AHMAD NADEEM ARSHAD, J.--- Through this civil revision, the petitioner has assailed judgment and decree, dated 10.11.2018, passed by learned Addl. District Judge, Taunsa Sharif whereby the appeal of the respondents plaintif fs was accepted and judgment and decree, dated 11.06.20 4, passed by the learned Civil Judge 1st Class, Taunsa Sharif was set aside, as a result the suit instituted. by the respondents/plaintif fs seeking declaration and permanent injunction was decreed.
2. Brief facts of the case are that respondents/ plaintif fs instituted a suit for declaration and permanent injunction by seeking declaration that they are owners in possession of the suit property and the defendant has no concern with it, entry of record of rights and mutation No.5734 dated 16.10.1974 is against law, fact, result of fraud and misrepresentation and have no effect upon the rights of the plaintif fs. The suit property was originally belonging to their predecessor Nasrullah Khan. The contention of the plaintif fs in their suit was that both the parties are his legal heirs; that after his demise suit property was inherited to the plaintif fs as well as defendant according to their legal share in accordance with law; that the defendant through impugned gift mutation No.5734 dated 16.10,1974 fraudulently transferred the inherited property of the plantif fs in his favour; that the plaintif fs neither gifted the suit property to the defendant nor appeared before any Revenue Officer for recording of their statements for transfer of the suit property to the defendant, possession of the suit property is also with thew, therefore, the gift and all the proceedings regarding and impugned mutation are against law and facts and result of fraud and forgery and ineffective upon rights of the plaintif fs; that the plaintif fs are Parda Nasheen/Parda observing simple and village ladies and no independent advice was avaibal; that initially at the time of incorporation of mutation if was known as, sale and parties were written as vendors and vend'e bus subsequently after cutting it incorporated de words of donors and donee; that the defendant was asked time and again to cancel the impugned mutation but he refused to do so. The petitioner/defendant submit ted contested written statement and raise d preliminary as well as factual objection of law and facts regarding no cause of action, estopple, in-correct description of suit property non- affixation of requisite court fee and that plaintif fs are not in possession over the suit property and they never prayed for recovery of its possession, due to which the suit of the plaintif f is hit by Section 42 of. Specific Relief Act, 1877.
On factual side, after refuting all the contents, he stated that the plaintif fs are literate ladies and appeared before the Revenue Officer for recording their statements for the transfer of suit property in his favour and prayed for dismissal of the suit.
3. The learned trial Court keeping in view the divergent pleadings of the parties, framed following Issues:-=- i. Whether the transaction mentioned in the plaint is against the law and facts, result of fraud and are liable. to be cancelled? OPP ii. Whether . the plaintiff is entitled to get a decree for declaration as prayed for? OPP . iii. Whether the plaintiff is entitled to get a decree for permanent injunction as consequential relief as prayed for?
OPP.' iv. Whether the plaintiffs have no cause of action to file this suit and suit is liable to be dismissed? OPD. v. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD. vi. Whether the suit is not maintainable in its present form and the plaintiff has no cause of action to file the present suit? QPD. vii. Whether the suit is time barred OPD.
Relief
4. In order to prove their version, the respondents/plaintif fs produced /eenat Bihi (mother of respondents and petitioner/defendant), one of the plaintif fs as PW-1 as well as Asmat Ullah as PW-2. In addition to oral evidence, they tendered attested copy of impugned mutation No.5734 of Mouza Litru dated 16.10.1974 as Exh.P-1, copy of Parch( Khatooni as Exh.P-2, copy of record of rights for the year 2009- 10 as Exh.P-3 in documentary evidence. '
5. In rebuttal, the petitioner/defendant in 'addition to appearing himself as DW-1.and got examined Naveed Latif as DW-2 and Sagheer Khalid Khan as DW.3. In documentary evidence, he tender ed copy of impugned Mutation No.5734 dated 16.10.1974 as Exh.D-1, copy of Record of Rights for the year 1977/78 as Exh.D-2, copy of Record of Rights as Exh.D3, copy of Record of Rights for the year 2009-10 as Exh.D-4, copy of Khasra Girdawari from crop Rabi to Kharif 2013 as Exh.D-5, original metric certificate from the University of Quetta as. Exh.D-6, receipt of verification along with photo-state I.D. of Parveen Akhtar w/o Naseem Akhtar Khan as Mark-A.
6. The learned trial Court after hearing arguments of both the parties, dismissed the suit vide judgment and decree, dated 11.06.2014. Feeling aggrieved the respondents/plaintif fs preferred an appeal which was accepted by the learned Appellate Court vide judgment and decree. dated 10.11.2018, and set aside the. judgment and decree, dated 1 1.06.2014, as a result the suit instituted by the respondents/plaintif fs was decreed; hence this petition
7. Learned counsel for the petitioner/defe ndant states that impugned judgment and decreed dated 10.11.2018 is based on misapplication of law and mis-appreciation of facts; that the impugned judgment and decree is result of mis-reading and non-reading of evidence and the learned lower Appellate Court has not applied his independent judicious mind towards actual and real controversy of the case and failed to give any cogent and plausible reasoning and did not advert to the reasoning rendered by the learned trial Court; that the learned Appellate Court failed to consider the statement of PW-1 wherein she admitted that suit property was transferred through mutation in dispute on the basis of love; that the learned Appellate Court failed to consider that suit of the plaintif fs was time barred and in this regard issue No.7 was framed by the learned trial Court To fortify . his contentions, relies on the cases reported as "DAUD KHAN versus AURANGZEB AND OTHERS" (PLD 1968 Supreme Court 54), "ALI MUHAMAMD versus MUHAMMAD HAYAT AND OTHERS" (1982 SCMR 816), "BAHADUR KIMN versus Mst.
