MUHAMMAD SHAN GUL, J :- Through this judgment the titled civil revision is sought to be decided.
2. Qasim Ali and his two brothers i.e. petitioners in the present civil revision institut ed a suit for declaration praying that they were owners of suit property and that mutation No.1218 dated 24.2.1999 in favour of respondent Manzooran Bibi and her three daughters was against the law and facts and resulted out of collusion between respondents and the revenue officials and was, therefore, void. This suit was decreed by way of judgment and decree dated 26.1.2010. The respondents preferred an appeal and vide judgmen t and decree dated 26.5.2010 a learned Addl. District Judge allowed the appeal and set aside the judgment and decree dated 26.1.2010 passed by a Civil Judge. The petitioners have now filed this civil revision against judgment and decree dated 26.5.2010 passed by a learned Addl. District Judge praying for the judgment and decree of the appellate court to be set aside and the civil court to be restored.
3. Facts in brief are that the petitioners instituted a suit before the civil court praying that they were owners of land measuring 32 kanals in Khewat No.171/164, Khatooni No.667/668, situated at Chak No.251/668, Burewala and that an earlier mutation of Tamleek No.1218 dated 24.2.1999 on the basis of an earlier recorded Rapat No.290 in Roznamcha Waqiati was illegal and ineffective upon inheritable rights of the petitioners and that the same was liable to be set side.
4. It may also be mentioned here that the petitioners and respondents are paternal cousins i.e. sons and daughters of two real brothers. The petitioners based their case on the premise that not only was their paternal uncle incapacitated to make such a gift but also that since he did not have a son, they had been deprived of their inheritance.
5. After framing of issues, which are as follows:- "1. Whether the mutation No.1218 dated 24.2.1999 is wrong, contrary to law and facts, ineffective upon the rights of the plaintiffs and liable to correction in the revenue record?OPP
2. Whether the plaintiffs have no cause of action?OPD
3. Whether the plaintiffs are estopped by their words and deeds to institute this suit?OPD
4. Whether the plaintiffs have filed false suit just to harass the defendants and is liable to be dismissed with cost U/S 35-A CPC?OPD
5. Relief." the learned trial court decreed the suit filed by the petitioners vide judgment and decree dated 26.1.2010. The learned trial court based its decision on the fact that Mst. Kaali Bibi, daughter of respondent-Manzooran Bibi and one of the beneficiaries of the Tamleek mutation who was shown to be presen t at the time of recording and attestation of mutation testified before the learned trial court that she was not present at the time of the mutation and that since she was the only one whose presence had been shown during the transaction of mutation and not of her other three sisters, this was crucial, of the essence and, therefore, the determining factor in allowing and decreeing the suit filed by the petitioners. The learned trial court also lamented that there was no evidence of the transaction of gift either because no evidence had been led by the respondents to establish offer, acceptance or delivery of possession. What also alarme d the learned trial court was the apportionment of share of land among respondents since land more than her share had been reserved for Mst. Kaali Bibi while her three real sisters had been given land less than what was show n to be given to Mst. Kaali Bibi. The learned trial court wondered whether there was collusiveness in the matter . The learned trial court held that it was duty of the respondents to prove the disputed mutation and since they had failed to do so the suit filed by the petitioners was decreed.
