ABID HUSSAIN CHA TTHA, J. This Civil Revision is directed against the Judgment and Decree dated 01.02.2019 passed by the Additional District Judge, Bahawalpur , whereby , the Appeal filed by Respondents No. 1 to 3 was accepted and consequently , the suit for declaration of the aforesaid Respondents was decreed reversing the Judgment and Decree dated 26.05.2016 passed by the Civil Judge, Bahawalpur , whereby , the suit of Respondents No. 1 to 4 was dismissed.
2. Precisely , the facts of the instant case are that Respondents No. 1 to 4, the real sisters of the Petitioner filed a suit for declaration on 19-10-201 1 regardi ng the suit property fully described in the head note of the plaint, averring therein that the propositus of the parties, namely , Muhammad Akram was owner in possession of agricultural land measuring 141-K, 02-M in Khata No. 26 and 27 situated in Mouza Mangreja , Tehsil and District Bahawalpur (the "Property ") who died in the year, 2000 leaving behind the Property as well as the other property which was not the subject matter of the suit. It was stated that Respondents No. 1 to 4 as the legal heirs of the said deceased were entitled to get their due share in the Property but the Respondent as their only brother in connivance with the Revenue staff fraudulently got the Proper ty transferred by way of oral gift (Tamleek ) vide mutation No. 1189 dated 17.03.1986 (the "Mutation "). It was also asserted that the Petitioner is in illegal possession of the Property and he had been paying share of produce to the Respondents who acquired knowledge of the Mutation upon scrutiny of Revenue Record after the Petitioner started selling part of the Property .
3. The suit was resisted by the Petitioner who controverted the alleged facts assert ed in the plaint by submitting his written statement averring therein that he was the only son and the gift (Tamleek ) of the Property was made by his father by his own free will and accord due to natural love and affection. He further stated that he was minor at the relevant time, hence, unable to conceive any fraud and the gift as well as Mutation was executed and sanctioned in accordance with law. The Petitioner was put in possession of the Property straightaway and his father during his life time continuously maintained this status of the Property . Further , the Petitioner instituted a suit for permanent injunction against his deceased father in the year 1999 in which the propositus himself appeared before the Court and accepted the Petitioner as owner-in-possession of the Property and also got recorded a statement to the effect that he after Tamleek of the Property put the Petitioner in possession in the presence of the witnesses and in this behalf, he himself got attested the Mutation in favor of the Petitioner . After recording of this statement, the Petitioner withdrew the said suit on 25-03-1999. The Petitioner specifically denied fraud and categorically pleaded that since the Respondents were not owners of the Property , therefore, the question of giving them share of agricultural produce does not arise. He submitted that he has made substantial improvements in the Property and the suit against him is result of greed and family disputes. The institution of the suit was also questioned being barred by time and without cause of actio n and having no legal effect against the proprietary rights of the Petitioner regarding the Property .
4. The trial Court out of divergent pleadings of the parties framed issues on 10.04.2016. Issues No. 1 and 2 were pivotal issues. Issue No. 1 was as to whether the Mutation is result of fraud and forgery and, as such, ineffective upon the rights of the Respondents, hence liable to be cancelled, whereas, issue No. 2 was as to whether the Respondents as the legal heirs of deceased Muhammad Akram are entitled to get their respective share in the Property . The onus to proof was placed upon the Respondents. On the other hand, via issues No. 6 and 4, the Petitioner was required to establish that the deceased transferred the Property to the Petitioner through inheritance of Tamleek due to love and affection and as to whether the suit is barred by limitation, respectively . The parties to the suit got recorded their respective evidence.
