ASIM HAFEEZ, J.---This Civil Revision arises out of Judgment and Decree dated 30.04.201 1 by the learned Additional District Judge Mankera, whereby the judgment and decree dated 28.07.2009 by the learned Civil Judge Mankera, decreeing the suit for declaration of the respondents against the petitioners, was upheld.
2. Briefly , the facts necessary for the adjudication of instant Civil Revision are that ownership of land measuring 253 kanals and 11 marlas Khata No,246, situated in village Mauza Yara, Tehsil Mankera, District Bhakkar , devolved upon legal heirs of deceased Allah Diwaya, comprising of Mst. Daulat Mai (widow), Mst. Aslam Mai, Mst.
Manzooran Mai and Mst. Muridan Mai (daughters). Two daughters, the respondents, out of three, filed a suit for declaration in October 2005 before the learned Civil Judge, Mankera, after the death of their mother . It was alleged that property , subject-matter of instant Civil Revision, was not transferred to the petitioner No,1 through alleged oral gift, recoded as mutation No,91 1 dated 13.12.1966, which was alleged as fraudulent and forged. The petitioner No,1 gifted, by way of oral gift, property to his sons and daughter , petitioners Nos,2 to 4 and said transaction was recorded as gift mutation No,2397 dated 17.09.2005, which transaction was also under challenge in the suit.
The petitioners controverted the alleged claim and filed contesting written state ment. Issues were framed and parties led their evidence, verbal and documentary . The learned trial court decreed the suit of declaration of the respondents vide judgment and decree dated 28.07.2009, rendering the gift mutations void and ineffective.
Aggrieved, the petitioners filed appeal before the learned Additional District Judge, Mankera, which too was dismissed. Hence, this Civil Revision petition.
4. Learned counsel representing the petitioners averred that courts below have had mis-read the evidence and overlooked material portions thereof. The question of limitation escaped attention of the Courts below , as the gift mutation dated 13.12.1966 was challenged in October 2005. Per learned counsel, evidence of (DW-5), sister of the respondents and one of the legal heirs of Allah Diwaya was not read properly and appreciated. Further contended that the mother of the respondents who died in the year 1995 had not challenged the factum of gift during her lifetime and legal heirs cannot challenge factum of gift. The rights of subsequent transferees (petitioners Nos,2 to 4) could not be disturbed, who had acquired rights before the suit was instituted. Learned counsel has referred to following judgments, reported as "Muhammad Rustam and another v. Mst. Makhan Jan and others" (2013 SCMR 299), "Ghulam Abbas and others v. Muhammad Shafi through L Rs and others" (2016 SCMR 1403 ), "K. C. Mamoo v. Mrs. Badrunnisa" (1985 CLC 332), "Muhammad Asghar and 3 others v. Rehmat Ullah and 2 others" (2012 MLD 1791 ), "Noor Din and another v. Additional District Judge Lahore (2014 SCMR 513), "Mst. Grana through legal Heirs and others v. Sahib Kamala Bibi" (PLD 2014 SC 167), "Ghulam Nabi and others v. Mst. Zianab Bibi" (2005 MLD 153), 'Haji Gulshan v. Abdul Qayoom and others (PLD 1991 Pesh. 85), "Abdul Haq and another v. Mst.
Surraya Begum (2002 SCMR 1330 ), "Mst. Phaphan through L.Rs, v. Muhammad Bakhsh and others " (2005 SCMR 1278 ), "Atta Muhammad v . Maula Bakhsh" (2007 SCMR 1446 ).
5. Learned counsel for the respondents controverted the arguments. Submitted that, petitioners failed to prove the transaction of gift. Mutation of gift alone, though otherwise not proved in this case, does not extend protection to fraudulent transaction. Offer, acceptance and delivery of possession are lacking. Learned counsel relied upon the judgments reported as "Abdul Rehman v. Mst. Majeedan Bibi" (2017 SCMR 1110), "Mst. Kamayan Bi v.
