Through the instant civil revision petitioners-plaintiffs (petitioners) have assailed the concurrent judgments/decrees dated 30.09.2010 and 02.07.2011 passed by learned Civil Judge, Bahawalpur and learned Additional District Judge Bahawalpur respectively by which suit of present petitioners for declaration stood dismissed.
2. The factual matrix culminating into instant civil revision and necessary for its decision is that Mst. Faiz Elahi. deceased (real mother of present petitioners) Imam Bakhsh, Mst. Atta Elahi and Mst. Shaman Maie alias Shamim Maie respondents- efendants (respondents) are inter se real sisters and brother. Their mother Janan Bibi and father Muhammad Bakhsh both deceased owned 88 kanal 11 marla and 135 kanal 18 marla land respectively situated in Mouza Quta pur, Tehsil Hasilpur, District Bahawalpur, who purportedly gifted away the same vide impugned mutations of Tamleek Nos. 1194 Exh.P1 and 1195 Exh.P2 both attested on 18.09.1984 in favour of their son Imam Bakhsh (Respondent No.1). After their death, Mst. Faiz Elahi, mother of petitioners on 12.05.2007 filed a suit for declaration to the effect that after divorce to her by her husband, she was given possession of 45 kanal land (her expected share in inheritance) by her parents and she was enjoying possession of the same, the impugned mutations of Tamleek were against facts, law and based on fraud and misrepresentation and at the time of purported Tamleek, they were weak and on death bed so she prayed for a decree for declaration that she was owner-in-possession of suit land measuring 45 kanal and the impugned mutations were invalid and ineffective upon her rights.
3. Respondent No.1 vehemently contested the suit, denied all the contentions of the predecessor-in-interest of present petitioners, whereas respondents No.2 and 3 filed conceding written statement and also got recorded their better statement in this regard. Vide judgment and decree dated 30.09.2010 passed by learned Civil Judge, Hasilpur District Bahawalpur, while answering crucial issues Nos. 1 and 2 against the present petitioners, their suit was dismissed. The petitioners filed an appeal before learned Additional District Judge, Hasilpur who vide impugned judgment dated 02.07.2011 concurred with the impugned judgment and dismissed the appeal. As such petitioners have filed the instant civil revision mainly on the grounds that impugned judgments are against facts, law and suf fer from misreading and non-reading of evidence, therefore, not sustainable.
4. I have heard submission of learned counsel for the parties and perused the record.
5. To substantiate their claim, petitioners have produced three witnesses. PW-1 Hafiz Khairat Hussain one of the petitioners has deposed that his maternal grandmother (Nani) Janan Bibi had given the suit property measuring 45 kanal to his mother Mst. Faiz Elahi deceased and presently petitioners are in possession of that property. It was settled that at the time of attestation of mutation of inheritance any claim regarding increase or decrease in share/s will be settled/adjusted. The impugned mutations of Tamleek have been concealed from them and the alleged donors had not gifted away their landed property to respondent No.l.
PW-2 Muhammad Nawab has deposed that petitioners are in possession of suit-property which was given to them by their maternal grandparents. PW-3 Mukhtar Ahmad deposed that the petitioners are in possession of the suit-property, and the impugned mutations were not validly got attested by both donors, as they were suffering from ailment. As such the petitioners by producing these witnesses discharged the initial onus of proving the fact that the impugned mutations were not validly attested. In view of case law 2016 S DINIR 1417 'Peer Bakhsh LRs and others versus Mst. Khanzadir. others', 19t3'7 SCMR 1832 Hakim Khan versus Nazeer Ahmad Lughrnani and 10 others and 2008 SCMR 235 Muhammad Iqbal and another versus Mukhtar Ahmad through L.Rs., it was obligatory for respondent No. 1 /beneficiary of impugned mutations of Tamleek to establish that the same were validly entered and got attested by his parents. As per settled Law heavy onus would lie on beneficiary to prove by convincing and cogent evidence, satisfying the judicial conscience of the Court that gift transaction was executed in favour of donee by the donor. Mutation was not a proof of title and a beneficiary of the same must prove the original transaction.
Respondent No.1 as DW-1 in his examination-in-chief deposed that about 25/26 years back at 09/10 a.m. his father summoned his sisters and in presence of DW-3 Abdul Ghaffar, his brother Ghulam Qadir (father-in-law of DW-1) informed his sisters that he was transferring his property in favour of his son (respondent No.1) and at that time his sisters accepted the factum of Tamleek. The mutation of gift was attested in Mouza Alipur and at that time possess ion of land was also delivered to him. During cross- examination he conceded that Chiragh Shah and Khadam Hussain (attesting witnesses of mutations) were present before the Revenue OffiDer at the time of attestation of impugned mutations of Tamleek but none of them had appeared in the witness box. He conceded that Khadam Hussain Shah was not Lumberdar of Mouza Qutabpur (as has been shown in the impugned mutation of Tamleek Exh.P1). DW-2 Hajan Shamim Maie/respondent No.3 corroborated version of her brother DW 1/respondent No.1. She is unmarried and dependent on respondent No.1 and residing with him. As such she cannot be treated as an independent witness. Similar is the version of DW-3 Abdul Ghaffar (real brother of father-in-law of respondent No.1) and during cross-examination he frankly conceded that when mutations of Tamleek were entered, he was not present. DW-5 Qasim Ali Ex Patwari deposed that he has entered mutations of Tamleek No. 1194 and 1195 at the instance/direction of Hajan Janan I3ibi and Muhammad Bakhsh, both attested on 18.09.1984 by the C.O. During cross-examination he conceded that no Lumberdar was witness of impugned mutations of Tamleek and that Khadam Hussain Shah attesting witness of mutations has been recorded by the C.O. as Lumberdar. He further admitted that as per entries in Column "Kaifiat" of mutation No.1194 Exh.P1, it was not got recorded by Hajan Janan Maie donor accompanied by her husband. So this fact alone establishes that she never intended to transfer her land in favour of respondent No.1 /her son. Moreover, being parda-nasheen simple old villager, she was not aware of nature of transaction, not so explained to her and its legal consequences, and she had no independent aclyice from a trustworthy and reliable source.