6. In appeal, the respondents argued that while the learned trial court had not alluded to the question of limitation, it had also ignored the fact that the petitioners did not deliberately and contumaciously challenge the disputed transaction during the lifetime of the predecessor-in-interest of the respondents even when he remained alive for four years after effectuating the disputed mutation, that Rapat Roznamcha and entries in Record of Rights carried presumption of truth and the signatures of the parties were not necessary . The learned appellate court noted with advantage the fact that besides Mst. Kaali Bibi who had appeared as DW-1 and deposed that her father had got attested the mutation of Tamleek in favour of his four daughters and who was not on good terms with his real nephews who had entangled him in various litigations, the respondents/defe ndants also produced Ghulam Muhammad as DW-2 who deposed that his father Sikandar and Abdul Majeed Wattu were witnesses of the mutation and who identified the thumb mark of his father on Exh.P/1 i.e. the disputed mutation. DW-2, learned appellate court noted, also deposed that predecessor-in-interest of respondents Muhammad Yaqub put his thumb mark on Exh.P/1 in his presence. The learned appellate court also noted with concern the fact that the petitioners despite being in the knowledge of such mutation on account of, both, their avid interest in the suit property as also on account of their blood relations with the respondents kept mum during the life time of Muhammad Yaqub and waited for him to die before staking a claim to his property . The learned appellate court noted that this element was heightened by the fact that the predecessor-in-interest of respondents was not on good relations or terms with his real nephews i.e. petitioners before this Court and that, therefore, he had a reason to deprive them of their inheritance by gifting property to his real daughters.
7. The learned appellate court further noted that the mutation in dispute itself mentioned that it was sanctioned in a general meeting of the people of locality . That copy of Register of Rights for the year 2000-2001 confirmed the ownership of the respondents over the gifted property and that presumption of truth was attached to the Register of Rights which could only not be taken into account if it was rebutted and which it was not. Likewise, the learned appellate court noted that Exh.P/3, a copy of daily diary No.290 dated 08.2.1999, revealed and exhibited the fact of gifting 32 kanals in favour of respondents and presumption of truth was attached to the said daily diary .
8. The leaned appellate court in so far as the question of proving of gift is concerned noted that the donor being the real father and donees being his real daughters, there was reason enough for making a gift in their favour especially because their predecessor-in-interest had no male issue and also because he had been rubbed the wrong way by his own real nephews (petitioners) and which provided him a reaso n to deprive them of the fruits of his property . The learned appellate court relied on certified copies of plaint, written statement and judgment dated 03.4.2003 in this respect. The learned appellate court, in so far as the question of offer is concerned ruled that there was an implied offer by the donor to his daughters and an implied acceptance by the respondents and that in the peculiar circumstances of the case when the relationship between donor and donees was admitted and there was reason for gifting the land in question and which land was being cultivated by a tenant there was no need for any abstract change of possession and a direction from the donor to the donees regarding shifting of possession was suf ficient.
9. I have heard the learned counsel for the parties and perused the available record.
10. While the counsel for the petitioners has supported and based his arguments on the judgment of the learned civil court the counsel for the respondents has obviously supported the judgment of the learned appellate court.
11. The Hon?ble Supreme Court of Pakistan in "Muhammad Hafeez and another v. District Judge, Karachi East and another" ( 2008 SCMR 398 ) has provided guidance to deal with a situation such as the present one:- "7. It is well-settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non- reading of evidence or that the reasons recorded for reversal of judgment are arbitrary , fanciful and perverse."
12. The judgment passed by the learned appellate court is believable, nearer to life and reflective and in line with social justice as opposed to the overtly technical judgment of the learned civil court. It is indeed par for the course for muslim men without sons but with daughters to gift their properties to their daughters during their lifetime so as to not allow the sons of theirs brothers or sisters to lay a claim to the property after their death. It is evident that in the present case the donor had no male issue and going by recognized common tenants prevalent in the society , a sonless father transferring his whole property to his daughters to avoid its transfer to his brothers or their children after his death is not unusual. There is, therefore, nothing alarming either about the approach adopted by the learned appellate court or the basis on which the judgment of the learned appellat e court is based. This should be read alongside the fact that there was no love lost between predecessor-in-interest of the respondents i.e. donor and his nephews who had kept him anxiously busy in litigation and against whom the donor had a reason for depriving them of their inheritable share. Therefore, there existed circumstances in which the gift could have been, and was, made.
