MUJAHID MUSTAQEEM AHMED, J.---This revision petition filed in terms of -section 115, C.P.C. is directed against the judgment and decree dated 13.5.2009 whereby the learned Addl. Distt. Judge, Gujranwala accepted appeal of the respondent, set aside the judgment and decree dated 18.9.2007 passed by learned trial Court and decreed the suit.
2. Background of the case, in brief, necessary for fair adjudication of the instant petition is that the respondent was owner of suit property measuring two kanal 17 marla situated in Mauza Talvandi Khajoor Wali, Tehsil and Dist. Gujranwala. Purportedly vide mutation of gift No, 1381 attested on 15.5.1999 (Ex.P.1) he gifted away this property in favour of present petitioner (his Chacha zad). The respondent on 3.4.2004 instituted a suit for declaration to the effect that he was owner in possession of the suit property and oral mutation of the gift referred supra was against facts, law, based on fraud, collusion of present petitioner with revenue staff and as such liable to be set aside.
The present petitioner (defendant) vehemently contested the suit and claimed that the mutation of gift was got attested by the respondent in presence of two witnesses and due to increase in value of the suit property, the suit has been instituted on the basis of mala fide. To resolve the controversy in question between the parties, learned Civil Judge, Gujranwala framed following issues:-- 1.Whether the plaintiff is owner in possession of the suit property? OPP.
2.If the above said issue is proved in affirmative, whether the plaintiff is entitled to the decree as prayed for? OPP.
3.Whether the mutation No, 1381 dated 23.6.1999 through gift is false, fictitious against the law, ineffective and inoperative upon the rights of the plaintiff? OPP.
4.Whether the suit is false and vexatious? OPD.
5.Whether the suit is time barred? OPD.
6.Whether the valuation for the purpose of court fee and jurisdiction has not been fixed properly, if so its effect? OPD.
7 Whether the plaintiff has no cause of action? OPD.
8. Relief After recording evidence of the parties the learned Civil Judge, Gujranwala vide judgment and decree dated 18.9.2007 dismissed the suit of the respondent. Feeling aggrieved of the said judgment and decree of the learned civil court, the respondent filed an appeal before the learned Addl. Distt. Judge, Gujranwala who vide judgment and decree dated 13.5.2009 allowed the appeal, set aside the impugned judgment and decree passed by the learned Civil Judge and decreed the suit of the respondent in his favour and against the present petitioner. Hence this revision petition mainly on the grounds that the impugned judgment and decree passed by learned lower appellate Court is based on mis-reading and non-reading of evidence and the learned Addl. Distt.
Judge has committed material irregularity, resulting in grave injustice to the petitioner.
3. Learned counsel for the petitioner has argued that from the evidence available on record the petitioner has succeeded to establish attestation of valid mutation of gift in his favour, possession also stood delivered to the petitioner and as such all the valid ingredients of gift under the law have been proved. In support of his contention learned counsel places reliance on the cases reported as Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another (2000 SCM R 1021) and Muhammad Sadiq and others v. Bashir Ahmad and others (2004 SCM R 1734).
4. On the other hand learned counsel for the respondent has supported the impugned judgment delivered by the learned Addl. Dist. Gujranwala maintaining that the same is based on proper appreciation of evidence on record. It has been maintained that the respondent was father of nine kids and was owner of the suit property only and thus there was no valid reason or justification for gifting away his entire landed property to the petitioner who is his "Chacha Zad". In support of his contention learned counsel has relied on Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCM R 1938). He further claimed that neither revenue officer nor Patwari has come in witness box to support the attestation of mutation in favour of the petitioner. In the same context he has maintained that the petitioner himself has not put appearance in 'witness box and his Special Attorney/DW. 1 Nawab was neither present at the time of attestation of mutation of gift nor was validly authorized to defend the suit or to appear in defence. To substantiate this plea, reliance has been placed on the case of Syed Muhammad Baqir Shah v. Farida Sajid (2013 CLC 52 Lahore).
5. Learned counsel for the parties have been heard and record perused in the light of submissions made by them.
6. The respondent appearing as PW.1 has specifically stated that he is owner of the suit property and has not gifted away the same to the petitioner. He further elaborated his case by deposing that he never appeared before Patwari or Revenue Officer for entering or attestation of mutation of gift. He claimed that the mutation of gift is based on fraud. He is father of nine kids. He claimed that the petitioner was in cultivating possession of the suit property as tenant for the last 20 years.
During cross-examination he deposed that he came to know about attestation of impugned mutation of gift on 21.3.2004 (the very date on which the suit was instituted). Muhammad Aslam, PW.2 (uncle of the respondent) has also corroborated version of the respondent regarding non- attestation of mutation of gift in favour of the petitioner. In the last line of his cross-examination he conceded that as per entries in the revenue record the petitioner has become the owner of the suit property. Abdul Rasheed, PW.3 has also toed to the testimony of PWs. 1 and 2.
