge. They further submitted that they are in cultivating possession of the suit land and the plaintiff is not entitled for inheritance of the suit land which was gifted by her mother to the defendants Nos. 4 and 5 and handed over physical possession of the suit land to them. It is submitted that the plaintiff is not entitled for relief as claimed in prayer clause.
4. On pleadings of the parties, following issues were settled by the trial Court.
1. Whether Mst. Chattan the mother of plaintiff gifted her share in survey Nos.29, 31 and 131 deh Rajoori, Taluka Tando Bago to the defendants Nos.4 and 5?
2. Whether the alleged gift in favour of defendants Nos.4 and 5 by Mst. Chattan is unlawful and same is liable to be cancelled?
3. Whether the plaintiff is entitled of inheritance from the land survey Nos.29, 31 and 131 of deh Rajoori, ' Taluka Tando Bago of Mst. Chattan?
4. Whether plaintiff accrued any cause of action against the defendants?
5. Whether suit is maintainable?
6. Whether plaintiff, is entitled for the relief claimed?
7. What should the decree be?
5 . Cursory examination of evidence transpires that issue No,1 was answered in affirmative and by answering issues Nos.2 to 6 in negative, the suit was dismissed and judgment of the trial Court was reversed by the appellate Court. A careful scrutiny of evidence, brought on the record reveals that in support of her contention, plaintiff namely Mst. Amna stated in her examination-in-chief that her mother had expired about six years back and she had left behind herself (Mst. Amina) and her sister Mst. Noor Jehan, hence she is legally entitled for share of her mother in the suit land and categorically stated that her mother did not gift her share to any person during her life time.
Further stated that both sisters were not informed by their mother about any gift executed by her in favour of any person or any villager; that the applicants/defendants Nos.4 and 5 are the cousins of her mother, have wrongly showed the gift deed of her mother regarding her property in collusion with revenue officers, who kept the entry in the names of applicants falsely, on the basis of false gift deed. She has prayed that the suit be decreed. In her cross-examination, she vehemently denied the version of the defendants. However, in defence the defendant Muhammad Ibrahim examined himself and stated that the gift deed of the suit land was executed by the mother of plaintiff in their favour and they accepted the gift before Mukhtiarkar in presence of husband of donor Mst.
Chhattan and such entry was kept in the revenue record, on the basis of gift statement vide entry Nos.111 and 112 dated 26.3.1994. He stated that Mst. Chhattan had filed application before A.C. Matli against the said gift' deed, but the said application was dismissed on 28.4.2001, which is produced in evidence as Ex.23. He has also stated that private `Faisla' was also held in their favour, therefore, the prayer of plaintiff for cancellation of gift deed may be dismissed. He further stated that plaintiff was divorced by him in the year 2001 and that she had filed suit in revenge against them. In cross- examination, defendant Muhammad Ibrahim admitted that he has not produced copy of statement of gift made by Mst. Chhattan in his favour. He further stated in cross-examination that Mst. Chhattan had shown her willingness for making gift statement before 4/5 days of the statement before Mukhtiarkar, Tando Bago and in presence of Abdullah and Muhammad Siddique.
He has also admitted that Ex.25. (statement of Mst. Chhattan) does not show her identification, however, he denied that he had produced another woman before Mukhtiarkar, Tando Bago for obtaining statement as Ex.25. He has further stated that private 'Faisla' was effected in the house of Mst. Chhattan. However, he denied that he had divorced the plaintiff because she demanded her share from the land of her mother. He. Also admitted that he did not produce any documentary proof showing his marriage with plaintiff. He has further stated in cross that "the plaintiff handed over the possession of the suit land at the site and she was also available at the suit land at the time of delivery of possession of suit land to us". Such statement of the applicant shows that donor Mst. Chhattan had never handed over the possession of suit land to Applicants. Copy of the order dated 28.4.2001 passed by Assistant Commissioner, Matli on the application of Mst. Chhattan, was also exhibited, which is reproduced herein below in verbatim:-- "ORDER:- ' This is an application made by above named lady applicant, wherein she applied that the land area 14-22 acres situated in deh Rajoori No: 1 taluka-Tando bago belonging to her, has been possessed by the respondent Muhammad Ibrahim un- authorizedly, due to matrimonial affairs and she further prayed that the disputed land may be returned back to her from the possession of respondent.