13. Furthermore, it is also obvious that non-impleadment of revenue officials and the revenue hierarchy in the suit filed by the petitioners is fatal to their case and in terms of the law laid down by the Hon'ble Supreme Court of Pakistan in "Sakhi Jan and others v. Shah Nawaz and another" (2020 SCMR 832) at 837, "However , where a public document or document sanctioned by a public officer is challenged, it cannot be left at the whims of the parties to produce the same before the Court. Particularly , this burden would fall upon the Defendant, trying to defend the sanctity of the impugned mutation or registered document, to bring the revenue officer in the witness box. However , the principles of justice dictate that the person whose act is challen ged before the court should be allowed an opportunity to defend his actions. Even if no direct interest of said office r is being affected, his acts as a public officer carry the presumption of regularity and correctness attached to them which needs to be actively rebutted; further , he must also be provided with an opportunity to defend the same. Therefore, the revenue officers and the Provincial Government are proper parties in cases where registered sale deeds and mutations have been challenged. In the instant matter , where fraud and collusion of revenue officers had been alleged, their presence before the court was indispensable for proper and complete adjudication of the matter . Yet, they were not impleaded while seeking a declaration against the impugned mutations ," this omission is indeed fatal !
14. That likewise, in "Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs and others" ( 2020 SCMR 483 ) the same rule has been laid down at pages 486 and 487 as follows:- "8. Another defect observed in the instant Suit pertains to non-impleadment of the Provincial Government and the relevant public functionaries as parties in the Suit. When a document is registered or a public functionary prepared a document, action taken or orders passed in discharge of his duties performed in due course of law, it has the presumption of regularity attached with it, and that presumption needs to be rebutted with strong evidence.
Furthermore, it is an indirect right of public functionary who has acted within the mandate of law to be able to defend the sanctity and validity of the documents prepared, actions taken or orders passed by him in the performance of his duty. We have noted that private parties have shown the tendency to bring about Suits for Declaration or cancellation of registered Sale Deeds and mutations with the intention of getting the same set aside; and many a times, the relevant revenue authorities and the representatives of the Provincial Government are not produced before the Court, nor impleaded as parties, creating a serious defect in the Suit. Same is the case at hand. This Court, therefore, is of the view, that non-impleading of public functionaries in the Suits for Declaration and cancellation of public documents pertaining to immovable properties, prejudices the rights of authorities to defend their actions and does not enable the Court to decide the matter effectively and adjudicate completely ."
15. The rule of law quoted above gains importance when considered in the context of the fact that the petitioners did not disclose the factum of the time of knowledge of the allegedly irregular mutation and never disclosed as to how they came to know about the allegedly irregular and collusive mutation and, therefore, their case was hit by the law laid down in "Khalid Mehmood v. Mst. Naseem Akhtar and 9 others" (2017 MLD 338) at 341. What is also obvious is that none of the respond ents i.e. three sisters other than Kaali Bibi ever challenged the mutation and the trial court' s observations about collusiveness so as to allow Kaali Bibi a greater share in her father 's property loses significance. It is also equally obvious that the petitioners led no evidence whatsoever to establish their plea that Muhammad Yaqub, the donor was incapacitated to make the gift. A plea they took themselves but which they utterly failed to prove .
16. Furthermore, presumption of regularity is attached to official documents and in the present matter the Register of Rights as also the copy of daily diary which are official documents had presumption of regularity attached with them and since this presumption was never even remotely rebutted these documents were rightly relied upon by the learned appellate court as establishing the factum of gift. In this regard it may be stated that Rapat Roznamcha and the Register carrying entries in Record of Rights carry presumption of truth and were, therefore, rightly relied upon by the learned appellate court. If any authority is required, reliance may be placed on "Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs and others" (2020 SCMR 483) at 486-C. Likewise, in "Khalid Mehmood v. Mst. Naseem Akhta r and 9 others" (2017 MLD 338) at 342-C, it has been clearly held that, "presumption of truth attaches to official record in the absence of anything to the contrary ."