7. In its rebuttal father/special attorney of present petitioner appeared as DW. 1 and deposed that respondent has gifted away suit property to the petitioner and for that purpose he appeared before revenue officer and made statement in favour of the petitioner. He further claimed that since the date of gift the petitioner is cultivating the suit property. This witness has not stated in his examination-in-chief that he was also present at the time of attestation of mutation of gift in favour of the petitioner, meaning thereby that his version is based on hearsay evidence. It is worth mentioning that during cross-examination, as rightly noted down by the learned Addl. Distt. Judge in vernacular, in ,,impugned judgment DW. 1 conceded that the suit property was purchased for Rs,15,000/-, bargain was settled on the same day but it was not in his memory that in whose presence this bargain was settled. Thus by this admission, DW. 1, special attorney of the petitioner has smashed the story of the valid gift of suit property in favour of the petitioner by the respondent.
Bashir Ahmad son of Allah Ditta DW.2 claimed that in his presence respondent has gifted away suit property to the petitioner and as such no fraud has been committed with the respondent. He has not stated the date or the place where the gift was made. During cross-examination he conceded that he is not attesting witness of the mutation of gift. Muhammad Bashir Cheema son of Rasool Bukhsh, DW. 3 attesting witness of mutation of gift deposed that the respondent has gifted away the suit property in favour of the petitioner and no fraud has been practiced against him by the petitioner. He further claimed that the petitioner was enjoying possession of the suit property.
During cross-examination he deposed that the entry of mutation of gift and its attestation was made on one and the same date. Whereas as rightly pointed out by learned counsel for the respondent the impugned mutation was entered on 13.5.1999 and attested on 15.5.1999. It means that DW.3 has no first-hand knowledge about the impugned transaction.
8. A careful scrutiny of above noticed oral as well as documentary evidence fully establishes that the respondent is owner of the suit property. There existed no valid ground whatsoever for gifting away the entire suit property owned by the respondent in favour of his "Chacha Zad"/petitioner and thus depriving of his large family consisting of nine children and his better half from valuable landed property. The petitioner has not pleaded that due to love and affection, respondent has gifted away suit property in his favour. He has also failed to mention any date and place where the offer and acceptance of gift was made in between the parties and in pursuance thereto possession was delivered to the petitioner. The case law referred by learned counsel for the petitioner, noted supra, is not supporting petitioner's case as facts of the same are quite distinguishable from the facts of the case in hand. In case titled Allah Ditta v. Manak alias Muhammad Siddque (2017 SCM R 402) it has been held that person depriving his own children and doling out his property to his nephews seemed very unnatural conduct. In case law Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs (2002 SCM R 1938) relied upon by learned counsel for the respondent necessary ingredients of valid gift; offer by done acceptant by donee and delivery of possession have been enumerated and it has been further held that courts are not divested of power to scrutinize the reasons and justification for a gift so that no injustice was done to rightful owner. As rightly observed by the learned Addl. Distt. Judge, the Special Attorney of the petitioner/DW.1 during cross-examination has negated case of the petitioner of gifting away suit property in his favour by deposing in unequivocal terms that it was a sale transaction of Rs,15,000/- thus the DW.1 has even negated the version of other DWs that it is a valid gift transaction. The other attesting witness of the mutation of gift has not come forward to support version of the petitioner, as required under Article 17 of the Qanun-e-Shahadat Order, 1984.
As such the petitioner has failed to establish the factum of valid gift by producing two attesting witnesses. In case Noor Muhammad and others v. Mst. Azmate-Bibi (2012 SCM R 1373) it has been laid down that mutation by itself did not create a title and the person deriving any one of the title thereunder had to prove that the transferor did part with the ownership of the property voluntarily.
Similar view has been taken in case Muhammad lqbal v. Mukhtar Ahmad through L. Rs, (2008 SCM R 855), Khaliq Dad Khan v. Mst. Zeenat Khatoon and others (2010 SCM R 1370) and Syed Muhammad Baqir Shah v. Farida Sajid (2013 CLC 52 Lahore).
9. Learned counsel for the petitioner has maintained that the suit of the respondent is hopelessly time barred. But this legal aspect has not been taken care of by the learned Addl. Distt. Judge. It is worth mentioning that Issue No, 5 was framed regarding this plea but the same stood decided against the present petitioner by the learned Civil Court and the petitioner has not filed any cross- appeal before the learned Addl. Distt. Judge. Even otherwise the respondent as PW.1 has deposed that he came to know about the impugned mutation of gift on 21.3.2004 and on that very date he filed suit for declaration before learned Civil Court. As noticed supra entry and attestation of valid mutation of gift could not be established by the petitioner as such the impugned mutation of gift is against facts, based on fraud and collusion of petitioner with revenue staff. It is settled law that no limitation runs against fraud. Reliance is placed on case titled Mst. Raj Bibi and others v. Province of Punjab through Distt. Collector, Okara and 5 others (2001 SCM R 1591). This objection of learned counsel for the petitioner being devoid of force is discarded.
10. As a sequel to above discussion, I have come to irresistible conclusion that findings of learned Addl. Distt. Judge, Gujranwala are based on proper appreciation of evidence and call for no interference by this Court. In a case reported as Ilamud Din v. Syed Sarfraz (1999 CLC 312 Karachi) it has been held that when there is conflict between the decisions of trial court and the appellate court, decision of first appellate court was to be preferred in revisional jurisdiction. Consequently, this civil revision being devoid of merits is dismissed, leaving the parties to bear their own costs.