1. This revision petition is directed against the judgment and decree dated 17.1.2012, passed by learned Additional District Judge, Lahor, Swabi, whereby appeal of petitioner against the judgment and decree dated 30.10.2010, passed by learned Civil Judge, Lahor, was dismissed.
2. Brief facts of the case are that petitioner filed a suit for declaration to the effect that Mutation No, 4964 dated 2.2.1972, attested in favour of Mst. Tajbaro by one Mst. Ferozai in respect of land measuring. 65 Kanals, 13 Marla, subsequent gift Mutation No, 6342 attested on 5.10.1981 and further mutation in favour of respondents/defendants are based on fraud, against facts and law and are ineffective upon the rights of petitioner/plaintiff. The suit was contested by respondents/defendants through filing written statement. From the divergent pleadings of the parties, the learned trial Court framed the following issues:-- ISSUES: 1.Whether plaintiff has got a cause of action?
2. 2.Whether suit of the plaintiff is time barred?
3. 3.Whether plaintiff is estopped to sue?
4. 4.Whether the instant suit is not competent in. its present form?
5. 5.Whether the instant suit is bad for non joinder and misjoinder of necessary parties?
6. 6.Whether the plaintiff is owner of suit property being the sole legal heir of deceased Mst. Ferozai.
7. 7.Whether the Tamleek Mutation No, 4964 dated 2.2.1972 executed by Mst. Ferozai in favour of Mst.
8. Tajbaro and Mutation No 6342 dated 5.10.1981 executed by Mst. Tajbaro in favour of Defendants No, 1 to 4 are wrong, illegal, ineffective upon the rights of plaintiff and are liable to cancellation?
9. 8.Whether the plaintiff is entitled to the decree as prayed for?
10. 9.What should be the Relief?
11. 3.Both the parties recorded their pro & contra evidence and after hearing arguments of learned counsel for the parties, the learned trial Court dismissed the suit of petitioner vide judgment and decree dated 30.10.2010. Dissatisfied from the same, the petitioner filed Regular Civil appeal, which was also dismissed by the appellate Court vide impugned judgment and decree dated 17.1.2012, hence the instant revision petition filed by the petitioner.
12. 4.Arguments heard and record perused.
13. 5.From the perusal of record, it reveals that the gift Mutation No, 4964 Ex.PW.2/2 in respect of 65 Kanals, 13 Marlas was attested on 2.2.1972 by Donor Mst. Ferozai being issueless in favour of Mst.
14. Tajbaro (Donee) who was the wife of brother of Donor. At that time one Khwaja Muhammad brother of Donor was alive and they all were living together in the house of said Khawaja Muhammad. Lateron, Mst. Tajbaro had transferred an area of 63 Kanals and 3 Marla out of suit property in favour of defendents No, 1 to 4 vide gift Mutation No, 6342 dated 5.10.1981. Thereafter, Defendants No, 4 transferred her share to the extent of 12 Kanal and 18 Marlas in favour of Defendants No, 5 to 9, vide Mutation No, 6628 dated 20.2.1984. Likewise Defendant No, 2 transferred her share in favour of Defendants No, 10 toll.
15. 6.It is pertinent to mention that at the time of attestation of Mutation No, 4964 dated 2.2.1972, the brother of Donor namely Khawaja Muhammad was alive but he did not challenge the said mutation who died after the death of Donor. During life time of Donor, Mst. Tajbaro (Donee) further transferred the land in favour of Defendants No, 1 to 4 but the Donor Mst. Ferozai who died in the year 1977-78 after 5/6 years of attestation of first mutation neither filed any suit for cancellation of any of mutations attested in favour of Donee Mst. Tajbaro or Defendants No, 1 to 4 and other transferees. If the Donee had any objection or both these mutations were the result of fraud etc, then she had the remedy of challenging the same but she did not do so despite being alive for 5/6 years after attestation of said mutation.
16. 7.The ingredients of gift were fulfilled at the time of attestation of gift mutation, i.e, offer/declaration, acceptance and delivery of possession. If the brother of Mst. Ferozai, or plaintiff were not aware about the said gift, then being present in the village, had knowledge of delivery of possession to the other defendants because the possession to the Donee Mst. Tajbaro and as after death of Mst. Ferozai, the possession was remained with Defendants No, 1 to 4 and lateron with the Defendants No, 5 to 9, in the light of Mutation No, 6628 attested on 20.2.1984. If the petitioner was aggrieved of the said mutations, then he should have filed civil suit for cancellation of the said mutations when after the death of Mst. Ferozai (Donor) some of her property devolved upon petitioner vide inheritance mutation in the year 1983, meaning thereby that he was fully aware of the whole proceedings, knowing the whole truth of attestation of above mutations since 1983. Had there been any fraud committed by Mst. Tajbaro of subsequent transferees/defendants then the petitioner would have challenged the same but he remained silent for such a long period.