17. In "Sakhawat Ali and 18 others v. Province of Punjab through Collector , Faisalabad and 13 others" (2002 YLR 2338 ), it has been held at 2342-B as follows: "No doubt the mutation is not the proof of title but the Rapat Roznamcha Waqiati Exh.P .6 which has been exhibited without objection on behalf of the petitioners, is enough to prove the fact that gift was made by the donor in favour of the donees alter obtaining the permission from the Collector . Rapat Roznamcha Waqiati is a public document under Article 49 of the Qanun-eShahadat Order and the presumption of truth is attached to it, therefore, the objection of the learned counsel that there was no valid gift is not entertainable."
18. What is obvious is the fact that the execution of the mutation of tamleek coupled with unrebutted official documents discussed above clearly reflects that an implied offer of gift was made, was accepted and was acted upon and this has been correctly noted by the learned appellate court while setting aside the judgment and decree passed by the learned trial court. The learned appellate court' s observations about there being an adequate reason for executing the gift in question are indeed confidence-inspiring as is the discourse of the learned appellate court in its judgment about implied offer and implied acceptance. So too the observation of the learned appellate court about constructive possession and which is backed by the law laid down in "Mst. Natho v. Mst. Hadayat Begum and others" (PLD 1952 Lahore 545) in which it has been rightly observed that, "possession may be such possession as the subject of the gift is susceptible of and in any suitable case constructive possession may suffice to meet the requirements."
19. What is also true is that the petitioners were never able to cross the rubicon of establishing their case properly in view of the drawbacks and flaws discus sed in the preceding narrative. They were never able to shift the onus to the respondents. In this regard quite pertinent observations are recorded in "Muhammad Hanif v. Zardad Khan and others" (2021 YLR 1090 ) at paragraph No.10 and "Taj Muhammad Khan through L.Rs v. Mst. Munawar Jan and 2 others" (2009 CLC 1276 ) at paragraph No.5 and which are relied upon with advantage. In this view of the matter , since the petitioners did not file a suit during the life time of the donor and since the petitioners never tried to rebut official record relied upon by the respondents and since the petition ers were at daggers drawn with their paternal uncle who had a justifiable reason to deprive them of their inheritab le share and since none of the donees ever challenged the mutation, and since the petitioners could not establish either collusion or incapacity , the learned appellate court was quite right in rejecting the claim of the petitioners and in providing a bond of fate to the mutation of the Tamleek in question.
20. Furthermore, in "Syed Mohsin Raza Bukhari and others v. Syed Gulzar Hussain Kazmi and others" (PLD 2004 SC 520 ), it has been acknowledged at page-525 at paragraph No.8 as follows:- "8. We are not persuaded to agree with learned Advocate Supreme Court on behalf of appellants that there was no justification to make such gift by depriving the sons and unmarried daughter for the reason that under Islamic Law a preferential gift is not void and it is within the competency of the father to give preference to one heir. It may not be it accordance with equality but it is not prohibited and cannot be termed as void."
21. In the peculiar facts and circumstances of the case it would be appropriate to rely on and seek benefit from the judgment reported as "Mst. Meher Taja and 4 others v. Naseer Muhammad and 2 others" (2015 CLC 902), "it is also an admitted fact that a person having no male issue normally makes a gift in favour of his daughters just to save them from suffering at the hands of collaterals, particularly in respect of residential house, so that they may reside or visit the house of their parents with peace of mind without any interruption or resistance at the hands of other legal heirs. It is common phenomenon of this society that male legal heirs especially the collaterals normally treat the female with aggression and oppression. This normal practice in vogue in the society generally pricks the mind of father of the daughters and he tries to safeguard them from the high-handedness of their collaterals."
22. In "Ghulam Muhammad v. Mian Muhammad and another" (2007 SCMR 231), it has been held that, "a Muslim has unfettered power to give away his property to any one of his heirs to the exclusion of others and a gift cannot be invalidated because other heirs are deprived of their shares. " In the same judgment it has also been held and which is relevant in the context of the present case that, "revenue record being public documents ought to prevail unless rebutted."
