' This revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated 07.12.2012 passed by learned trial Court and judgment and decree dated 22.01.2016 delivered by learned lower appellate Court, through which, declaratory suit as well as appeal filed by present petitioner was dismissed respectively.
2. The brief facts of the case are that petitioner on 24.01.2008 instituted a declaratory suit with the assertion that subject land 06 Kanals 10 Marlas fully detailed in Para No, 1 of the plaint was owned by his brother, Manzoor Ahmed, who made declaration of gift in his favour, which was accepted by him and in lieu thereof, possession was also handed over to him and while acknowledging the transaction, the disputed property was also alienated in his favour by the donor through attestation of Mutation No, 431 dated 11.05.2006; that after the death of donor, one of his daughters Nusrat Begum Respondent No 5/Defendant No, 4 filed an application on 27.06.2006 before DDO(R)
Wazirabad/Respondent No, 2 for cancellation of Mutation No, 431, which was allowed by him vide order dated 18.10.2006 and the appeal of the petitioner was also dismissed by EDO(Rev)/Respondent No, 3 through order dated 22.01.2008, consequent thereupon, disputed mutation was cancelled and that the impugned orders being illegal and ineffective upon his rights were liable to be set aside. The suit was contested by Respondents No, 5 to 7 defendants with the stance that donor was an old age person, who was defrauded in the last days of his life by petitioner to deprive his daughters and son to inherit his legacy and when this fraud came into light, the same was challenged before the revenue hierarchy who cancelled it. The learned trial Court while facing with the contest captured the disputed areas of fact and law through settlement of issues and invited the parties to lead their evidence, who to prove their respective stance examined oral as well as documentary stock of evidence and after scanning the same, suit of petitioner was dismissed by the Court of first stance which was further congealed by learned lower appellate Court on their part through judgments and decrees referred to in opening para.
3. Mr. Qadeer Ahmed Rana, Advocate, learned counsel for petitioner emphasized with great vehemence that neither . The application for cancellation of mutation tabled by Respondent No, 5/defendant was maintainable before DDO(Rev)/Respondent No, 2 nor could he annual the same; that EDO(Rev)/Respondent No, 3 while skipping that aspect also erred in law when he dismissed the appeal of petitioner and that petitioner through production of qualitative and quantitative evidence not only succeeded to prove the valid attestation of mutation, but also proved the declaration of gift, its acceptance and delivery of possession in hue thereof. He also submitted that learned Courts below while misinterpreting the evidence available on record passed the impugned judgments and decree, which are not sustainable.
4. Conversely, learned counsel for Respondent No, 5 and learned Law Officer on behalf of Respondents No, 1 to 4 have submitted that donor was an old age ailing person, who died within couple of days of attestation of disputed mutation and petitioner while practicing fraud got attested it to deprive his daughters and son from inheriting the subject property; that petitioner being beneficiary of mutation and transaction was obliged to prove the same independently and Courts below after appreciation of material available on lis file were immaculate to dismiss the suit as well as appeal. He further argued that concurrent findings of fact rendered by two Courts below could not be checked by this Court while exercising jurisdiction under Section 115 of the Code of Civil Procedure, 1908.
5. Heard, record thrashed.
6. The headmost argument of Mr. Rana that revenue authority was not competent to entertain an application for the cancellation of oral gift mutation on the score of fraud or on other intricated allegations might have substance, but after the pronouncement of order dated 18.10.2006 by D.D.O.
(Rev), the petitioner himself availed the remedy of appeal provided in that hierarchy and after his failure, he without availing efficacious remedy provided in that forum, approached the Civil Court through institution of a civil suit. Instead of going into the controversy whether without availing the efficacious remedy on revenue side, a declaratory suit was maintainable or not and while ignoring whether revenue authorities were equipped with the jurisdiction to annual the mutation on the grounds mention in the application preferred by Respondent No, 5 and also while leaving those aside I am proceeding to resolve the real controversy involved herein whether Manzoor Ahmed made any declaration of gift in favour of petitioner and thereafter he personally got attested disputed mutation to acknowledge the oral transaction for the resolution of dispute.
7. Before embarking upon merits of the case and to proceed with the determination of respective stances of the parties, I feel it appropriate to comment on the principle dealing with oral transfer of immovable property effected through mutation. It is well established by now that mutation is always sanctioned through summary proceedings and is intended to keep the record update for the collection of land revenue. Such entries are made in the Register concerned under Section 42 of the Land Revenue Act, 1967 which attains no presumption of correctness prior to incorporation in the Record of Rights. No doubt, that the entries in the mutation are admissible in evidence in a case, but these require to be proved by the person relying upon it independently through affirmative evidence because an oral transaction reflected therein neither confers the title in favour of its beneficiary nor can established the same.