' I called both the parties heard them, perused the relevant revenue record produced by Tapedar concerned and also perused the documents produced by the parties, From aforesaid exercise/examination is revealed that joint land bearing survey numbers 29 and others situated in deh Rajoori No,1 taluka Tando Bago has already been gifted by applicant lady and other donors in the names of above respondents during 1994 as per revenue entry No, 112 dated 26.3.1994 of V.F. VII- B of deh Rajoori No,1 taluka Tando Bago. More over the disputed land is mortgaged in ADBP Tando Bago branch and the loan has been taken by the Respondents, such note is existing on the record of rights.
' At this stage the applicant is required to seek remedy of revocation/cancellation of gift made in favour of Respondents, as the gift is complete one with the prosecution having with the Respondents.
' Keeping in view the above circumstances it is not fair case for trial by this Court on the basis of present application made by applicant.
' I therefore, file this application with directions to the parties that aggrieved party may seek remedy from competent authority by making proper application."
' He has also produced original Qaboolyat Razanami babat,' allegedly executed on 22.1.2002 which bears 'RTI of Mst. Chhattan and others attested by Nazim, Taluka Council, Tando Bago after six days of its execution on 28.2.20.02. Statement of Mst.Chhattan made before Mukhtiarkar on 25.1.2002 has also been produced by he defendant Muhammad Ibrahim.
6. It shall be advantageous to discuss here the evidence of Revenue Officer. D.W. Shoukat Ali, Mukhtiarkar Revenue, Tando Bago, being custodian of the record, who stated that the book of statement is not traceable in their office, but he produced copies of entries Nos.111 (Ex.29) and 112 (Ex.30). He admitted in cross-examination that he has not produced `Dakhal Kharij' register of entries Nos.111 and 112 of deh Rajoori No,1, Taluka Tando Bago. He has also admitted that entries Nos.111 and 112 show that Mst. Chhattan, Muhammad Juman and Mst. Bakhtawar have gifted out their land to Noor Muhammad and Muhammad Ibrahim (applicants). He has further admitted that he has not produced book of statement of this gift, as the same is not traceable. He has also admitted that as the book of statement is not traceable, therefore, he cannot say that who was donor and donee and what they have stated in their statements. He admitted that there is overwriting on entry No,112 without any initial on it.
7. Arguments heard. Record perused.
8. Admittedly, both parties are closely related to each other, having strained acrimonious relations, therefore, the deposition of Mukhtiarkar; mentioned supra, at para No, 6 is very much material. Due to non-availability of original record, more particularly, the alleged statement of late Mst. Chhattan beside other relevant documents, it cannot be safely observed that she put her thumb impression on the alleged gift deed with her own consent and free will, without disclosing to her legal heirs/two daughters including the plaintiff Mst. Amna. Had there been such genuine/valid gift deed then, there was no need of filing application for cancellation of said gift by late Mst. Chhattan before A.C.
Matli, which was not decided on merits being not a 'proper forum, as Mukhtiarkar observed that necessary entry was already made in the relevant record. It is, however, not a disputed fact that plaintiff Mst. Amna is real daughter of late Mst. Chattan, who was sole owner of the suit property, having share in certain survey number Rs, 8(sic) In such view of the matter, the learned appellate Court has observed that neither declaration of donor nor acceptance of donee through document or verbal, have been brought on record by the applicants/defendants and the book of statement was neither produced by them nor by the Mukhtiarkar (Revenue), Tando Bago. Exhibiting only entries on record does not 'ipso facto' entitles the defendants as owners of the suit land through gift deed, more particularly, the alleged statements was not brought on the record; more so, burden in such circumstances lies upon the beneficiaries/defendants Nos.4 A and 5 (applicants) to prove such documents, but they have not produced any attesting witness nor ascribe of the alleged gift. The concerned Mukhtiarkar being a defendants/ applicants witness did not support their case by not producing the relevant documents on record, hence the learned appellate Court observed that there is misreading and misappropriation of evidence by the trial Court while dismissing the F.C. Suit No,30 of 2011.