NIAMA T KHA TOON and another" (1987 SCMR 1492 ), "NOOR HUSSAIN and others versus Mst. HUSSAIN BIBI and others"( 2007 SCMR 378), "MUHAMMAD LATIF versus MUHAMMAD NAWAZ and another' (PLD 1960 (W.P) Lahore 130), "HAJ1 GHULAM QASIM versus WAPDA THROUGH ITS CHAIRMAN and 2 others"
(PLJ 1989 Lahore 408 Bahawalpur Bench); "PAKIST AN TOBACCO COMP ANY versus PAKIST AN CHEST FOUNDA TION etc." (PLJ 1998 Lahore 401 (DB), "LEVER BROTHERS PAKIS7AN LIMITED versus Nazi MUHAMMAD ATIQUF" ( 1992 CLC 1062 ).
8. Conversely , learned counsel for the respondents supported the impugned judgment and decree of learned Appellate Court by arguing that the learned Appellate Court passed the impugned judgment and decree strictly in accordance with law by applying correct proposition of law and keeping in view and appreciating the evidence available on the record; that the . burden of proving genuineness of mutation and transaction of gift was upon the petitioner/defendant being beneficiary but he remained fail to discharge this onus ; that the respondent/defendant did not prove essential ingredients of a valid gift; that the impugned judgment and decree has been passed strictly in accordance with law keeping in view the dictum laid down by the apex Court of the country; that civil revision is barred by law and while relying upon case titled "Mian GHULAM RASOOL BODLA versus DEPUTY COMMISSIONER, BAHA WALPUR and another" (1999 SCMR 1307 ), "ALLAH DINO and another versus MUHAMMAD SHAH and others" (2001 SCMR 286), "ARSHAD KHAN versus Mst. RESHA M JAN and others"
(2005 SCMR 1859 ), "MUHAMMAD ANUR through L. Rs. versus MUHAMAMD SHER and others" (2006 SCMR 185), "ABDUL REHMAN versus Mst. MAJEEDA BIBI alias Majeeda" (2017 SCMR. 1110), "PROVINCE OF PUNJAB and others versus GHULAM SHABBIR" (2004 YLR 10), "MUHAMMAD IQBAL versus Mst. BILQEES FAIZ and 2 others" (PLJ 2004 Lahore 205), "Syed MUHAMMAD ZUBAIR SHAMSHAD versus MUKHTIARKAR S'ALEIIP AT and 3 others" (2014 MLD 471), "ALLAH WASSA YA versus Mst, HALIMA. MAI and 12 others"
(2016 MLD .1535 ), "ISFIAAN HAIDER versus MUHAMMAD HUSSAIN and 2 others" (2017 CLC 352), "TAHIRA BIBI versus MUHAMMAD KHAN and others" (PLD 2018 Lahore 803) prayed for dismissal of the revision petition.
9. I have heard learned counsel for both the parties and perused the record minutely with their able assistance in addition to the case-law cited at the bar:
10. First of all, I would like to take up the objection of limitation. This civil revision was initially filed on 25.02.2019 against judgment and decree, dated 10.11.2018 passed by the learned lower appellate Court after the expiry of 107 days. The petitioner submitted copy form for obtaining the certified copies on 13.12.2018. Copy was prepared on 19.12.2018 but the petitioner collected it on 29.12.2018. The office of this Court raised 13 objections along with objection that the revision petition is barred by 10 days by pointing out that it was filed after 107 days of the passing of the impugned judgment and decree. On 10.03.2019, the office of this Court returned the file with a direction to remove those objections within of days . The petitioner re-submitted the file after removing the objections on 28.09.2019 by placing on record an application under section '5 of the Limitation Act, 1908 for extension of. time/condonation of delay . In his applicati on for condonation of delay , the petitioner took a ground that he remained seriously ill and doctor advised him for complete bed rest from 02.02.2019 to 24.02.2019 and on the very next day of his bed rest period, he filed the instant revision petition. In support of his version, he produced two receipts which suggested that doctor advised him bed rest w.e.f. 02.02.2019 to 13.02.2019 and 14.02.2019 to 24.02.2019. But these receipts are bereft of their dates of issuance. Firstly , the petitioner was supp osed to file the revision petition within a period of 90 days but the, same having been filed beyond the prescribed period of limitation was barred by the law of limitation. Secondly , the story narrated by the petitioner in his application for condonation of delay does not appeal to mind as the appeal was decided on 10.11.2018 and according to his own version, he fell ill on 02.02.2019, 'meaning thereby that he remained hale ,and hearty , for 83 days after the announcement of judgment and decree by the learned Appellate Court but he failed to file civil revision during the said period. The august Supreme Court. of Pakistan in the case reported as "PROVINCE OF PUNJAB. Through District Officer Revenue, Rawalpindi and others versus MUHAMAMD SAR WAR" (2014 SCMR 1358 ) while dealing with the fate of time barred revision petition has inter alia held as under:--- "The second proviso thereto in unambigu ous terms lays down the period of limitation for applying to the Court by mentioning that all other statutory provisions prescribing time period in which a matter is to brought before the Court the second proviso to section 115(1), C.P.C. to be applied with the same vigour . Thus, where an aggrieved party seeks redressal against the Judgement or order the revisional powers of the Court under , section 115, C.P.C. he has ninety days to make the application, failing which the application is liable to be dismissed:"
It is also relevant to mention that if Statute governing proceedings does not prescribe period of limitation then proceedings instituted there under would be governed by Limitation Act, 1908 but where law under which proceedings have been instituted prescribes period of limitation then benefit of section 5 of the said Act cannot be availed unless the same had been made applicable as per section 29(2) of the Limitation At, 1908. Sections 5 and 29 of the Limitation Act, 1908 reads as under:--- S.5: Extension of period in certain cases: Any appeal or application for a revision or a review of judgment or for, leave to appeal or any other application to which this section may be made applic able by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application such period "
29,Savings: *(1) Nothing in this.Act shall af fect section 25 of the Contract Act, 1872.