Muhammad Din" (2017 MLD 1251 ), "Muhammad lqbal Khan v. Mst. Farhat Nisa" (PLD 2017 Lahore 727), "Muhammad Saee v. Mst. Sharaf Elahi and another" (2010 SCMR 1358 ), Khaliq Dad Khan and others v. Mst.
Zeenat Khatoon and others" (2010 SCMR 1370 ), "Muhammad Wali Khan and another v. Gul Sarwar Khan and another " (PLD 2010 SC 965), "Mst. Zeenat Khatoon and 2 others v. Khaliqdad Khan and 4 others" (2006 CLC 987), "Mst. Khurshid Bibi and others v. Ramzan and others" (2006 CLC 1023 ), "Mian Allah Ditta through Legal Heirs v. Mst. Sakina Bibi through Legal Heirs and another" (2010 CLC 966) and "Abdul Hameed through L.Rs, and others v . Shamasuddin and others" (PLD 2008 SC 140 ).
6. Arguments Heard. And available record perused.
7. The real controversy , between the parties, hinges on the determination of the genuineness and legality of alleged transaction of gift, which is denied by the respondents. The factum of ownership of the respondents, being the legal heirs of the deceased Allah Diwaya, was not in dispute.
8. That respondent No,1 appeared as PW-1 and denied the transaction of gift. She disputed the alleged mutation of gift dated 13.02.1966 and alleged that subsequent gift by Petitioner No,1 to petitioners Nos,2 to 4 is fraudulent and collusive.
The most crucial aspect of the case is that alleged donors were illiterate ladies - the mother and three daughters - whom allegedly gifted the property to Petitioner No,1, being paternal cousin of the mother of respondents Nos, 1 and 2, after death of her husband - father of the respondents and DW -5.
9. Petitioner No,1, being the beneficiary of the alleged transaction of gift was required to discharge the onus of proof, shifted in view of the denial of transaction of gift and the fact that ladies were illiterate and no independent advice was sought available before transferring of property through alleged gift. Petitioner No,1, instead of proving the transaction through independent and convincing evidence, emphasized on alleged admission/acknowledgement of alleged gift by the respondents by reference to collateral proceedings qua suits for pre-emption, wherein two pre-emptors had challenged the transfer of property in favour of petitioner No,
1. Those suits were filed against petitioner No,1, mother and three daughters - alleged donors -. Petitioner No,1 alleged that donor ladies engaged counsel, submitted written statements, appeared and made statements, wherein factum of gift and delivery of alleged possession was admitted. It was denied by respondent No,1 that she appeared or submitted any written statement.
10. The learned counsel for the petitioners had emphasized on the evidence of the DW-5 (sister of the respondents) to prove transaction of gift and the fact that ladies engaged advocates and submitted written statement, acknowledging alleged gift. Upon perusal of the evidence of the DW-5, it becomes evident that she had actually demolished the case of the petitioners. She stated that the petitioner No,1 pursued pre-emption suits titled "Muhammad Ramzan v. Gul Sher" and "Malik Nek Muhammad v. Gul Sher", regarding disputed gift mutation and she stated that she didn't go to Bhakkar - where the suit for pre-emption were filed - which statement by the witness produced by petitioner No,1 had in-fact controverted the case of the petitioners. Petitioner No,1 failed to prove that the respondents / ladies engaged advoc ate, thumb-marked the wakalat-nama and written statements. Petitioner No,1 appeared as DW-1 and stated that DW-5 and others appeared before the Court, made statements and submitted written statement, none of which was proved rather denied by his own witness DW-5. In the absence of such crucial evidence the pre-emption suits appeared to be collusive.