9. It will not be out of context to mention here that the defendant/applicant. Ibrahim, who examined himself, was not a witness of gift i,e, verbal or written. It is needless to point out that there are three essentials of gift in the Muhammadan Law (i) A declaration of gift by donor (ii) An express or implied acceptance of gift by the donee; or (iii) delivery and possession of the gifted property by the donor to the donee; The evidence of the revenue officer/Mukhtiarkar namely Shoukat Ali, discussed as supra, at para No,06, reveals that he, being custodian of the record, stated that the book of the statement was not found traceable in his office, on the basis of which, the alleged donor has made such gift. He has also not produced " Dakhal Kharit Register, showing the entries Nos.111 and 112 of the land in question. He stated that Mst. Chhuttan (mother of the respondent No,5) and two other donors namely Muhammad Juman and Mst. Bakhtawar have gifted out their lands to the applicants but such fact had been suppressed by the applicants. By not producing the alleged statement of gift, made by mother of the respondent No,5, the said revenue officer has stated that the same is not traceable hence he cannot say who was the donor and donee and what they have stated in their statements; more particularly, he admitted the overwriting in the entry No,112 without any initial on it. The non-production of afforested material documents nullifies the alleged statement or the gift at the very inception. The entries in the record of rights are undoubtedly admissible in evidence; but their penitentiary value depends upon the peculiar facts and circumstances of each case, as onus lies on the person who wants to establish the genuineness of transfer by gift.
10. As far the question of limitation is concerned, since the matter relates to inheritance and both parties are closely relatives, therefore, no limitation would run in such cases, more particularly, it is an admitted fact that the alliged donor or her daughter/respondent No,5 are illiterate and Tarda' observing ladies. Under the garb of mere revenue entries, those are lacking the statement of gift in favour of the applicants, who have miserably failed to prove the genuineness of the entries in the revenue record by producing independent, confidence inspiring and cogent evidence, therefore, the respondent No,5 cannot be deprived of her ancestral rights as the ingredients of the gift are required to be proved through strict and confidence inspiring evidence. The revenue entries itself are not sufficient, which do not confer any right or title in favour of donees/ applicants as held by the Hon'ble Supreme Court in a reported case 2004 SCM R 1502. Relevant portion reads in the following manner:-- "There is no cavil about the legal proposition that the entry in the revenue record is neither a document of title nor presumptive evidence of title and person may not feel aggrieve of such entry and cause of action in such a case would not accrue when the mutation order-in-original or appellate or revisional was made. The cause of action would accrue when a person concerned would feel himself aggrieve of the situation when he would feel it necessary to approach Court of law for relief, which he considered fit and proper in accordance with law. "
11. In such view of the matter, the suit was filed within time and in support of such context, I am fortified by the judgment reported in 2007 SCMR 637 and PLD 1990 SC 1, the relevant paragraphs of both the judgments are reproduced herein below:-- "The similar effect is the decision in Najabat and others v. Saban Bibi and others (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to' denial or rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries. "
2007 SCM R 635 'It is a proposition too well-established by now that as soon as someone who owns some properties, -dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue Authorities or any other State agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the Revenue Record was maintained only for realization of land revenue and did not by itself confer any title on anyone. It may also be added that afflux of time did not extinguish any rights of inheritance because on the death of an owner of the property, all the co-inheritors immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor- in- interest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharers/coinheritors in such land was denied by someone. "
12. It has come in the evidence that all the donors/donees were not present at the time of sanctioning of mutations. It is settled law that it is duty and obligation of the beneficiary to produce the mutation by producing the evidence in accordance with the accepted principles and in terms of Articles 72 and 78 of Qanun-e-Shahadat, 1984 and in terms of section 42(7) of West Pakistan Land Revenue Act, 1967, otherwise, it does not create any title. Once again adverting to the revenue entries, it may be observed that even the entries brought on the record are not sufficient proof of gift for the reasons that the aforesaid entries would not confer any right in the property as there is no sufficient proof of the statement of donor in favour of donees/applicants, which shows that the donor herself does not attend the revenue office, therefore, the same would of no consequence.
