ATIR MAHMOOD, J. --- Brief facts of the case are that the petitioners filed a suit for declaration with the averments that father of the petitioners namely Muhammad Ashraf Ali Shah owned land measuring 41 kanals, 19 marlas out of Khata No, 515/476 (total land 78 kanals, 10 marlas) and land measuring 4-kanals, 6 marlas out of Khata No, 516/477 (total land 16 kanals) i,e, 46 kanals, 5 marlas in the revenue estate of Mauza Farid Mahmood Kathia, Tehsil Shorkot, District Jhang who had two wives; that the petitioners are sons and daughters of his first wife whereas respondents No, 1 to 5 (hereinafter called "the respondents") are from his second wife; that it is the assertion of the respondents that predecessor of the parties transferred the said property in their favour vide mutation No, 1870 on 17.04.2000; that the predecessor of the parties after remaining confined to bed for a long time ultimately expired in March, 2001 on account of failure of his kidney, that the deceased had attack of paralysis and he was unable to speak or move due to which he was confined to bed till his death; that the respondents taking undue benefit of illness of father of the parties got transferred the property through said mutation by way of gift in connivance with the revenue staff; that the deceased never went to Patwari or Revenue Officer nor he appeared before any such officer to make statement with regard to said gift; that the transaction of gift is forget and fictitious, therefore, the same be declared so
2. The respondents contested the suit by way of filing written statement. Out of divergent pleadings of the parties, following issues were framed:--- ISSUES
(1) Whether the plaintiffs and defendant No, 6 are the legal heirs of the deceased Muhammad Ashraf Ali Shah and as such they are owners in possession of the disputed property? OPP.
(2) Whether the mutation No, 1870 decided on 17.04.2000 in favour of defendants No, 1 to 5 is against law, based on fraud, collusion and inoperative upon the rights of the plaintiffs? OPP.
(3) Whether the plaintiffs are entitled to get the declaratory decree for the suit land as prayed for?
OPP.
(4) Whether the plaint is not maintainable in its present form and is liable to be dismissed? OPD.
(5) Whether the plaintiffs are not in possession over the suit land and the suit is not maintainable?
OPD.
(6) Whether the suit by the plaintiffs is liable to be dismissed in lieu of concealment of facts as averred through serial No, 6 of the written statement? OPD.
(7) Whether the suit by the plaintiffs is liable to be dismissed as the same is hit by the rule of estoppel? OPP.
After framing of issues, evidence of the parties was recorded. Then, learned Trial Court dismissed the suit of the petitioners-plaintiffs vide judgment and decree dated 26.04.2012. The appeal preferred thereagainst was also dismissed vide judgment and decree dated 01.10.2013 passed by learned lower Appellate Court. Hence this civil revision has been filed assailing both the judgments and decrees of learned Courts below.
3. Learned counsel for the petitioners inter alia contends that attestation of gift mutation was a subsequent step prior to which the gift had been made by the donor but the written statement as well as the evidence of the respondents is totally silent as to how, when and in whose presence the property was gifted to them; that no proof of family settlement as asserted by the respondents has been brought on record; that when the ingredients of gift were missing, the gift mutation in favour of the respondents could not sustain; that the learned Courts below have utterly overlooked this aspect and have passed the judgments and decrees against the law, therefore, this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the petitioners be decreed as prayed for.
4. On the other hand, learned counsel for the respondents submits that there are concurrent findings of law and fact against the petitioners which are immune from interference by this Court in its revisional jurisdiction; that the predecessor of the parties had gifted the property to the plaintiffs and the defendants; that when the plaintiffs had themselves received the property through gift, they were estopped to challenge the gift made in favour of the defendants; that there was family settlement between the parties in light of which some property was gifted out to the plaintiffs and some to the defendants. He asserts that this civil revision is without any merit and the same merits dismissal.
5. Arguments heard. Record perused.
6. The moot point in this case is as to whether the property was gifted out to the respondents- defendants validly and lawfully or not.
7. The petitioners have specifically challenged gift mutation No, 1870 dated 17.04.2000 allegedly got attested by predecessor of the parties Muhammad Ashraf Ali Shah. In response thereto, the defendants have asserted that the gift mutation was got attested by their predecessor while appearing himself before the revenue officer and that the health of the predecessor at that time was very good. They also take plea that the predecessor of the parties has also gifted out the property to the plaintiffs as well and gift mutation No, 1001 was attested on 26.02.2001 in favour of plaintiff No, 2, 10/13 days prior to death of their predecessor which is sufficient to establish health of their predecessor.