8. Resuming now to merits, it is the basic case of the petitioner as reflected from the plaint that his brother made a declaration of gift in his favour, which was accepted by him without disclosing the time, date, venue and names of witnesses when, where and before whom the said transaction was effected. No doubt, through his testimony being PW-1, petitioner tried to improve his case that on 11.05.2006 when disputed mutation was attested, the donor made offer of gift before him and Zafarullah (PW-3). Manzoor Ahmed, PW-2 and Zafarullah, PW-3 also worded in the same lines. As observed supra, no such case was developed in the pleadings of the plaint. It is settled law that a party has to first plead facts and pleas in the pleadings and then to prove the same through evidence. A party is not allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of "secundum allegata et probate" that a fact has to be alleged by a party before it is allowed to be proved, is fully applicable in this case, which has full command of provisions of Order VI Rule 2 and Order VIII Rule 2 of the Civil Procedure Code, 1908. As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored. Reliance can be placed upon the dicta laid down in C the case law reported as Muhammad Wali Khan & another vs. Gul Sarwar Khan & another (PLD 2010 SC 965) and Haider Ali Bhimji v. VIth Additional District Judge, Karachi (Sourth) & another (2012 SCM R 254), wherein it was held that in absence of specific pleadings, the Court could not allow a party to grope around and draw remote D inferences in his favour from his vague expressions. The probe of statement of PWs further affirms that on the day of attestation of mutation, the vendor was a man of old age suffering with asthma and died just within 17 days of its attestation and the disputed mutation came into the knowledge of his legal heirs after his death, when they approached the revenue officials for attestation of inheritance mutation. The study of evidence examined by petitioner affirms that he failed to prove the oral gift transaction embodied in the mutation. No doubt, attesting witnesses, (PW-2) and (PW-3) and revenue officer, 6 (PW-4) appeared in the witness-box and tried to prove the attestation of questioned mutation, but this exercise was not sufficient, rather the beneficiary was independently required to prove the transaction which might have been settled prior to attestation of mutation.
9. Another important aspect of the case was that admittedly the donor has two daughters and one son but the gift was made in favour of brother while depriving the legal heirs. No doubt, a Muslim is free to transfer his property by making a declaration of gift in favour of any person, but when legal heirs of the donor were available then as per dicta laid down in the judgments reported as Barkat Ali through Legal Heirs and others (Muhammad Ismail through Legal Heirs and others (2002 SCM R 1938) and Meraj Din us. Mst. Sardar Bibi and 5 others (2010 M LD 843), there should be reasons to be highlighted as to why the donor was going to make a gift in favour of an alien, which is missing in this case.
10. As a result of probe of evidence available on file, this Court is of the considered view that petitioner failed to prove his case and both the Courts below were perfect in non-suiting him. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered with in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The concurrent findings of facts were recorded by both the Courts below, which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading or non-reading of evidence has been made out and neither any legal infirmity has been pointed out by the learned counsel for petitioner even during the course of arguments nor illegal exercise of jurisdiction or failure of exercise of jurisdiction by both the Courts below has been attributed to warrant interference by this Court under Section 115 of the Civil Procedure Code, 1908.
Reliance is placed on the case law reported as Abdul Rahim & another vs. Mst. Janatay Bibi and others (2000 SCM R 346), Anwar Zaman & 5 others vs. Bahadur Sher & others (2000 SCM R 431), Aziz ullah Khan & others v. Gul Muhammad Khan (2000 SCM R 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs an another (2000 SCM R 314), Haji Noor Muhammad v. Abdul Ghani & 2 others (2000 SCM R 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 SC 293).
11. Resultantly, the instant civil revision being devoid of any merit is dismissed with special cost of Rs, 100,000/- to be paid to Respondents No, 5 to 7.
12. Before parting with this judgment, when it is proved on record that disputed mutation being result of fraud was got attested by petitioner by playing fraud to deprive the ladies and their brother and the frivolous litigation based on mala fide as initiated by the petitioner, this Court is inclined to direct the Revenue Officer concerned to take legal action against the petitioner or his family members, if they are still enjoying the possession of the disputed property and after their ejectment, the possession should be delivered to Respondents No, 5 to 7 without any failure. If any illegal hindrance is created by the petitioner or his family members, then through all coercive measures, even by the aid of police to be provided by the DPO concerned, if needed, the possession should be delivered to Respondents No, 5 to 7. Compliance report should also be submitted to this Court through Deputy Registrar (Judi).