(2). Where any special or local law prescr ibes for any suit, appeal or application, a period of limitation different from the period prescribed thereto by the First Schedule, the provisions of Section 3 shall apply , as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- (a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply ."
(3): Nothing in this Act shall apply to suits under Divorce Act, 1869 (IV of 1869)
(4): Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easement Act, 1882, may before the time being extend."
Insofar as the case in hand is concerned, Section 5 of the Limitation Act, 1908 is not applicable in the light of Section 29(2) of said Act, as Section 115 of C.P.C. itself prescribes 90 days for filing a revision petition, therefore, provision of section 5 of the Limitation Act was not available for condonation of delay or extension of. time.
Reliance is placed upon "ALLAH DINO and another versus MUH AMMAD SHAH and others" (2001 SCMR 286) wherein it has inter alia been held as under:-- "-There is no cavil with the argument that if the Statute governing the proceedin gs does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a Whole. &it where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act."
In this regard reliance is also placed. upon "CITY DISTRICT GOVERNMENT , LAHORE through. District Coordination Officer Lahore Versus, Mian MUHAMMAD SAEED AMIN" (2006 SCMR 676), "Begum Syeda AZRA MASOOD versus Begum NOSHABA MOEEN and others" (2007 SCMR 914), "PROVINCE OF PUNJAB through. Collector and others versus MUHAMAMD FAROOQ and others" (PLD 2010 Supreme Court 582) and "HAFEEZ AHMAD and others versus CIVIL JUDGE, LAHORE and others" (PLD 2012 Supreme Court 400).
Therefore, the application filed by the petitioner under Section 5 of the Limitation Act, 1908 was not maintainable and is dismissed.
Thirdly; the office returned the file to the petitioner after raising certain objections on .10.03.2019 with a direction to remove the objections within a period of 07 days but again he failed to remove the objections within the prescribed period and re-submitted the file after laps of a considerable time on 28.09.2019. Rule 9 of High Court Rules and Orders Volume 5, Chapter 1 Part-A authorized the Deputy Registrar of High Court to return a revision petition for making deficiency therein, if it was not in consonance with Rule 6 or .7 of the said Rules. The deficiency was not corrected by the petitioner and revision petition was not re-filed within time given by Deputy Registrar . Rule 9-A of the said Rules postulate that a notice should be affixed upon notice board for such purpose and if within 07 days thereafter deficiency was not made good , the matter should be placed before a Judge of the High Court for an order on a date to be notified by fixing such, a petition in the motion cause list. For ready reference Rules 6,7,9 & 9- A of High Court Rules & Orders are reproduced as under:-- "6. A petition to the High Court to exercise the powers conferred by section 115 of Civil Procedure Code shall specify the particular ground on which the aid of the High Court is invoked.
(a): If the ground be that the court which decided the case exercised a jurisdiction not vested in it by law, the petition shall set out clearly the particular exercise of jurisdiction complained of
(b) If it be that the court which decided the case failed to exercise a jurisdiction so vested, the jurisdiction which ought in the petitioner's opinion, to have, and has not been exercised shall be clearly set out;
(c) If it be that the court acted in the exercise of its jurisdiction with material irregularities the particular irregularity or irregularity , complained of shall be similarly set out.
7,(i) Every such petition shall be' stamped as required by law and shall be accom panied by certified copies of the pleadings and the documents which are necessary to support the pleas taken and the relief sought in the petition, unless the Court on sufficient cause shown orders otherwise, as well as a copy of the decree or order in respect of which such application is made and by a copy of the judgment upon which such decree is found.
(h) In the case of petition for revision of the decree or order of an appellate court, a certified copy of the judgment or order of the first instance shall also be filed.
(iii) Every such petition shall be made within ninety days of the decision of the subordinate court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such petition within three months without calling fore the record of the subordinate court.
9. For the existing rule 9, the following rule shall be substituted:- POWER T O RETURN PETIT ON FOR AMENDMENT .
The Deputy Registrar is authorized to return for amendment, or making up the deficiency of filing the requisite documents within a time to be specified on the objection memo. Appendix 1 in an order to be recorded by him on the petition, any petition not drawn up in conformity with the foregoing directions.
9-A. A-list of petitions, appeals etc., ordered to be returned shall be notified on the Notice Board and petitions, appeals, etc., not received back within seven days of the publication of the list shall be placed before ' a Judge of the High, Court for orders on a date to be notified by including such petition in a motion cause list. It is made clear that any delay in placing such `petition before the Court or issuing the list shall not furnish any justification for non- receipt of the returned petition in time Nand non-compliance of the objection taken within time specified by Deputy Registrar (.Judicial)."