8. So far as gifting of the property to the plaintiffs through gift mutations is concerned, the gifts or gift mutations in favour of the plaintiffs have not been challenged by the defendants, therefore, I am not going to look into their validity. In this suit, validity of gift mutation No, 1870 dated 17.04.2000 allegedly made by predecessor of the parties in favour of the defendants is under challenge and I will confine myself to the same only.
9. Petitioner No, 1-plaintiff appeared before the Court as PW.1 and reiterated the contents of the plaint while alleging that the suit property was never gifted to the defendants by predecessor of the parties and the disputed mutation is result of fraud and forgery.
10. Being beneficiaries of the disputed mutation, the onus to prove the valid gift was on the defendants. The defendants have taken plea that the suit property was gifted by their predecessor to them through oral gift and gift mutation was got attested by their predecessor by appearing himself before the revenue officer. Attestation of mutation of gift is a subsequent step. Prior to attestation of gift mutation, there is transaction of gift which is required to be established. There are three ingredients of gift, i,e, offer, acceptance and delivery of possession which are required to be proved by the beneficiary if the gift made in his favour is challenged. I have gone through the whole written statement as well as the evidence of the defendants. The written statement and evidence of the defendants are silent as to how, when and in presence of whom the suit property was gifted by the predecessor of the parties in favour of the defendants. There is even no mention as to when and in whose presence, the offer was made, when it was accepted by the defendants and when the possession of the property was handed over to the defendants by their predecessor.
In the circumstances, all the three ingredients of gift which allegedly led to attestation of disputed gift mutation in favour of the defendants are missing and the defendants have badly failed to prove the factum of gift in their favour.
11. If it is presumed that the oral gift was made at some date other than that of the disputed mutation, the mutation of the gift was required to be proved through credible and unimpeachable evidence, as required by law. In this regard, the defendants produced DW.2 Allah Bakhsh Patwari who deposed that Sharaf Shah came to him for attestation of mutation No, 1870. In cross- examination, he stated that the mutation was entered at about 1.00 p.m. and attestation of the same was made at 3.00 p.m. He further deposed that the mutation was entered in the Consolidation Office whereas it was attested in Fareed Mahmood Kathia. DW.3, the alleged witness of the mutation in his cross-examination, stated that the mutation was entered at 3.30 p.m. in Colony Qasimabad School and it was not entered in the Consolidation 'Office. DW.4, the defendant himself, stated the time of attestation of mutation as 1.30 p.m. According to DW.3, Manzoor Hussain, the mutation was entered in Colony Qasimabad in a school whereas DW.4, the defendant, stated that the mutation was entered in the building of old Tehsil. This is a material contradiction in the statements of the witnesses.
12. According to Exh.P1, the mutation was entered on 24.03.2000 and it was attested on 17.04.2000 but none of the defendant witnesses deposed about the date of entry of the mutation. However, DW.4, in his cross-examination, stated that the attestation was made after 20 days of its entry, which when calculated comes to 24 days. Further, the other witness of the mutation namely Ghulam Baqar was not produced in the witness box which also casts serious doubts about the lawful attestation of the mutation. The entry of the mutation and its subsequent attestation was the outcome of an alleged oral gift. None of the witnesses of the gift produced by the defendants uttered even a single word that at the time of mutation, the property was orally gifted to the defendants. As admitted by DW.4, the defendant, the other beneficiary of the oral gift Shah Jahan was not present. None of the remaining defendants. the daughters of the deceased of Muhammad Ashraf Shah were present on the spot. This leads me to a definite conclusion that the ingredients were not completed on the date of entry or attestation of the mutation and if the same was not done on that date. then transaction of oral gift was at some earlier date but neither there is any assertion in the written statement nor evidence was produced in this regard.
13. The defendants have taken plea that there was family settlement between the parties. I am afraid that neither this factum was asserted in the written statement nor any evidence to prove the factum of family settlement was led. Mere assertion or supposition is not sufficient to reach a conclusion. If there was any family settlement between the parties, the defendants should have pleaded in the written statement and proved the same through evidence. Non-mentioning of factum of family settlement and non-leading of any evidence to prove thereof leads me to an inference that there was no family settlement between the parties as averred by the defendants.
14. There is contention of learned counsel for the respondents that the concurrent judgments and decrees cannot be interfered with by this Court in its revisional jurisdiction. There- is no cavil to the proposition of law that concurrent findings should not be interfered with in revisional jurisdiction by this Court but where there is some material illegality, misreading or non-reading of evidence or jurisdictional defect, this Court has ample powers to interfere therewith and rectify the illegality' committed by learned Courts below. The contention of learned counsel for the respondents is accordingly repelled.
15. For the afore-mentioned reasons, this civil revision is allowed, the impugned judgments and decrees are set aside and the suit of the petitioners-plaintiffs is decreed as prayed for.