5. Learned counsel for the Petitioner submitted that the propositus transferred the Property by way of Tamleek to the Petitioner which was accepted in the presence of witnesses. The possession of the Property was handed over to the Petitioner . On the very next day of Tamleek , the Mutation was duly sanctioned. Accordingly , the Petitioner became owner-in-possession of the Property . The Respondents were fully aware of this fact right from the sanctioning of the Mutation. However , due to some family disputes, the Respondents filed a false suit for declaration challenging the gift mutation in favour of the Petitioner . The Appellate Court did not appreciate the evidence on record in its true perspective. The initial burden of proof was upon the Respondents which they miserably failed to discharge. The allegat ion of fraud could not be proved. It was totally ignored that at the time of attestation of the Mutation, the Petitioner was a minor in the age bracket of 13 to 14 years and, as such, he was unable to hatch any conspiracy to commit fraud regarding attestation of Mutation. On the other hand, the Petitioner had proved the gift and sanctioning of the Mutation in his favour with documentary evidence, particularly Exhibits D-6 to D-8 which unequivocally proved that donor himself acknowledged the gift transaction in favour of the Petitioner in his life time before the Court of law. The Appellate Court also fell in error by not apprehending that the suit of the Respondents was badly barred by time as the Mutation in the suit was sanctioned in the year, 1986 and the suit was filed in the year, 2011 after the lapse of 25 years. The Mutation was known to the Respondents as is evident from the statement of the PW-1 and the possession of the Property is admittedly with the Petitioner since the attestation of the Mutation, as such, the suit was time barred. Importantly , Respondent No. 4 had withdrawn her suit after filing an application and recording of her statement to this effect vide Order dated 11.02.2014. She also did not opt to file the Appeal against the dismissal of the suit to her extent also. Hence, the Judgment and Decree of the trial Court ought to be upheld and that of the Appellate Court is liable to be set aside.
6. Learned counsel for Respondents No. 1 to 3 defended the Judgment and Decree passed by the Appellate Court.
It was contended that the evidence on record fully establishes that the Mutation was fraudulently sanctioned.
However , his focus was that the Petitioner was the beneficiary thereof, therefore, he was required to establish the validity of the Mutation for all intents and purposes under the law and in case of his failure to do so, the only inference would be that Tamleek followed by Mutation was the outcome of fraud undertaken to deprive the Respondents from their due share of inheritance. He submitted that Respondents No. 1 to 3 have fully proved their case through confidence inspiring evidence on record. He defended the Judgment of the Appellate Court and prayed that the same be maintained being passed by the higher judicial forum. He relied on cases titled "Abdul Rehman vs. Mst. Majeedan Bibi alias Majeedan" (2017 SCMR 1110); "Muhammad Sarwar vs. Mumtaz Bibi and others" (2020 SCMR 276); "Baja (deceased) through his L.Rs. etc. vs. Mst. Bakhan & others" (NLR 2016 Revenue 3); "Atta Muhammad and others vs. Mst. Munir Sultan (deceased) through her L.Rs. and others" (2021 SCMR 73); "Islam-ud-Din through L.Rs. and others vs. Mst. Noor Jahan through L.Rs and others" (2016 SCMR 986); and "Mian Ghayassuddin and others vs. Mst. Hidayatun Nisa and others" (2011 SCMR 803 ).
7. Arguments heard and record perused.
8. Scanning of evidence on record transpires that Respondent No. 2 herself appeared as PW-1 and deposed that the propositus died in the year 2000 and left behind four sisters, one brother and wife who is alive and together constitute his legal heirs. The Mutation was fraudulently sanctioned in favour of the Petitioner and is liable to be cancelled. However , during her cross examination she deposed that Respondent No. 4 was her elder sister but denied the suggestion that Respondent No. 4 has compromised her claim with her brother . She stated that the Petitioner was the only son of her father but denied that he was dear to her father . She admitted that her father died fifteen years ago. Importantly , she respo nded to a suggestion that it is incorrect that the Respondents did not challenge the Mutation during the life time of their father . She testified that the suit was filed about five years ago.
She also admitted that her father also owned other agricultural land excluding the Property . She categorically denied that at the time of sanctioning of the Mutation, the age of the Petitioner was 13 to 14 years but admitted that after sanctioning of the Mutation all entries as owner exist in the name of the Petitio ner in the Revenue record. She also admitted that the Petitioner made certain improvements regarding the Property and has installed tube well and turbine at a distant place to supply sweet water for irrigation purposes. She completely denied any knowledge regarding the fact that her father appeared in Civil Court in a civil suit for perpetual injunction filed by the Petitioner in which her father himself appeared and made a statement confirming the fact that he has gifted the Property to his son and he had no right or interest over the Property . PW-2 corroborated the evidence tendered by PW-1.
However , in his cross examination he showed ignorance as to how many years the deceased remained alive after the date of sanction of the Mutation but admitted that the suit was not filed in his life time. He also expressed ignorance as to whether the Respondents were married during the life time of the deceased but then himself stated that perhaps the deceased died after the marriage of his daughters. He admitted that the suit was not filed even after ten years from the date of death of the deceased. He categorically admitted that ownership and possession of the Property since passing of Mutation are in the name of the Petitioner in Revenu e record. He also admitted that the Propositus left behind properties other than the Property from which the Respondents have got their due share.
