MUHAMMAD NAEEM ANW AR, J. Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitio ner has assailed the judgments and decrees, dated 30.04.2019 and 28.09.2019, of learned Judge, Family Court, Charsadda, and learned Additional District Judge, Charsadda, respectively , whereby her suit to the extent of 12-kanal 06-marlas property from khasra No.1224/656, 1224/654- 655-657, 1218/643, 644, 1148, 648, 649,651,645, 692/1332-1250,634 to 636, situated in the revenue estate of Tibana, Dstrict Charsadda, was dismissed concurrently .
2. Necessary facts, leading to the institution of instant petition are that the petitioner filed a suit against her husband, Asfandyar (respondent No.1), his brothers and sisters for her claims, such as, (i) recovery of five tola gold ornaments (ii) recovery of house, measuring 1-kanal, description of which was given in the head note of the plaint,
(iii) recovery of agricultural property , measuring 12-Kanal 06-marlas, (iv) recovery of Rs.5000/- per month as maintenance, since, December , 2013. Respondent No.1, petitioner 's husband has submitted cognovits and respondent No.2 to 7 have submitted their detailed contested written stateme nt. On the basis of conflicting pleadings of petitioner and respondent No. 2 to 7, the learned Judge, Family Court, framed the issues and after recording of evidence, the petitioner 's suit was decreed except the relief for recovery of 12-Kanal 06-Marlas property , and to the extent of said prayer , the learned Judge, Family court, has decided the matter to the extent of the transfer of property in petitioners favour in the following terms.
"Recovery of share of defendant No.1 in the agricultural property as per the detail given in head note of the plaint or its market value."
Still feeling aggrieved, the petitioner assailed the judgment of the learned trial Court before District Court Charsadda, however , the appellant court has dismissed her appeal, hence, the instant petition.
3. Learned counsel for the petitioner contended that the disputed property , including house and agricultural property , was transferred in favour of petitioner by respondent No.1, who has submitted his cognovits in her favour .
As respondent No.1 was owner of house in question and the disputed property was transferred in her favour on the strength of ExPW2/1& Ex.PW 2/2, both were proved through concrete, direct and convincing evidence, but both the courts below have not considered the evidence in its true perspective which resulted into grave miscarriage of justice. He vociferated that the impugned judgments and decrees to the extent of dismissal of petitioner 's claim are the result of misreading and non-reading of evidence and misapplication of law .
4. Arguments heard and with the valuable assistance of learned counsel for the petitioner the record perused.
5. Scrutiny of the record reveals that the contested respondents have taken two objections with respect to petitioner 's claim in question, firstly , that house in question was the ownership of Fazal-e-Rahim alias Wafadar Khan (Predecessor in interest of respondent No.7) on whose death that was devolved upon respondent No.7 besides other legal heirs including Nasir Rehman, Fateh Rehman and Muhammad Iqbal, whereas Mst. Pukhraj has never remained the owner of house in question. Secondly , that the agricultural property was the ownership of Mst.
Pukhraj' s mother , from whose inheritance 12-kanal was devolved upon Mst. Pukh raj, however , during life time of Mst. Pukhraj begum, her husband, namely , Sher Rehman was managing the affairs of it for the purpose of cultivation etc. Possession of the property remained with respondent No.7, either in the life time of Mst. Pukhraj Begum and after her death, likewise, Mst. Pukhraj Begum had never gifted the suit property to respondent No.1 through deeds Ex: PW 2/1 and Ex: PW 2/2, thus the same are the result of fraud and collusion between petitioner and her husband (respondent No.1).
6. Of course, when the alleged gift was denied by the contesting respondents i.e. respondent No.2 to 7, the onus was upon petitioner to prove the validity , correctness, and genuineness of the deeds, as alleged by her. With respect to the first objection regarding the transfer of property by respondent No.1 in her favour , petitioner has not placed on record even an iota of evidence as to whether her husband had become the owner of house in question on the basis of Ex: PW 2/1. It was to be proved by her that Mst. Pukhraj Begum being the owner of house had transferred her share through gift in favour of respondent No.1. The entire evidence produced by the petitioner is silent with respect to the proprietorship / title of house in question. The contents of Ex: PW 2/1 further reveals that the disputed house was shown to have been constructed in abadi-deh , description of which was properly given in the said deed. In order to prove the ownership of disputed house neither any documentary nor oral evidence was ever produced by the petitioner to support her claim.