It is well established by now that in a case where certain objections are raised by the office it should be held to be time barred unless objections/deficiency , pointed out by the office are made good or removed within time specified by the office. If the objections are not removed within the given period and in the meanwhile the limitation expires, the petition would become barred by time In this regard, reliance can be placed on the case reported as "ASAD ALI and 9 others versus The BANK OF PUYNJAB and others" (PLD 2020 Supreme Court 736) relevant part whereof is reproduced as under:---
15. The said principle of law has repeated ly been laid down, followed, approved, affirmed and reiterated in a large number of judgments of this Court as well as the High Courts. Starting from the judgment of the Lahore High Court reported as Ghulam Hussain v. Bhadar (PLD 1954 Lahore 36') till judgment of this Court reported as Lahore Development Authority v. Muhammad hid (1997 SCMR 1224 ), there is consistency in the principle that f objections raised by the office are not removed during the period allowed by the office and meanwhile the limitation period expires, the petition would become barred by time. There are two subsequent judgments of this Court reported as Mst. Sabiran Bi v. Ahmad Khan (2000 SCMR 847) and Farman All V. Muhammad Ishaq (2013 SC 392) which are incorrectly understood to have decided that so long as the initial institution is within the limitation period, removal of objection raised by the office after expiry of the limitation period does not render the petition to be barred by time The said judgments have been rendered in a different set of fact and circumstances, do not lay down tie entire law on the subject and are distinguishable on, points of law as well as facts.
16. Be that as it may since he IDA case (ibid.,) was decided by three learned Judges, it has to be followed instead of the two subsequent judgments rendered by two learned Judges. In addition to the above, following judgments also hold that if objections raised by the office are not removed within the time specified by the office and in the meanwhile limitation for filing the appeal expires, the appeal would be rendered time barred.
17. In case in which certain objections are raised by the office which rendered the institution of the case in itself invalid or incompetent should be held to be time-barred unless the objections or deficiencies pointed out. by the office are met within the tune specified by the office in this regard which in turn should be within the limitation period prescribed by the law. It is trite law that what cannot be done directly can also not be allowed to be done indirectly what is filed deficiencies/objections pointed did by the office, it should be held to be hit by limitation if the objections/deficiencies are remedied beyond the period of limitation.
12. The limitation is not a mere technicality and once it expires, the right accrued in favour of the other side by operation of law cannot lightely be taken away . Reliance is placed on "ASAD ALI and 9 others versus The BANK OF PUNJAB and others" ( PLD 2020 SC 736 ) wherein it has been held as under:-- "It is settled law that limitation is not a mere technicality (or a hyper technicality as it had been termed by the Tribunal). Once limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away ."
13. It is well entrenched by now that delay defeats equity and the law favours the vigilant and not the indolent.
Learned counsel for the petitioner failed to satisfy this Court regarding the late filing of the revision petition. Though this revision petition could conveniently be dismissed being barred by the law of limitation, however , since valuable rights of the parties are involved, 1 propose to examine the merits of the case to satisfy myself about the correctness and legality of the impugned judgment and decree of the learned lower Appellate Court in the light of case reported as "HAFEEZ AHMAD and others versus CIVIL JUDGE, LAHORE and others" (PLD 2012 Supreme Court 400) wherein it has inter alia been held as under:-- "Now question arises whether suo motu jurisdiction under section 115 of the Code could be exercised by the High Court or the District Court in a case where a revision petition has been filed after the period of limitation prescribed therefore. The answer to this question depends on the discretion of the Court because exercise of revisional jurisdiction in any form is discretionary . Such Court may exercise suo motu jurisdiction if the conditions for its exercise are satisfied. It is never robbed of its suo motu jurisdiction simply because the petition invoking such jurisdiction is filed beyond the period prescribed therefor . Such petition, could be treated as an information even if it suffers from procedural lapses or loopholes. Revisional jurisdiction is preemine ntly corrective and supervisory , therefore, there is absolutely no harm if the Court seized of a revision petition, exercise its suo motu jurisdiction to correct the errors of the jurisdiction committed by a subordinate court. This is what can be gathered from the language used in Section 115 of the Code and this is what was intended by the legislature, legislating it. If this jurisdiction is allowed to go into the spira l of technicalities and fitters of limitation, the purpose behind conferring it on the Court shall not only be defeated but the words providing therefor , would be reduced to dead letters. It is too known to be reiterated that the proper place of procedure is to provide stepping stones and not stumbling blocks in the way of administration of justice: Since the proceedings before a revisional Court is a proceeding between the court and Court, for ensuring strict adherence to law and safe administration of justice, exercise of suo motu jurisdiction may not be conveniently avoided or overlooked altogether . The Court exercising such jurisdiction would fail in its duty if it finds an illegality or material irregularity in the judgment of a subordinate Court and yet dismisses it on technical grounds."
"14. Admittedly , plaintif f No.1 is mother of plaintif fs No.2 to 4 as well as defendan t. All of them are legal heirs of Nasrullah Khan and after his demise, his legacy devolved upon them. Suit property is also part of his legacy , which was inherited in the name of plaintif fs and thereafter transferred in the name of petitioner/defendant through oral gift mutation No.5734 dated 16.10.1974. Plaintif fs, who are mother and sisters' of petitioner/defendant, challenged the validity of that gift mutation. The said oral gift mutation of suit land is main controversy in this case regarding which the learned trial Court framed issue No.1 and placed its onus upon the plaintif fs.