PW-3 stated that he was an ex-Lambardar . He admitted that the Mutation was sanctioned in the year, 1986 when the deceased was 80 years of age and usually remained sick. He further stated that he used to go to Bahawalpur for his treatment with his son. He stated that the wife of the deceased and the Respondents were not aware of sanctioning of the Mutation and as soon after it was so known, a meeting was held within the bratheri demanding the Petitioner to give share of the Propert y to them before instituting the suit. In his cross examination, he admitted that wife of the deceased is alive who has not filed the suit and has never questioned the Mutation. He admitted that Petitioner is owner-in-possession of the Property since the date of the Mutation whose age at that time was 15 to 16 years. He admitted that he was not a Lambardar at the time of deposition or at the relevant time, however , his father was Lambardar at that time. He stated that since the Respondents were deprived from their share of inheritance, therefore, the Mutation was defective. Thereafter , the counsel for the Respondents exhibited documentary evidence and closed the evidence of the Respondents.
9. The Petitioner himself appeared as DW-1 and deposed his version as taken in the written statement. He asserted that due to natural love, affection and good services, the Property was gifted to him by his father in presence of witnesses, namely , Jam Abdul Malik, Jam Abdul Khaliq, Jam Manz oor Ahmad and Dr Muhammad Hayat and he was put in possession of the Property . The very next day, Revenue officials attested the Mutation in the presence of witnesses, Jam Manzoor Ahmad and Muhammad Afzal, whereas, identification was done by Dr. Muhammad Hayat since he was a minor at the time of Tamleek in his favour . He further deposed that in another civil suit filed by him in the year, 1999 in the civil Court, the fact of sanctioning of the Mutation was verified by his father . He testified that the deceased died at the age of 100 years and he never had any decease of forgetfulness.
All the legal heirs were duly included in the inheritance mutation No. 577 and Respondents No. 1 to 4 were given their due share with respect to the properties of the deceased left behind at the time of his death. He categorically mentioned that the witnesses with respect to impugned Tamleek / Mutation had died. On a suggestion, he categorically stated that he has no objection if thumb impressions of his father on the Compromise Deed recorded before the Court in his suit for perpetual injunction or the Mutation are sent for comparison. He deposed all the facts as per his pleadings and remained consistent during lengthy cross examination. DW-2 was Record Keeper of Qanungo office who brought the original record regarding the Mutation and verified copy thereof was placed on the record as Exhibit D-1. DW3, Abdul Malik deposed that the deceased had gifted the Property in his presence and unequivocally corroborated the version of the Petitioner although Respondent No. 3, namely , Naseem Bibi was his daughter-in-law . He deposed that the Tamleek was undertaken in his presence and other persons, namely , Abdul Khaliq, Dr. Muhammad Hayat and Manzo or Ahmad who are now not alive. He also testified that the then Patwari , Tehsildar and witnesses of the Mutation have died. He also deposed that possession of the Property is with the Petitioner . Further stated that he was a witness of Tamleek but not of Mutation but was present at the time of Mutation and the entire transaction took place before him. No stamp paper was written regarding Tamleek . The deceased enjoyed good heath throughout his life and lived for 100 years. DW4 (Abdul Khaliq) another independent witness also testified on similar lines as that of DW3. The Petitioner closed his evidence after tendering documentary evidence.
10. The evidence on record unequivocall y establishes that the Mutation was sanctioned in the year, 1986 and the deceased died in the year 2000. Admittedly , the Mutation was not challenged during the life time of the deceased.
Rather , the suit was filed on 19-10-201 1 after 11 years from the death of the deceased and 25 years from the date of the impugned Mutation. No particulars of fraud were listed in the plaint at all. There is no evidence regarding the nature and particulars of the fraud. The accusation of fraud in the pleadings and the evidence produced by Respondents No. 1 to 3 is restricted to general, bald and evasive assertion that fraud has taken place since the Respondents were deprived of their share of inheritance on account of the impugned Mutation. No revenue official was made a party to the suit or produced by the Respondents. In fact, no name of even one Revenue Official connected with alleged fraud is on record. Respondent No. 4 who is also a sister of the Petitioner resiled from her claim during the pendency of the suit by filing an application to the effect that the impugned Mutation was sanctioned in accordance with law. She herself appeared before the trial Court and recorded her statement on 04- 02-2014 in this behalf. Her interest in the Property was analogous to that of the Respondents No. 1 to 3. However , PW-1 even denied knowledge of the same. Remaining Respondents did not enter the witness box. It was admitted by the PW's that the estate left behind by the deceased was duly distributed amon g the legal heirs after his death.