6. Exh.D7 copy of Khasra Gardawri for the period from 20.03.1989 to 15.03.1994 indicates that respondent No.1 is co-sharer of the suit property and 'ne was not delivered possession of land at the time of attestation of mutations of Tarnleek, in the year 1984.
7. The careful perusal of evidence of DWs establishes that Janan Maie deceased has neither made any offer of Tamleek in favour of respondent No.1 nor respondent No.1 has accepted any such offer. The possession was also not delivered on the date of entry or attestation of mutations of Tamleek. As per monogram (para) 138 of Principles of Mahomedan Law by Dr. M. A. Mannan, Hiba is "transfer of property, made immediately, and without any exchange" by one person to another and accepted by or on behalf of the latter. DW-1/respondent in his examination in-chief has riot stated that when his father made offer of gift, he accepted the offer. As per monogram (para) 149 of Principles of Mahomedan Law Ibid, the three essentials of a gift are (i) a declaration of gift by donor, (2) an acceptance of gift, express or implied, by or on behalf of the donee and (3) delivery of possession of the subject of the gift by donor to the donee. In Precedents 2012 SCMR 1602 Mst. Shafqat parveen versus Muhammad Iftikhar Amjad, 2010 SCMR. 342 Muhammad Ejaz versus Mst. Khalida Awan and another and 2009 SCMR 623 and Mst. Nagina Begum versus Mst.
Tahzim Akhtar and other these three ingredients of a valid gift under Mohammaden Law have been reiterated. None of the attesting witnesses of mutations of Tamleek has appeared in the witness box to prove the validity of these mutations and factum of delivery of possession. Their non-production in witness box is fatal to the case of contesting respondents. Reliance is place on 2016 SCMR 986 Islam- ud-Din through L.Rs. and others versus Mst. Noor Jar an through L.Rs. and others. In this reported case, out of the two attesting witnesses of mutation, only one was produced and thus the validity of mutation was discarded.
8. The plea of respondent No.1 that immediately after attestation of impugned mutations of Tamleek, possession was delivered to him is negated from copy of Khasra Gardawri Exh.D7 indicating that donee was delivered possession in the year 1989. As such requisite ingredients of gift could not be proved by respondent No. 1. Reliance is placed on 2002 SCMR 1938 Barkat Ali versus Muhammad Ismail, wherein it has been laid down that necessary ingredients of gift are offer by donor , acceptance by donee and delivery of possession.
9. No date, time or place has been mentioned in written statement or in evidence regarding Tamleek by the donors. PWs and DWs have stated that donors were true Muslims and as such it is not believable that they would have taken un-Islamic decision to deprive of their three daughters including one divorcee having 6 minor issues, of their inheritance and would transfer their entire land in favour of their sole son, particularly when it is not pleaded or proved by respondent No.1 that he has served his parents and they out of love and affection entered into such transaction. Reliance is placed on 2002 SCMR 1938 supra, wherein it was held that no reason had been furnished by the donor for the gift and as such, grant of gift, in the circumstances, seemed to be mala fide. The facts of instant case are quite identical to the facts of Precedent 2016 SCMR 1417 referred supra in which mutation of gift of property in favour of son to the exclusion of daughters was disbelieved as essential ingredients of gift were not proved and neither particulars of gift i.e. time, date, place and witnesses of declaration were pleaded in plaint nor any evidence was produced to prove the same. Thus it is established that factum of Tamleek could not be established and the donors have no intention to transfer their holdings in favour of respondent No.1, as such these mutations are based on fraud and void and limitation did not run against void transactions.
10. As a sequel of above discussion, to my view, the concurrent: findings of the courts below that both the donors have validly gifted away their entire land in favour of respondent No.1 to the exclusion of three daughters including one divorcee mother of six issues/petitioners, are erroneous, result of misreading and non-reading of evidence and they have failed to properly exercise the jurisdiction vested with them, as such impugned judgments/decrees are not sustainable. In Precedent 2016 SCMR 986 supra, it has been laid down that the High Court is competent to set aside concurrent findings of courts below and decree the suit in exercise of its revisional jurisdiction. Consequently, the instant civil revision is allowed, both the impugned judgments and decrees are set aside and the suit filed by the petitioners is decreed in their favour and against the respondents, the impugned mutations of Tamleek are also set aside and all the legal heirs of Janan Bibi and Muhammad Bakhsh deceased will inherit their revenue estate according to their Sharie shares and Mohammaden Law of inheritance.