11. It is evident from the evidence record ed that respondents were illiterate ladies mother and three daughters.
Nothing was brought on record to prove that any independent advice was available or afforded to the respondents before alleged gift was made. To fortify this point guidance is solicited from the Judgments by the august Supreme Court of Pakistan reported as, "Jannat Bibi v. Sikandar Ali" (PLD 1990 SC 642), "Rasheeda Bibi and others v, Mukhtar Ahmad and others" (2008 SCMR 1384 ), "Mian Allah Dina through LRs v. Mst. Sakina Bibi" (2013 SCMR 868), and " Abdul Rehman v . Mst. Majeedan Bibi" (2017 SCMR 1 110), There in nothing produced to otherwise substantiate any reason / basis for such gift to a distant relative. In order to fortify the point, reference is made to the judgments of the august Supreme Court of Pakistan reported as "Barkat Ali through legal heirs and others v. Muhammad Ismail" (2002 SCMR 1938 ), relevant portion at page 1942 is reproduced hereunder: "Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed."
12. The DW-5 admitted that when their mother was alive, petitioner No,1 used to give share of rent (batai) to the respondents, which admission alone denudes the transaction of gift of any credibility . DW-3 and DW-4 alleged that offer of gift was made before us, which fact was not mentioned in the written statement, their presence was even not admitted by the DW-5. Relationship between the husband of DW-5 with petitioner No,1 also discredit the statement of Manzoorian Mai (DW -5).
13. Petitioner No,1 stated during cross-examination that one Khadim Hussain identified the respondents -- their mother and DW-5 - at the time of mutation of gift, who personally knew them. Said Khadim Hussain was not produced as a witness. It was admitted by the petitioner that he was alive but ill. DW-2 appeared as Patwari, whose evidence is also not supportive. There is no independent evidence to prove the transaction of gift. Mutation of gift simplicitor would not be suffice to prove / substantiate factum of transaction of gift in favour of petitioner No,1, and even the subsequent mutation in favour of petitioners Nos,2 to 4 would be, in the absence of any proof and confidence inspiring evidence qua alleged gift, ineffective and of no legal effect. The onus on the beneficiary to prove the basis of mutation was not discharged.
Reference is made to the judgments of the august Supreme Court of Pakistan to fortify the point, which are reported as "Aurangzeb through L/Rs v. Muhammad Jaffar and other" (2007 SCMR 236). Relevant portion of the judgment is reproduced hereunder: "It is a settled law qua the transaction of sale or gift, that it is the duty of the bene ficiary and a heavy onus lay on the beneficiary to prove by convincing evidence satisfying the judicial conscience of the Court that the transaction shown to be a gift was executed by the donor in favour of the donee."
And "Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina" (2004 SCMR 1043 ).
Relevant portion whereof is reproduced hereunder: "3. It is a known principle of law that a mutation is not a deed of title and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is required to fall back upon." A reference is made to a recent unreport ed judgment by august Supreme Court of Pakistan bearing Civil Appeal No,634-L of 2012 titled "Mrs. Khalida Azhar v. Viqas Rustam Bakhshi and others", wherein claim of alleged beneficiary was rejected in wake of its failure to prove the authenticity and veracity of mutations, besides failing to prove the transaction of gift embodied therein.
14. Petitioner No,1, in his written statement, has not specifically denied the factum of accrual of cause of action, for the purposes of limitation in response to paragraph 7, on merits. The respondent has alleged that gift mutation was fraudulent, forged and collusive, which assertion in the plaint was evasively denied in the written statement. The objections regarding limitation, presumption of correctness attached to the entries in the revenue record, subsequent disposal / transfer of the properties by petitioner No,1 to petitioners Nos, 2 to 4 were raised and addressed by the judgments and decrees impugned. The judgments referred by the learned counsel for the petitioners are not applicable to the facts and circumstances of the case, wherein petitioner No,1 has failed to defend alleged mutation of gift. Nothing has been pointed to make out a case to vitiate findings of the courts below or show any material irregularity . The petitioners failed to discharge the onus, being the beneficiaries of the transaction of gift and basis of alleged mutation recorded.
15. In these circumstances, there is no ground to interfere in the concurrent findings recorded by the courts below .
16. In view of the above, this Civil Revision is dismissed and the judgments and decrees of the courts below are upheld.