No explanation is available to the effect that at the time of sanctioning of the said inheritance mutation, why inheritance of the Property was not questioned by the Respondents. This single proved fact completely falls to ground the assertion of the Respondents regarding their ignorance about Tamleek as well as the Mutation. Further , had there been an intent of fraud, the other properties of the deceased could also have been taken away by the Petitioner . The possession and ownership of the Petitioner was established from the evidence on record and admitted. The fact of death of the witnesses regarding the transaction was not controverted by the Respondents.
The ingredients of gift, offer, acceptance and possession were established from the oral and documentary evidence on record. The improvements made on the Property by the Petitioner were also confirmed by the PW's. There is no evidence at all on record regarding the claim of the Respondents that the Petitioner had been paying share of agricultural produce of the Property to the Respondents. The specific denial of the Petitioner to this effect went unrebutted. Knowledge of the Respondents is also established from this fact. The deceased also candidly admitted the factum of the Tamleek and Mutation before the civil Court in a civil suit for perpetual injunction filed by the Petitioner against the deceased in which the later himself appeared and made statement confirming the fact of Tamleek and the Mutation. As per Exhibits D-6 to D-8, the said suit was withdrawn in the light of a Compromise Deed in which the deceased stated that he has also spoken to his daughters not to interfere in the possession of the Petitioner . The Petitioner candidly stated in response to a suggestion that he had no objection of comparison of thumb impressions of the deceased on judicial record tendered in evidence. This material evidence affirming the Mutation went unchallenged. Sanctity is attached to judicial record which if undermined will lead to chaos and disruption in society as there would be no end or finality to a transaction. No evidence is on record even questioning the authenticity of judicial record duly exhibited by the Petitioner in this respect. The fact that the Petitioner was under age as alleged in the written statement was not only proved by the Respondents but also admitted by PW-3 although denied by PW-1 as sister of the Respondent which aptly demonstrates that the evidence of PW-1 was not confidence inspiring. Except a general statement that the deceased was of old age and sick, nothing is on record regarding his medical condition or nature of ailment. Rather , the defense witnesses candidly deposed that the deceased had a good health and lived for 100 years. No evidence is on record which establishes fraud on the part of the Petitioner who was a minor at the time of the gift which unequivocally establishes that the Property was confer red upon the Petitioner by his father through his free will and consent.
Reliance is placed on case titled "Sikandar Hayat and another vs. Sughran Bibi and 6 others" (2020 SCMR 214).
11. The Appellate Court founded its Judgment on the wrong premises that the initial burden to prove the Mutation was upon the Petitioner being beneficia ry thereof completely ignoring the fact that the Respondents failed to discharge the initial burden of proof so as to shift the same upon the Petitioner . Not even remotest element of fraud was alleged or proved except general and bald accusation of fraud. Conversely , the Petitioner was able to prove that Tamleek followed by Mutation was sanctioned without any fraud and was executed by free will and desire of the deceased which was also authenticat ed through subsequent judicial proceedings (Exhibits D6 to D-8) referred above that remained unrebutted. The Appellate Court underwent an irrelevant discussion on the said proceedings, although, the only purpose thereof was to establish that the deceased in his life time in the suit categorically affirmed the factum of Tamleek followed by Mutation and his intent regar ding the same was manifest and obvious.
This Court is also not in agreement with the finding of the Appellate Court that the statement of the DW-1 was beyond pleadings since the factum of witnesses was duly mentioned in the written statement and in furtherance thereof, the names of the witnesses were deposed in his statement. The date and time of Tamleek and Mutation is also proved in evidence of the PW's. The Appellate Court went too far in its analysis to observe as to why the DW-2 and DW-3 did not become witnesses to the Mutation. The Appellate Court erred to consider the testimony of PW-3 as that of a Lambardar , whereas, he was not so at the time of attestation of the Mutation or at the time of deposition as testified by him.