15. To give any property to any person, mainly without any consideration, is due to love and affection of donor with donee. Hiba or gift as defined by D.F . Mullas's in Para No.138 of Muhammadan Law is as under:--- 138.Hiba or gift, --A hiba or gift is "a transfer of property , made immediately , and without any exchange," by one person to another , and accepted by or on behalf of the latter ."
From above definition hiba or gift means the transfer of property made by one person to another without consideration, accepted by or on behalf of the latter is a condition to be fulfilled in order to make a gift valid. The basic ingredients of gift defined in Para No.149 of. Muhammadan Law by D.F . Mulla's which are as under:-
149. The three essentials of a gift.-- It is essential to the validity of a gift that there should be (I) a declaration of gift by the donor , (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in S.150. If these conditions are complied with, the gift is complete.
In case of " Muhammad Ejaz v . Khalida Awan" ( 2010 SCMR 342 ), it has been defined in the following terms: - "6. Under the Mohammadan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:--
(a) a declaration of gift by the donor;
(b) Acceptance of gift by the donee; and
(c) Delivery of possession of corpus.
On the fulfilment of the above three ingred ients, a valid gift comes into existence. A valid gift can be effected orally , if the prerequisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registerable under the Registration Act, 1908."
16. In case of oral gift, the onus is always on the donee to prove through cogent and concrete evidence that the donor made gift to him voluntarily , without duress and with all senses; that he accepted the same, and that the possession was delivered to him towards completion of that transaction. If any of the ingredient/component is missing, the claim of the donor would be rejected outrightly . Reliance is placed upon "Muhammad Idrees versus Zeenat Bibi" (2005 SCMR 1690 ) wherein it has been held that the factum of gift had to be proved by the donee through cogent and concrete evidence. It was also held that the essential ingredients of a valid gift were (i) declaration of the gift, (ii) acceptance of the gift, and (iii) delivery of possession to the donee.
17. As, in this case, the defendant was donee of the gift and being beneficiary was under obligation to plead and prove firstly; oral transaction of gift -which might have affected prior to the day of attestation of mutation or at least on the day when it was entered by the concerned revenue official and to that effect, the basic three conditions "offer, acceptance and delivery of possess ion" must have been established through evidence. Secondly; it was also "Sine qua non" for the donee to prove that donors approached revenue officials for the entry and attestation of mutation in the assembly convened for this purpose and made their -submission to acknowledge the oral transaction of gift in presence of two respectable of the vicinity . Now, it is established principle of law that before proving any act, one should have to narrate its detail in his pleadings under mand ate of well recognized principle "secimidum allegata el probate". In this regard, when written statement was examined, I found that it is silent to the extent of essential details i.e. date, time, place and names of witnesses and did not disclose that when, where and before whom the donors had made declaration of gift which was accepted by him and in lieu thereof the possession changed hands. The apex Court of the country in the case of "MUHAMMAD SAR WAR v. MUMT AZ BIBI and others" (2020 SCMR 276) while dealing with the consequence of non-mentioning the date, time and place of gift inter alia ruled as under:-- At the very outset, we have noticed that the petitioner failed to mention the date, time and place of the alleged gift.
Further , he omitted to mention the names of witnesses in whose presence his fathe r allegedly gifted the property in his favour and disinherited his sisters (respondents). Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by-law . It is settled law that the onus to establish the factum and ingredients of the gift is on the beneficiary who claims such gift and which is denied or challenged by the other legal heirs."
It is also settled principle of law that when the donor deposed on oath that he/she did not appear before the revenue officer for attestation of mutation and gift was not made by him/her , onus would shift upon the beneficiary to prove attestation of mutation as well as transaction reflects therein. In "Rabnawaz v. Ghulam RasuP' (2014 SCMR 1181), it has been held that when a gift was challenged, the burden lay on the donee to prove that all the essentials of a valid gift has been fulfilled . In the said case the donor was very old, infirm and incapacitated and was living at the mercy of the donee, in the latter's house. The trial Court and the appellate Court had concurrently held that the gift was an outcome of undue influence. The Hon'ble Supreme Court agreed with the said findings, and also held that another reason militating against the validity of the gift was want of delivery of possession. In "Rashida Bibi v. Mukhtar Ahmad" (2008 SCMR 1384 = NLR 2008 Revenue 97), it was held that a very heavy burden lay on the donee to prove that a valid gift had been made in his favour . In the said case, the donors were Paradanasheen illiterate ladies. It was also held that mere admission of making thumb impression or appearing before the Sub-Registrar was not sufficient to infer that the donors had declared their intentions to transfer their share in the property in question. In "Aurangzeb v. Muhammad Jaffar" (2007 SCMR 236), it has been held that in a transaction of gift, heavy onus lies on the beneficiary to prove by convincing evidence which satisfies the judicial conscience of the Court that the transaction shown to be a gift was executed by the donor in favour of the donee.
