Shujaat Ali Khan, J : - C.M No.3150 of 2016 Through this application the applicants/petitioners have sought permission to place on record documents appended with this application on the ground that they could not append the same at the time of filing of the revision petition due to some inadvertence.
2. Learned counsel appearing on behalf of the respondents has vehemently opposed this application on the ground that according to Section 115 CPC the petitioners were supposed to append all the documents forming part of the record of lower fora but as they failed to do so this application has been filed to make up the said deficiency .
3. After hearing learned counsel for the applicants as well as the respondents, I have noted that the documents appended with this application relate to record of lower courts, thus, the request of the applicants cannot turned down simply for the reason that according to Section 115 CPC this court enjoys power to summon record of lower court even if no proceedings are pending before it. Consequently , the application in hand is allowed.
Main Case
4. Unnecessary details apart, Mst. Naze er Mai (predecessor- in-interest of the respondents) filed suit against Ghulam Hassan (predecessor-in-interest of the present petitioners) seeking declaration to the effect that gift mutation bearing No.652 was illegal, unlawful and result of collusion and fraud. The learned Civil Judge decreed the suit vide judgment and decree, dated 30.10.2007. Aggrieved by the judgment and decree passed by the learned Civil Judge, the present petitioner s filed an appeal but without any success as the same was dismissed by the learned Appellate Court through judgment & decree, dated 13.05.2009, hence this petition.
5. Learned counsel for the petitioners submits that as predecessor-in-interest of the respondents did not produce copy of mutation No.652 during the course of affirmative evidence she could not be allowed to produce the same at the time of recording of evidence in rebuttal; that in the garb of additional evidence, the predecessor-in-interest of respondents could not be allowed to improve her case and remove lacunas surfaced on the scene after recording evidence of the parties; that though predecessor-in-interest of the respondents was permitted to lead additional evidence but the petitioners were not allowed to rebut those documents which were produced by predecessor-in - interest of the respondents; that as predecessor-in-interest of the respondents only produced part patwar of mutation No.652, the same could not be brought on record through the statement of the learned counsel for predecessor-in-interest of the respondent s as it had no sanctity in the eye of law; that the hollowness of the claim of predecessor-in-interest of the respondents/the respondents is clear from the fact that the land mentioned in the plaint does not tally with that mentioned in the mutation and that it is a fit case for remand. To fortify his contentions learned counsel for the petitioners has relied upon the cases reported as Farman Ali v. Muhammad Ishaq (PLD 2013 SC 392), M/s Bata Shoe Company and 2 others v. Muhammad Arshad Siddiqui (1991 SCMR 1775 ), Tariq Mehmood v. Contractor Ahmed Din and 4 others (2009 PSC 724), Allah Diwaya and others v. Mst. Sukah Khatoon and others (2012 MLD 1300 ), Mst. Sharman and 11 others v. Syed Ali Hussain and 8 others (2006 YLR 130), Haji Nazir Muhammad Khan and others v. Maulvi Muhammad Hassan and others (2006 PLR 573), Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar (2001 CLC 1721 ), Naseer Ahmed v. District Judge Multan and 4 others (PLD 1992 Lahore 92), Rana Muhammad Shabbir (deceased) through his L.Rs. v. Muhammad Ismail and 3 others (1990 CLC 546 ) and Murid Hussain v . Muhammad Lal (1987 CLC 101 ).
6. Conversely , learned counsel appearing on behalf of the respondents, while defending the impugned judgments and decrees, submits that as there is no ground for remand of the case in the civil revision, the oral prayer of learned counsel for the petitioners in that regard cannot be entertained; that in terms of Section 115 CPC, the petitioners were bound to place on record all available documents but having not done so, the instant petition is liable to be dismissed; that as predecessor-in interest of the respondents produced additional evidence with permission of the court, no premium can be given to the petitioners on the ground that the same was not produced according to the law on the subject as the order of the court of first instance granting permission to predecessor-in- interest of the respondents to lead additional evidence was not challenged by the petitioners before the higher forum, the same attained finality and is not open to interference by this Court in its revisional jurisdiction; that while filing the instant revision petition the petitioners have attached documents of their choice just to mislead the court; that predecessor-in-interest of the respondents based her claim on her date of birth in the CNIC as well as Nikah Nama but the petitioners failed to impeach validity of said documents; that in case the matter is remanded to the fora below , the respondents would suffer immensely as firstly their predecessor-in -interest and after her death the respondents have been pursuing the matter since 2002; that predecessor-in-interest of the respondents filed an application for provision of copy of part sarkar of the disputed mutation whereupon it was reported that part sarkar was not available then she produced part patwar with permission of the Court; that when the petitioners themselves produced copy of part patwar in evidence they had no cheeks to grous e against the exhibition of same document by predecessor-in-interest of the respondents; that as additional evidence was recorded by the court of first instance without any objection from the petitioner s' side, no plea in that regard can be entertained at this stage; that as a matter of fact, the petitioners failed to prove the execution of valid gift in favour of their predecessor-in-interest thus the courts below have committed no illegality while deciding the matter in favour of predecessor-in-interest of the respondents. Relies upon Syed Muhammad Baqir Shah v. Farida Sajid (2013 CLC 52) and Muhammad Moosa and others v . Bashir Ahmad (2013 MLD 108 ).
7. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that as according to Order XVIII CPC the first right to begin lies with the plaintif f and he/she cannot be allowed to produce evidence in affirmative after completion of evidence of both sides.
8. I have heard learned counsel for the parties and have also gone through the relevant record in addition to the case-law cited at the bar .
9. Firstly , taking up the plea of learned counsel for the petitioners that after closur e of the evidence by both sides, permission for additional evidence could not be allowed to the predecessor-in-interest of the respondents, I am of the view that a perusal of application submitted by the predecessor-in-intere st of the respondents seeking permission of court to bring on record copies of mutations No.650, 652, Nikah Nama, dated 22.06.1959, and summoning of witness from office of the District Officer (Revenue) shows that the said application was filed inter-alia on the ground that the petitioners denied the genuineness of the said documents. The said application was allowed by the learned Civil Judge vide order, dated 26.05.2005. Admittedly the said order remained intact till the decision of the mater by the court of first instance, thus, the petitioners cannot be allowed to challenge the validity of judgments & decrees passed by the courts below on the ground that the order allowing the application for additional evidence of predecessor-in-interest of the respondents was not in accordance with law on the subject.
10. Considering from another angle, the documents brought on record by predecessor-in-interest of the respondents through statement of her counsel were part of public record. Accord ing to the law laid down by the Apex Court of the Country in the case reported as Syed Sharif ul Hassan through L.Rs v. Hafiz Muhammad Amin and others (2012 SCMR 1258 ) copies of public record including Jamabandis , mutations and Aks Kishtwaar can be allowed to be produced in evidence even at revisional stage. Insofar as the case in hand is concerned, admittedly , the predecessor-in-interest of the respondents filed application to bring on record said documents before the court of first instance and after permission in that regard the same were brought on record. Moreover, the documents brought on record by predecessor-in-interest of the respondents after permission of the court were relevant for the just decision of the case. When a Court comes to the conclusion that production of a document or a witness is necessary for just decision of the case it can order for production of such document or witness irrespective of the fact as to whether there is application in that regard or not.
11. During the course of arguments, learned counsel for the petitioners repeatedly argued that as the petitioners were not provided an opportunity to rebut the evidence produced by predecessor-in-interest of the respondents after permission for additional evidence, it is fit case for remand. In this regard, I do not agree with learned counsel for the petitioners firstly for the reason that remand of cases in routine has been deprecated by the Hon'ble Supreme Court of Pakistan as held in the cases reported as Shahida Zareen v. Iqrar Ahmad Siddique (2010 SCMR 1119) and Habib Ullah v. Azmat Ullah (PLD 2007 SC 271) and secondly only copies of public record were brought on record by the predecessor-in-interest of the respondents in addition to producing one Waseem Akhtar who was cross- examined by the petitioners at reasonable length, thus, the petitioners could not claim that they were not allowed an opportunity to unveil the truth by producing further evidence. Further, as the petitioners failed to rebut the fact regarding minority of predecessor-in-interest of the respondents at the time of making gift by her in the name of predecessor-in interest of the petitioners, the very basis of their case fell to ground.
12. A perusal of the order sheet of this court reflects that this revision petition was admitted for regular hearing on the ground that though onus to prove Issue No.7 was placed upon the predecessor-in-interest of the respondents, however , the same was subsequently shifted upon the shoulders of the petitioners. There is no cavil with the preposition that predecessor-in interest of the respondents was saddled with the responsibility to prove Issue No.7, however , when she took clear cut stance that neither she made any gift in favour of predecessor-in interest of the petitioners nor appeared before any revenue officer concerned for completion of such transaction the onus was rightly shifted upon the shoulders of the petitioners to establish execution of valid gift in favour of their predecessor - in-interest. The apex Court of the country , in number of cases has held that when execution of a transaction has been denied by the executant it is incumbent upon its beneficiaries to establish the same. So, no exception can be taken against findings of the courts below on the ground under discussion.
13. It is well established by now that while dealing with the question relating to validity of a gift deed, three ingredients viz. the offer by the donor to the donee, its acceptance by the donee and transfer of possession are considered vital. In so far as the case in hand is concerned, the very basis of the gift proves to be spurious inasmuch as according to the documents brought on record by predecessor-in-interest of the respondents she was just twelve years of age when the mutation was purportedly attested in favour of the predecessor-in-interest of the petitioners. It is trite law that any contract purportedly entered by or on behalf of a minor is voidable and the same deserves to be reversed back upon the move of person concerned. If for the purpose of academic discussion it is presumed that mutation in dispute was attested with content of the predecessor-in-interest of the respondents even then it was not a legal document just for the reason that the donor was not major at the relevant time.