12. Learned counsel for the Respond ents heavily relied upon the cases cited supra which are clearly distinguishable and not attracted to the facts and circumstances of the instant case. In the Abdul Rehman case (supra), the essential features of gift were not proved, oral gift preceded a considerable time before mutation of gift was sanctioned and possession of property was not delivered. In the Muhammad Sarwar case (supra), the alleged mutation based on oral gift was attested just four months after the death of the deceased, the ingredients of gift were not proved and Revenue officials sanctioning the mutation were alive and known yet not produced, as such, fraud was not only self-evident but conclusively established. In the case of Baja (deceased) (supra), additional protection was accorded and recognized with respect to illiterate and pardanashin ladies in terms of Article 127 of the Qanun-i-Shahadat Order , 1984 regarding a gift of their own property which they alleged to have not been made. In Atta Muhammad case (supra), the gift in question was made a few months before the deceased passed away , there were serious questions regarding the deceased' s health and state of mind, and ingredients of gift were not proved. In Islam-ud-Din case (supra), the attesting witnesses and Revenue Officials were alive and not produced and as such the validity of gift was not proved. In the case of Mian Ghayassuddin (supra), irrefutable evidence was on record regarding ailment of the mother who died a few months ago before the alleged date of gift and it was not ascertainable as the gift was the result of free will and understanding. Hence, the aforesaid cases were decided on the basis of their own peculiar facts and circumstances which are conspicuously distinguishable from the facts and circum stances of the instant case. The general rule is that when the Judgments of the Courts below are at variance, the findings of the Appellate Court are to be preferred unless findings of the Appellate Court are against the material on record or result of misreading or non-reading of evidence or reasons therein are arbitrary , fanciful and perverse as held in case titled, "Muhammad Hafeez and another Vs District Judge, Karachi East and another" (2008 SCMR 398). Needless to reiterate that the findings recorded by the Appellate Court for the reasons recorded in this Judgment fall within the exceptions of the general rule.
13. No doubt that the right of inheritance is the most valuable, cherished and eleme ntary right granted by Islam and law but equally indispensable is the right to create, hold and dispose of property which is recognized and protected with the same zeal and command of Islam and law. The right of inheritance can only be enforced against the estate of the deceased left behind at the time of death. By no stretch of imagination, the right of inheritance extends to question the legitimate and lawful transac tions of transfer of property undertaken by the deceased in his life time by himself through the instrumentality of the State after following the due process of law merely on the basis of bald, general and evasive assertion of fraud unsubstantiated by cogent and irrefutable evidence. Such transactions can at best be treated at par with any other transaction challenged on the basis of fraud. Once that threshold is crossed and the transaction is cancelled, it is only then that the question of inheritance will arise. On the touchstone of the aforesaid principle, the instant suit was barred by time. Reliance is placed upon Sikandar Hayat case (supra).
Challenging a solemn transaction under the color or faade of inheritance will not and must not change the character of the transaction vis--vis any other transaction executed by the deceased with a stranger . Further , unless fraud is conclusively established by the party alleging it, going behind the transaction executed by the deceased not questioned for years in his life time on the touchstone of procedural irregularities would tantamount to trial of his grave. The obvious reason is that it is the duty of the State officials to ensure the fulfillment of procedural requirements before sanctioni ng or passing of a transaction. In case, there are any procedural lapses, the parties to a transaction have a right to know and the State functionaries are under a duty to point out before sanctioning the transaction so that the persons involved in the transaction get a fair and reasonable opportunity to rectify the same and enforce their will and decision thereafter . Cancellation of such a transaction after the death of the deceased on the basis of procedural lapses would invariably mean that the deceased would never get an opportunity to enforce his desire and intention regarding the disposal of his property which would stand substituted by the decision of the Court. The owner of a property has every right and privile ge to transfer or dispose of the Property in his life time in the manner he so desires, be that be in favour of any of his children. In fact, this is a fundamental right encapsulated, articulated and recognized under Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, it must be respected and given protection by all including the Courts of law in the absence of any fraud proved through unimpeachable and irrefutable evidence on record to the effect that the State functionaries were involved in the sanctioning or attesting of the transaction in question against the will or desire of the deceased. The burden of proof would be much higher when the person assailing the transaction is a stranger to the transaction and is allegedly not a party to the transaction. In other words, the essence or nature of the challenge is that had the transaction been not executed , the person challenging would become a beneficiary thereof. Therefore, the ultimate beneficiary principle would be invoked to see the evidence in juxtaposition to arrive at a just and fair decision. Long standing Revenue entries carry presumption of correctness which are liable to be preserved and protected unless the presumption is dislodged through reliable and credible evidence.
14. The upshot of the above discussion is that Respondents No. 1 to 3 could not establish their claim asserted in the plaint. Accordingly , this Civil Revisio n is accepted . Consequently , Judgment and Decree dated 01.02.2019 passed by the Additional District Judge, Bahawalpur is set aside, whereas, Judgment and Decree dated 26.05.2016 passed by the Civil Judge, Bahawalpur is upheld. Resultantly , the suit of the Respondents No. 1 to 3 stands dismissed with no order as to costs.