18. In the light of above principles, record available on the file is examined. It appears from the perusal of written statement that petitioner/defendant failed to plead factum of gift with its ingredient s and that necessary particulars of date, time, place and donors offer of gift regarding the suit property , its acceptance and as a result of delivery of possession. None-availability of any of the said ingredients would vitiate the validity of gift transaction. Plaintif f No.1 is one of the donors, who is mother of rest of the, plaintif fs as well as defendant, appeared in the witness box as PW-1 and had corroborated her stance that she and her daughters never gifted the suit property to the donee/defendant and she did not put her thumb impression upon the suit mutation. She further categorically stated that she never offered hiba. She also explained that she is Parda observing illiterate, innocent and rustic lady. She further claimed That suit property is under their possession. In support of their 'stance, the plaintif fs produced PW-2 who also deposed in the same terms. In this way, the respondents/plaintif fs successfully discharged the initial onus and now being beneficiary of the gift, the petitioner was required to prove basic transaction of gift as well as execution of gift mutation through clear and convincing evidence. In support of his contention, the defendant/donor recorded his statement. The petitioner/defendant while appearing as DW-1 failed to give particular of gift i.e. "offer, acceptance and delivery of possession". The petitioner himself admitted that plaintif f No.1 is his mother and plaintif fs No.2 to 4 are his real sisters. Although he stated that all requirements of hiba had been fulfilled but he failed to give the details of alleged hiba by specifying date, time and place and necessary particulars of hiba such as offer, acceptance and delivery of possession. He further deposed that suit property is in his possession since 1974 after sanction of mutation. But he again failed to give details of his possession to the effect that when and how he got the possession and who were present at that time, whether any muta tion of change of possession or rappat was made in this regard or not. During cross-examination he admitted that his signature regarding hiba/tamleek upon mutation number 5734 is not available. In reply to a question he stated that he did not remember how many days, prior to the suit mutation, his mother and sisters offered for the transfer of land. He further said that he did not know where plaintif fs made such offer of Hiba/tamleek. He also deposed that disputed mutation was sanctioned in the year 1977 which is contrary to the record. He further deposed that he did not remember what he replied when the plaintif fs offered for the transfer of the suit land as he was studying at that time. Though, he produced Naveed Latif as DW-2 but his evidence based upon hearsay as while facing cross- examination he admitted that it is correct that hiba transaction was only hearsay . The mutation was not sanctioned in his presence and he did not know the contents of mutation. The exact deposition of witness is as under:-- The defendant also produced Sagheer Khalid Khan as DW-3. The said witness stated that he is son of Ghulam Farid Khan Patwari who entered the suit mutation. Ile further deposed that his father died in the year 1995. Ile identified the writing and signature of his father upon the impugned mutation. During cross-examination, he admitted that he is not a summoned witne ss and today he came to give evidence on the instructions of counsel for the defendant.. He further narrated that at the time of incorporation of the mutation, he was only 03 years old.
19. The petitioner/defendant failed to produce revenue officer, who attested/sanc tioned the mutation, concerned Patwari, who entered the mutation and the attesting witnesses of the mutation, who identified the donors. He also failed to produce any proof regarding their death as- no 'death certificate of these persons was brought on record.
Although, the defendant while recording his statement deposed that all of them had died but simple oral assertion is not enough to prove factum of their deaths and did not discharge the burden to locate and produce them. Article 80 of Qanoon-e-Shahadat Order , 1984, provides the procedure how to prove when no attesting witness is found. It is obligatory upon the petitioner to prove this fact that his witnesses had been died or cannot be traced out. Article 80 of Qanoon-e-Shahadat Order , '1984 is as under:--- "Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that witnesses have either died or cannot be found and that the document was executed by the person who purports to have done so."
In this regard the august Supreme Court of Pakistan held in case Sheikh Muhammad Muneer vs. Mt. Feezan"
(PLD 2021 Supreme Court 538) as under:-- The Article states that it must be proved that the witness had either died or could not be found Simple alleging that a witness cannot be found did not assuage the burden to locate and . produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence."
It was further held in "GHULAM SAR WAR (DECEASED) through L.Rs., and others versus. GHULAM S'AKINE" ( 2019 SCMR 567 ) as under:--- "Mere assertion that marginal witnesses of the mutations had died would not discharge the burden of a party . There is nothing to establish the death of said witnesses."
The petitioner failed to lead any evidence to establish death or disappearance of the said witnesses. The petitioner had a way to prove the factum of death by leading secondary evidence. In this way, best evidence was withheld without sliowing any justification. thus inference of Article 129(g) of Qanoon-e-S hahadat Order , 1984 has to be drawn against-him. Reliance in this regard can again be placed upon the case MUHAAMAD SAR WAR versus.
MUMT AZ BIB1 and others"( 2020 SCMR 276 ) wherein it was held as under:-- "It is also noticeable that the concerned Tehsildar . who had allegedly sanctioned the mutation namely Rehmai Ali and another witness of the mutation namely Anwar Hussain (Patidar) were material witnesses of the alleged gift maution. They were however not produce d 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 ." lie also remained failed to 'comply with the requirements of Article 17 & 79 of Qanoon-e-Shahadat Order , 1984.
20. The petitioner/defendant during the course of cross-examination admitted that his signature was not available upon the gift mutation. Ile also admitted this fact that at the time of incorporation of the mutation, his sister Parveen Akhtar was minor . In this regard the exact deposition is as under:---
21. From perusal of copy of mutation (Exh.Pl/Exh.D-1) it appears that signature s/thumb impression of donors, donee and identifiers Abdul Latif Lumberdar , (Mutant Samar Pattidar are not available on the mutation, which made this mutation, as well as presence of the said persons doubtful.
22. It also appeared from the report of Patwari, available at column No.15 of the mutation that this mutation was entered on the statement of Mst. Zeenat/plaintif f No.1, one of the donors, who while appearing as PW-1 categorically denied this fact. Section 42(1) of the Land Revenue At, 1967 provides that it is the duty of a person in whose favour land had been transferre d to report this fact to the concerned patwari. Section 42(1) of Land Revenue Act, 1967 is as under:-- 42(1) Any person acquiring by inheritan ce, purchase, mortgage, gift, or otherwi se, any right in an estate as a landowner , or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the patwari of the estate, who shall.