23. The petitioners not having laid any challenge to the Rapat Roznamcha as also Record of Rights allowed the same to go unrebutted and which was quite damning in so far as their case is concerned. When the fact of non- impleadment of revenue officials is added to this it becomes clear that the petitione rs were never able to discharge the initial onus. The relationship between the petitioners and their real paternal uncle which was far from being hunky-dory and was rather acrimonious only accentuated and heightened the need for making the gift and the ingredients of which stood proved from the unrebutted revenue record, the mutation thereof and the fact that the other three sisters never objected and rather accepted the gift.
24. In "Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another" (1986 SCMR 1121), it has been held by the Hon'ble Supreme Court of Pakistan at paragraph No.6 as follows:- "There is nothing on the record, nor indeed it was anybody's case that the entries in the Roznamcha Waqiati, dated 23rd February , 1970, were forged or were manipulated. It is also admitted position that the donor was the father of the donees who were his minor sons. It is well-settled that gift under the Muslim law can be orally made and no writing is essential to the validity of the gift. Nor for that matter mutation of the names in the revenue record is a necessary requirement for giving effect to a gift under the Muslim law. Ordinarily under the Muslim law three requirements for a valid gift are, (i) a declaration of gift by the donor , (ii) acceptance of the gift, express or implied by or on behalf of the donee, and (iii) delivery of possession of the subject-matte r of the gift by the donor to the donee. However , no transfer of possession is required in the case of gift by a father to his minor child and the only requirement in such a case is the bone fide intention to make the gift. See Mir Haji Ali Ahmad Khan Talpur and others v. Government of Sind and others PLD 1976 Kar. 316. Having regard to these principles of Islamic law on the subject we are clearly of the view that the entries in the Roznamcha Waqiati recording the substance of the statement of the appellant is unequivocal evidence that the appellant had made valid gifts in favour of his two minor sons before he reported to the Patwari for the purpose of mutation."
25. Ensuring economic safety for his daughters seems not an option but a necessity for a father in a society such as ours which is ranked 153rd out of 156 countries on the gender parity index in Global Gender Gap Report 2021' published by the World Economic Forum (WEF). WEF used four sub-indexes to measure dimensions of gender parity i.e. economic participation and opportunity , educational attainment, political empowerment, and health and survival. Even India where pro-women amendment in inheritance laws (through Hindu Succession (Amendment)
Act 2005) caused an unfortunate hike in female infanticide managed to score better .
26. It would not come as unexpected if any father fears ostracization and marginalization of his daughters by their male relatives, especially in the absence of their father (or brothers), is more likely to come about (owing to the lack of participation of women in public life) if such male relatives are, in any way, linked with his daughters? ability to benefit from his assets.
27 Eleanor Roosevelt; chair of the UN Commission on Human Rights which drafted the United Nations Declaration of Human Rights, gave a speech at the United Nations on the 10th anniversary of UDHR (in 1958), widely given the title of Where Do Human Rights Begin?': "Where after all, do human rights begin? In small places, close to home-so close and so small that they cannot be seen on any map of the world . Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory , farm or office where he works. Such are the places every man, woman or child seeks justice, equal opportunity , equal dignity , without discrimination. Unless these rights have meaning there, they have little meaning anywhere."
28. Our society having generally failed in instilling a sense of security in women breeds an environment where women become more vulnerable to being maltreated and deprived of their rights by force or by deceit by their distant or immediate male relatives. The near failure of the State and society in providing a respectable and dignified public life for women leaves women at the mercy and altar of their male relatives. A society in which women are forced to ensure their own safety indubitably leads fathers to a desire to ensure as much as they can that their daughters are as less troubled as possible when they are not around to ensure their protection themselves.
29. Dismissed .