7. Adverting to the next objection that petitioner has become the owner of the agricultural property on the basis of deeds (Ex: PW 2/1 and Ex: PW 2/2), the revenue papers have cleared the situatio n that Mst. Pukhraj Begum had become the owner of the property , but the factum of gift by her in favour of respondent No.1 was requiring concrete, tangible and solid proof. Both the deeds were required to be proved by the petitioner regarding which when she appeared in the witness box as PW-2, in cross-examination she deposed that besides her the deeds were signed by respondent No1. Record further suggests that PW-03 namely , Syed Jamal Shah, who happened to be the brother of petitioner , in his cross-examination has stated that deeds in ques tion were signed by him and his father , besides petitioner . The intriguing aspect of the matter , while exploring the deeds, led to the conclusion that none of the aforementioned deeds was signed by petitioner . It appears that Ex: PW 2/1 was allegedly thumb impressed by executor Mst. Pukhraj Begum whereas Syed Farooq Shah and his son Syed Jamal Shah were the attesting witnesses of the same. Ex: PW 2/2 was allegedly executed by respondent No.1, marginal witnesses of which were Syed Farooq Shah and his son Syed Jamal Shah. Neither the petitioner nor PW-03 Syed Jamal Shah had been able to prove the validity of gift. Apart from above, gift in question was required to be proved within the parameters as provided in Muhammadan law and Islamic jurisprudence by proving the basic ingredients such as offer , acceptance and delivery of possession . Interestingly , respondent No.1, the husband of petitioner , though has submitted his cognovits, but has not bothered to appear in the witness box in order to prove the factum of gift, being beneficiary of deeds and executants of Ex: PW 2/2. When the deeds were categorically denied then ultimately petitioner was required to prove not only execution of deed but also the factum of gift. Respondent No1 being beneficiary of the alleged gift was an important person who could have deposed in petitioner 's favour , subject to the cross-examination by contesting respondents. Record transpires that petitioner and respondent No.1 are still tied with marriage bond living in one and the same house, in such circumstances petitioner No.1 was in a better position even to produce respondent No.1 as her witness or he himself could appear as DW in support of his cognovits statement. It is well settled principle of law that when best available evidence is not produced then in accordance with Article 129(g) of the Qanun-e-Shahadat Order , 1984 adverse inference would be drawn against the party , who withheld such evidence.
Reliance is placed on case titled "Muhammad Sarwar Vs Mumtaz Bibi and others" (2020 SCMR 276), wherein it is held that: "It is clear from the record that the aforenoted provisions of section 42 ibid were not followed. It is also noticeable that the concerned Tehsildar who had allegedly sanctioned the mutation namely Rehmat Ali and another witness of the mutation namely Anwar Hussain (Patidar) were material witnesses of the alleged gift mutation. They were however not produced for any valid reason. Therefore the presumption of Article 129 of the Qanun-e-Shahadat Order by reason of withholding of the best evidence can also be drawn against the Petitioner".
8. The petitioner 's claim is based upon the gift allegedly made by Mst. Pukhraj Begum in favour of respondent No.1, but regarding the declaration of gift with its particular , day time and place the petitioner 's evidence is silent, similarly , the evidence so produced by the petitioner was not credible to the extent to prove the genuineness of Ex: PW 2/1. The august Supreme Court of Pakistan in case titled "Muhammad Nawaz and others Vs Sakina Bibi and others" ( 2020 SCMR 1021 ), regarding the mode and manner requiring the proof of gift has observed that: "9. We note that the defendants in the suit neither mentioned the date, time, place or names of the witnesses in whose presence the oral gift was made in their written statement nor in the evidence produced by them before the trial Court. Even otherwise they could not have improved up on their case set up in the written statement in their evidence on the principle of "Secundum allegata et Probata", meaning, a fact must be alleged by a party before it is allowed to be proved. The petitioners were able to produce only one witness namely Nazeer Hussain Shah-DW -2, who claimed to be present when the oral gift was allegedly made. Even he was not able to disclose the date, time or venue of the oral gift. We also notice that in the cross-examination, DW-2 admitted that at the time of alleged gift mutation Ghulam Muhammad, the donor was about 80 years old. He also admitted that at the time of attestation of the gift mutation no Patidar was present but claimed that he witnessed the mutat ion in his capacity as a Patidar .
DWs 3, 4 and 5 also deposed on the same lines and more significantly failed to utter even a single word about the oral gift or time, date and venue of the same. We are therefore, satisfied that the beneficiaries on whom the onus to prove the oral gift lay , utterly and miserably failed to prove the same in a manner prescribed by the law ."