Anyhow, the factum of attestation of mutation within the purview of provisions of ubsection (7) of Section 42 of Land Revenue Act, 1967 reads in the following manner:- "Except in cases of inheritance or where the acquisition of the right is by an registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection
(6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Union Committee or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations. "
13. The aforementioned provision of Land Revenue Act requires the presence of person whose right has been acquired and the identification of such person at least by two respectable persons is inevitable, however the facts of the instant case transpires that there is absolutely lack of compliance of subsection (7) of section 42 of Land Revenue Act, 1967. In such context, factum laid down by the apex Court in a reported judgment 2005 SCM R 911; reads as under:-- "in confirming the two judgments of the learned subordinate Courts as would appear from para, 4 of its judgment, was influenced by the fact that it had been admitted by Kabool Ahmed Councillor that he and Siddique donor had not gone to the Patwari for the purpose of seeking entry of mutation of gift and this admission accordingly the Hon'ble High Court had taken away the "very bottom" of Khalil defendant's assertion that a valid gift had been made in his favour and that the mutation in question had been lawfully entered and attested. We say with respect that entering a mutation or reporting the factum of acquisition of any right in an estate to. The Patwari was a mere ministerial act, which did not confer or extinguish any right in any property and thus nothing really hinged on the same. As would be evident from section 42 of Land Revenue Act no witnesses or respectable were required either to accompany the person reporting acquisition of such an interest to the Patwari nor to witness the entering of a mutation in the said connection. Therefore, even if it be presumed that the witnesses in question or even the donor himself had not gone to the Patwari for the said purpose, even then the same is of no consequence vis-a-vis the validity of a consequently attested mutation. What is relevant is the factum of attestation of mutation, which exercise had to be done by the Revenue Officer under subsection (7) of the said section 42 of the Land Revenue Act, 1967 in the presence of the person, whose right had been acquired after such person had been identified by at least two respectable persons preferably from amongst the Lambardar or member of the Union Council etc. "
14. It is also evident from the revenue record that the witnesses of the alleged gift were not examined by the applicants; therefore; factum of gift makes the gift doubtful as held by the apex Court in a reported judgment viz. 2000 SCM R 346:-- "The contention that the suit of Mst. Janatary Bibi was beyond time is also misconceived is that the findings about the procurement of the gift rightly held to be doubtful by the learned Additional District Judge and the learned Judge in chamber Rs, The story of gift having been held; to be doubtful, the same is in itself sufficient to take the instant case out of the purview of the period of limitation prescribed in Article 120 of the Limitation Act. May be observed that Petitioners predecessor-in-interest i,e, defendant Abdul Aziz did not enter the witness-box and thereby failed to discharge the burden of proof on him to establish a valid gift. Further, the absence of the Revenue Officer who allegedly attested the mutation. It also conspicuous and tells a lot about the nature of the alleged transaction of gift being what has been held to be by the Appellate Forum with which the High Court has concurred. The learned Judge in Chambers considered the peculiar circumstances of this case and rightly relied upon the case of Ghulam Ali (PLD 1990 SC 1) for coming to the conclusion that the tendency in this part of the country that male members of the family try to deprive the females of their legitimate inheritance is dying out by inches and that the very spirit of this tendency is kept alive by perpetrating fraud with the connivance of the Revenue Officials. "
15. Whatever stated above, more particularly, in light of the dicta as laid down by the Hon'ble apex Court, it is suffice to say that the impugned appellate judgment is speaking one based on correct appreciation of evidence, therefore, it does not indicate interference by this Court by exercising revisional jurisdiction. Resultantly, Revision Application is dismissed with no order as to cost.