14. Another important facet of the instant case is that there is nothing on record that at the time of gift predecessor- in-interest of the respondents being female had the facility of independent advice from a male member , especially when she was only twelve years of age. The Apex Court of the Country in the cases reported as Syed Sharif ul Hassan through L.Rs v. Hafiz Muhamm ad Amin and others (2012 SCMR 1258 ), Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354 ) and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) has laid down certain criteria to adjudge the veracity of transaction entered on behalf of a female and if the present case is adjudged on the basis of parameters laid down in the afore-ref erred judgments, the findings of the Courts below seems to be unexceptionable especially when the petitioners failed to prove execution of valid gift in favour of their predecessor-in-interest by predecessor-in-interest of the respondents.
15. Even otherwise, concurrent findings of facts cannot be upset by this court in its revisional jurisdiction in a casual manner rather it has to be proved that the same are perverse or arbitrary or the same are based on misreading or non-reading of evidence. In this regard, reference can safely be made to the case reported as Muhammad Idrees and others v . Muhammad Pervaiz and others (2010 SCMR 5 ).
16. Learned counsel for the petitioners argued with vehemence that at the time of evidence in rebuttal predecessor in-interest of the respondents was allowed to lead evidence in affirmative. The said plea of the learned counsel stands negated from the content s of order of the learned Civil Judge whereby predecessor-in-interest of the respondents was allowed to lead additional evidence. According to the concluding paragraph of the said order the learned Civil Judge has clarified that she was allowed to produce requisite documents and Waseem Akhtar in rebuttal evidence. As the findings of the learned Civil Judge qua permission to the predecessor-in-interest of the respondents remained unchallenged the petitioners cannot presume that the additi onal evidence was affirmative in nature.
17. Now coming to the case-law, cited by learned counsel for the petitioners, I am of the view that in the cases of Farman Ali and Tariq Mehmood (Supra) the controversy revolved around power of the revisional Court to allow the petitioner to place on record documents which were not attached at the time of filing of the revision petition. As the application of the petitioners for additional documents has been allowed, this said cases are of no use for the petitioners. The case of M/s Bata Shoe Company and 2 others (Supra) having arising out a rent matter is not applicable in the instant case as provisions of CPC are not applicable in such matters. Further , in the said case there was nothing on record to show that the rent was paid by the tenant whereas when the petitioners themselves brought on record copy of mutation in dispute, the permission to the predecessor in-interest of the respondents by the Civil Court cannot be dubbed as illegal. In the cases of Allah Diwaya and others and Mst. Sharman and 11 others (Supra) this Court dismissed the suits on the ground that as neither the plaintif f himself appeared in the affirmative evidence nor produced anybody else but in the case in hand the position is entirely different as predecessor in-interest of the respondents herself entered the witness box and faced the agony of lengthy cross- examination. Coming to the case of Haji Nazir Muhammad Khan and others (Supra) the Hon'ble Peshawar High Court has highlighted salient features of Part Sarkar and Part Patwar of mutation. The said case is of no help for the petitioners as they themselves produced copy of Part Patwar during the course of evidence especially when there was report that the Part Sarkar was not available. So far as the case of Haji Abdul Ghafoor Akhtar (Supra) is concerned, the permission for additional evidence was allowed at appellate stage whereas in the instant case the predecessor-in-interest of the respondent s produced additional evidence before the court of first instance and the summoned witness was exhaustively cross-examined by the petitioners. Taking up the case of Naseer Ahmed (Supra) I am of the view that this Court inter-alia held that withholding of a witness of affirmative evidence for rebuttal is not permissible whereas in the instant case the person whose statement was recorded in the shape of additional evidence was not cited as a PW rather he was produced with permission of the Court. In the case of Rana Muhammad Shabbir (deceased) through his L.Rs. (Supra) this Court inter alia laid law to the effect that photo state copy of a document not attested by anyone cannot be relied upon whereas in the case in hand when the petitioners themselves produced copy of the mutation in dispute no exception can be taken against the respondents especially whenthe court allowed their predecessor-in-interest to lead evidence in the shape of Part Patwar. Insofar as the case of Murid Hussain (Supra) is concerned, this Court has held that when the affirmative evidence in support of issue of superior right of pre-emption was concluded, no evidence in affirmative could be led. In the present case, the predecessor-in-interest of the respondents produced documents in rebuttal to the claim of the petitioners that the documents relating to her date of birth were not genuine.
18. As a sequel to the discussion in the fore-going paragraphs, I have no doubt to hold that the petitioners miserably failed to prove execution of valid gift in favour of their predecessor-in-interest thus the findings of the courts below are immune from interference by this Court in exercise of its revisional jurisdiction.
Consequently, instant revision petition is dismissed with no order as to costs.