In another case titled "Muhammad Sarwar Vs Mumtaz Bibi and others" (2020 SCMR 276), their lordships have held that: "The petitioner also failed to independently prove the validity of the alleged gift mutation. This Court has held in a number of judgments that where the validity of a gift mutation is challenged, it is incumbent upon the beneficiary not only to prove the validity and legality of the gift mutation by producing all relevant evidence but it is also necessary that the gift itself be proved through cogent and reliable evidence. Both the said requirements were admittedly not met. Neither the alleged oral gift was proved by any credible evidence nor was the legality or validity of the alleged gift mutation proved by producing credible evidence."
Likewise in case titled "Naved Akram and others Vs Muhammad Anwar" (2019 SCMR 1095 ), the dictum was laid down as such.
"Further , transfer of the property by way of gift in favour of his sons by Muhammad Akram was obviously a device to deprive the Respondent of his right that has accrued to him by reason of execution of the agreement to sell and payment of earnest money . Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further , no witness in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is insufficient to establish a valid gift which could have the effect of defeating the rights of the Respondent. Even otherwise, the lower fora correctly found that the mutations were undertake n under questionable circumstances which also involved tampering and antedating for which no plausible or legally sustainable explanation was forthcomi ng. Even otherwise, the gift and the resultant mutation need to be independently proved. In the instant case, there was complete failure on the part of the petitioners to prove the oral gift through production of credible witnesses."
9. Besides the above, there is no cavil with the proposition that a person not being the owner of property cannot alienate the same in any manner to any one as no one can transfer the better title then his own. When Mst. Pukhraj Begum was not the owner of property or for that matter , when the petitioner has not been able to prove the ownership of Mst. Pukhraj Begum, then how could she alienate the disputed house in favour of respondent No.1?
Reliance can be placed on case titled "Ghulam Rasool and others Vs Noor Muhammad and others" (2017 SCMR 81 ), wherein the law has been laid down as: "This even is not the case of the appellants that the transfer to them was with the consent of two brothers whose names have been illegally and unauthoriz edly removed from the column of ownership by the revenue authorities, so as to bring the case within the purview of section 41 ibid. In the instant case as it is an undisputed fact that the property in question was owned by Muhammad Siddique who was survived by four sons (named above) and they all became the joint owners of the property . The entries in the revenue record to that effect were made and are vivid and uncontroverted. How and why the names of the two brothers from the revenue record were removed is absolutely obscure. It is not the case of the present appellants that the said brothers had transferred their share in the joint property (purchased by them) in favour of the other two brothers by any lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the appellants had taken reasonab le care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his legal heirs i.e. four brothers jointly and that all these four brothers still continue to be the co- owners of the property; and that the exclusion of Ghulam Muhammad and Jewan's name from the revenue record is not on account of any legal or authorized transaction or mode, rather for either a human error or because of some tainted reason."
10. It is pertinent to mention here, that respondent No.1 who had allegedly become the owner of property and later on transferred the same in favour of petitioner has not contributed much in petitioner 's favour as except by submitting the cognovits he kept himself behind the Curtain and waited for the desired result, as per the whims and wishes of petitioner , because both seemed to be in league with each other . This Court in case titled "Syed Azhar Hussain shah Vs. Member Board of Revenue Khyber Pakhtunkhwa and others" (2016 YLR 1849), has observed that: "6. It is by now established that vendor cannot transfer a better title than that he possesses at the time of transfer .
Mere fact that mutation has been attested in favour of some of co-sharers would not extinguish title of other co- sharers. Section 42 of the Land Revenue Act, 1967 provides the mechanism for transfer of rights in periodical records. The word "purchase" used in subsection (1) of section 42 would oust the attestation of mutation in exclusive Hissadari mutation in possession. Ownership has been defined by "Salmond on jurisprudence" that it is relationship between a person and any right that may be vested in him. According to Austin "ownership" is a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. Holland defines ownership "as a plenary control over an object." According to him ownership is exercise in its primacy and fullest sense over physical objects only ."
This principle has also been settled in number of cases, reference can be made to 2016 CLC Note 35, 2016 CLC Note 22, 2015 CLC 1004 , 2009 CLC 1022 , and 2006 CLC 482 .
11. Learned counsel for petitioner has not been able to point out any jurisdictional defect, misreading and non- reading of evidence, illegality or irregular ity and want of jurisdiction in concurrent findings of court below , as such there is no force in the instant petition, the same is hereby dismissed in limine, with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.