(a) record such report in the Roznamcha to be maintained in the prescribed manner ,
(b) furnish a copy of the report so recorded, free of cost, to the person making the report, and
(c) send a copy of the report within a week of its receipt by him, to the Union Committee, town committee or Union Council within which the estate is situated"
The Hon'ble Supreme Court of Pakistan in its recent judgment reported as "ATTA MUHAMMAD and others versus Mst. MUNIR SUL TAN (DECEASED) through her L.Rs and others" ( 2021 SCMR 73 ) held as under:-- "Section 42(1) of the Land Revenue Act, 1967 (The Act) requires the person in whose favour the land had been transferred to report the same to the revenue authorities which in the present case would have been the donees of the gift but they did not do so."
23. It is also evident from the column No.15 of the mutation that originally it was incorporated as mutation of sale but thereafter making some cutting and alteration, it was converted into a gift transaction. These cuttings and alterations are also available in column No.13 of the mutation. It is also evident from column No.15 of the disputed mutation that a note was written after the report of Patwari to the effect that vendors are selling their whole land.
The exact words are as under-- This note is still present and was not deleted or omitted by cutting. The petitioner recorded his statement as DW-1 and during cross-examination he has stated that her mother recorded statement regarding sale mutation, hereafter , he voluntarily said "actually it is sale". The exact deposition is as under: - In answer to a question, he stated that the words in column No.15 of the mutation No.5734 "on the statement of_Mst. Zeenat, one of the vendors", were correctly mentioned, thereafter , he voluntarily said that these words were cut down and the words "Saleem Khan vendee" were written and then again said that after cuttings, the word "vendee" was written as -donee". The exact deposition is as under:-- {{URDU TEXT}} In the mutation word "sale" entered wherein it was subsequently changed with the word `Iqbal" and signatures or thumb impressions of the transferors, who were Paradanasheen ladies, were not obtained thereon. Interpolations in entries in disputed mutation and replacing the word "hiba"with the word "sale" hence, these cuttings could not be deemed to be mere correction of mistake. For the correction of mistake, if present in the mutation, special procedure was prescribed in the Land Record Manual. The relevant portion of Land Record Manual is reproduced as under;-.-- "7.6.Correction of clerical or arithmetical mistake made in the mutations.- - Correction of clerical or arithmetical mistakes inadvertently made in the order passed on mutation;
(i) Section 166, of the West Pakistan Land Revenue Act, 1967, provides that clerical or arithmetical mistakes in any order made by any revenue officer , or error therein from any accidental slip or omission may, at any time, be corrected by such officer (which also includes the successor -in-office of the revenue officer).
(ii) No permission, nor proceedings for review under section 163 of the West Pakistan Land Revenue Act, will be necessary fin. the purpose of making the aforesaid alterations, and only revenue officer before whom the Mutations, in which such corrections are needed, are produced, will be at liberty to correct the mistakes provided that it does not affect the rights of the parties.
(iii) It will not be necessary to hear the parties concerned in connection with such corrections.
(iv) In making such corrections the original order should not be altered, but a separate note briefly describing the mistakes under correction, should be recorded in red ink, signed and dated by the revenue officer .
(under lining is for emphasis)
(2) Cot rection of entries in columns 8 to 12 of the mutation.- - (if The entries in columns 8 to 12 should correspond in every case within the order passed on the mutation. Where owing to a mistake or otherwise they do not correspond, they should be altered so as to bring them to correspond with that order .
(h) Any alterations required for the above said purpose should he made as far as possible at the time of passing the order , but if not then made such alterations; corrections, etc.; can be subsequently made at any time before the 'original copy of the Record-of- Rights/Pe riodical Record.. in which the respective mutations are incorporated, is sent to the district office for consignment under sub-rule (7) 31 of the W est Pakistan Revenue Rules, 1968.
(iii) All such alterations will be made in red ink and will be signed and dated by the officer making them .
(under lining is for emphasis)
Therefore, cutting which had been made on the mutation was sufficient to declare the gill null and void. Reliance is placed upon the case law "Mst. HAMEEDAN BIBI and another versus MUHAMMAD SI TARIF", (2017 YLR 399) wherein it was held as under: - "There are serious nature of cuttings on the alleged mutation but no explanation to this effect is available on the mutation or-in the record and further no application was filed by the respondent to sects the aforesaid cuttings. In fact, the cuttings' which had been made on the mutation and also admitted by the witnesses appeared on behalf of the. respondent are sufficient to declare the gift deed null and void and in effective qua the rights of the petitioners."
24, It is evident from column No.15 of the mutation that concerned Patwari made this report on 02.10.1974 on the alleged statement of plaintif f No.1 Mst. Zeenat Bibi, which on the same day prese nted before the revenue officer, but the revenue officer did not sanction the imitation on that day due to abse nce of verification report from Gardawar . Later on, this mutation was sanctioned on 16.10.1974. The orders of revenue officer dated 02.10.1974 and 16.10.1974 did not reflect the .fulfilment of basic ingredients of gift i.e. "offer, acceptance, and delivery of possession". The impugned mutation is silent regarding delivery of possession of the suit property .