17. 8.So far as contention of petitioner that Mst. Ferozai was of unsound mind, he did not produce any documentary evidence i.e, some medical record or other strong & confidence inspiring evidence in support of his stance regarding incapacitation due to mental disorder of said Mst. Ferozai. Even in his statement recorded as PW.3, he admitted that the plaint was drafted at his instance and he is unable to describe any detail regarding mental disease of Mst. Ferozai nor can produce any evidence regarding her illness or she was bed ridden and in condition of Marazul Maut at the time of attestation of impugned Gift Mutation to Mst. Tajbaro. During cross-examination, he admitted that Khwja Muhammad brother of Donor had not challenged the said Gift mutations in his life time One Ayaz (PW.4) produced by petitioner was unable to disclose the name of husband or brother of Donor and stated that he had seen the Donor lastly 25 years ago so how can he is able to depose about a person whom he had seen 25 years ago and also not aware of the names of her husband and brother. The other witness of the plaintiff namely Bahadar Khan (PW.5) stated that the disputed land was given to him for cultivating purpose on lease (pata) by petitioner in the year, 1964 and he used to give produce to the petitioner which is also not appealable to a prudent mind as according to petitioner at the time of attestation of mutation in the year 1972, he was 12 years old, meaning thereby that in the year, 1964 he was 4 years old so how a minor kid of 4 years of age can lease a property of a third person to another person for cultivation especially when the husband of Donor was alive till 1969 then how this witness gave produce to a minor who was not nearer in relation, to Donor than her husband or real brother, so this kind of deposition creating doubt in the credibility of the witness could not be relied upon hence the evidence produced by petitioner/plaintiff in support of his claim is not trustworthy and confidence inspiring which could not be considered sufficient for proving the fact um of alleged fraud or other allegations.
9. Even if it is presumed that the Donor was of unsound mind, then the burden of proof lies on the petitioner to prove her mental illness and incapability by producing strong oral as well as documentary evidence but he failed to substantiate by producing Medical Expert who was treating her (Donor) being his patient. Mere oral assertion regarding mental health condition of a person is not sufficient proof until and unless it was corroborated by strong, confidence inspiring evidence which is lacking in the instant case therefore, petitioner failed to discharge the burden on him.
18. 10.The other stance of petitioner regarding committing fraud in respect of above mutations is also of no help to him as he failed to bring on record any strong evidence showing that Donee or defendants have committed any fraud or participated in any manner during preparation of said Gift documents being forged one. The petitioner has not expressly mentioned the particulars of fraud alleged in his plaint nor in the evidence produced by him. In this respect reliance can be placed on the cases titled, "Ghulam Rasool us. Muhammad Akram" (1988 SCMR 1088 (g)), Muhammad Ashfaq vs. Chaudhri Muhammad Nawaz (2008 SCMR 1098), Haji Abdul Ghafoor through LRs vs. Ghulam Sadiq through LRs (PLD 2007 SC 43).
19. The initial burden to prove fraud or other allegations was upon petitioner/plaintiff who failed to discharge the same. In this respect reliance is placed on the case titled, "Noor. Muhammad vs. Jamal Din & others" (2000 CLC 305) wherein it was held that burden of proof lies upon the party who alleges fraud and similarly in another judgment of Hon'ble Lahore High Court, Lahore, in case "Kaloo & 3 others vs. Hassan Bakhsh & 3 others (2000 YLR 2473(C), wherein it has been held that he who alleges fraud, he would prove the same.
11. The arguments of learned counsel for petitioner that impugned gift to Mst. Tajbaro is invalid under Sharia is also misconceived and not tenable as under Islamic Law there is no prohibition for a Muslim donor to gift his/ her immoveable property in preference to his legal heirs. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan in case titled as Noor Muhammad Khan vs. Habib Ullah Khan (PLD 1994 SC 650).
20. 12.The impugned Gift mutations were duly entered in the revenue record in the life time of Mst.
21. Ferozai and during her life time neither she nor her real brother Khawaja Muhammad nor the petitioner denied the said mutations and entries remained consistent in the revenue record for more than 30 years. The witnesses produced in respect of revenue record, also affirmed the fact um of said entries in the names of Mst. Tajbaro, Defendants No, 1 to 4 and other defendants. None of the witnesses of revenue record uttered a single word that the said mutation has been entered without consent of Donor or she was of unsound mind or she was not present at the time of execution of gift mutation.
22. 13.Moreover, the gift Mutation No, 4964 was attested on 2.2.1972 but the same was challenged originally on 24.5.2004 despite the fact that some shari share of other property of Donor was devolved on the petitioner through inheritance Mutation No, 14599 in the year, 1983 so naturally if there was any other property in the name of Donor, it would have also been come in inheritance of petitioner meaning thereby that at the time of her demise suit land was not in the name of Donor.
23. Besides, other mutations were also attested on the strength of impugned gift mutation vide which the title of suit land transferred from one to the subsequent transferee but the petitioner/plaintiff kept mum during all these transaction for about 21 years therefore, the suit of petitioner is also badly barred by time and he period for challenging such like mutation, is provided Six (6) years under Article 120 of Limitation Act, 1908. In this regard wisdom is derived from the judgment of Hon %le Supreme Court of Pakistan in case titled as "Noor Din & others' vs. Additional District Judge Lahore others" (2014 SCM R 513).
14. Learned counsel for petitioner failed to point out any illegality, misreading or non-reading of evidence in the impugned judgments of both the Courts below, which needs no interference by this Court.
24. 15, For what has been discussed above, this petition being bereft of merit is dismissed.