25. The petitioner/donee failed to bring on record Rappat Roznamcha Waqiati regarding incorporation of the disputed mutation. The mutation is also silent regarding incorporation of Rappat Roinamcha Waqiati as no number and date of that Rappat was mentioned.In order to constitute a valid gift unde r law, there must be pivotal - requirement, which is the mark-able delivery of possession by the donor and taking of the possession by the donee. This requirement is so critical that gift is said to only take effect from the date on which the requisite possession' of the property is delivered to the donee; not from the date on which the declaration was actually made. Delivery of possession hence become concomitant of the gift and so, serious that without delivery of possession to the donee, the gift is held void even if it was made . through a regist ered document. In "Principles of Muhammadan Law", a famous book by D.F. Mulla, the principle of delivery of possession is described in Para No.150 and Para No.152 which read as follow:- Para No.150.; Delivery of possestion,-
(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively ," is necessary to complete a gift.
(2) Registration,- Registration of a deed of gift does not cure the want of delivery of possession.
(3) If it is proved by oral evidence that a gift was completed as required by law [section 149 and 1501 it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act, section 17(a).
(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor . But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a lather or guardian-section 156) was on the facts held to be insufficient to support a gift as against the heirs of the donor".
152: Delivery of possession of immovable proper07.- Where donor is in possession.-A gift .of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his gabds and 'chattels, and the done formally enters into possession.
(2) Where property is in the occupation of tenants.-A gift Of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the Revenue Register or the landlord's sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete."
The Hon'ble Supreme Court of Pakistan in its judgment "SHAMSHAD ALI SHAH and others versus Syed HASSAN SHAH and others" (PLD 1964 Supreme Court 143) held as under:-- "The rule of Mohammadan Law on the subject is perfectly clear . Under the Mohammadan Law the delivery of possession to the donee is a condition to the validity of the gift for, to use the language of Hedaya in Valli, Second Edition,page 482 "THE PROPHET HAS SAID, "A GIFT IS NOT V ALID WITHOUT SEIZIN,"
It is further stated at Page 482 of the same book- "Tender and acceptance are necessary , because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seizin is necessary in order to establish a right of property in the gift, because a right of property , according to our doctors, is -not establish in the thing given merely by means of the contract without seizin."
The, same moot point was also discussed in detail in "MUHAMMAD YAQOOB through Lega l Heirs versus FEROZE Khan and others" ( 2003 SCMR 41 ) wherein it was held as under:-- "The delivery of possession of land in question was sential ingredient to constitute a valid gift, is lacking in this case and thus gift without, possession being. ab initio void cannot be made to get the land in question mutated in favour of petitioner . In this regard we are fortified by the dictum laid down in the followings cases:--- Shamshad A. Shah v . Hassan Shah (PLD 1964 Supreme Court 143); Hedaya (V ol.Ill, Second Edition, page:482);
(iii) Amir Ali 's Muhammadan Law (V ol. I, Chap. V);
(iv) Baillie's Digest of Muhammadan Law (Part 2, Second Edition, pages 203, 204); (v) Ramchandra Jivaji Kanago and another v . Laxman Shrinivas Nair and another (AIR 1945 P C, 54);
(vi) Jamma-ush-Shittat;
(vii) Sharaya-ul-Islam;
(viii) Ghulam Hassan and others v . Sarfraz Khan and others (PLD 1956 SC (Pak)309);
(ix) Sadik Hussain Khan v . Hashim Ali Khan (LR 431A 212); and
(x) Bashir Ahmed v . Muhammad Rafiq ( 2002 SCMR 1291 ).
A similar proposition was also elaborated and discussed in case law "MUHAMMAD IDREES versus Mst. ZEEN AT Bibi" ( 2005 SCMR 1690 ).
In this case regarding the delivery of poss ession, the petitioner/defendant failed to produce any rappat roznamcha waqiati or mutation to the effect that possession has changed hands. Copy of khasra Girdwari, available on the file, as Exh.D-5 is regarding crop of Rabi .2012 to Khareef 2013, but admittedly the disputed mutation was sanctioned on 16.10.1974, but no documentary proof was placed on record regarding that period. The impugned mutation also did not show that the possession had been transferred. As discussed above delivery of possession is very important ingredient Of gift and the petitioner has to-prove a valid gift, it is necessa ry for him to prove the factum of delivery of possession through some cogent, reasonable and trust worthy evidence that the possession had changed hand and delivered to him in consequence of gift: But perusal of record reveals that the petitioner has badly failed to prove the same. This gift without possession being ab initio void cannot be made to get the land in question mutated in favour of the petitioner . Reliance in this regard can be placed upon "ATTA MUHAMMAD and others versus Mst. MUNIR SULTAN (DECEASED) through I.Rs and others" (2021 SCMR 73) wherein it was held as under:--- "The material particulars of the gift, including when and where the lands were gifted, accepted and possession of the lands delivered was not mentioned in the gift mutation, in the roznamcha waqiati (daily diary) register), in the written statement or any other documen ts. The burden to prove the gifts was on the petitioner who failed to discharge such burden."
27. Learned counsel for the petitioner , during the course of arguments much emphasised upon the admission of PW-I wherein she admitted thin suit property ,was gifted by her to Salem Akhtar being only son on the ground of love and affection. The exact deposition is as under-7 PW.I uttered these words on the suggestions of learned counsel for the defendant. This sentence cannot be considered in isolation of the whole deposition. The statement of this witness was when examined in the light of his whole deposition; it appears that she never admitted voluntarily that she gifted the suit property to her son. When this suggestion is considered in the light of admission made by petitioner himself as DW.1 to the effect that his mother is illiterate, Parda observing, simple lady and did not perform worldly matters herself, then this portion of admission loses its significance and it cannot be relied upon.
28. The respondents/plaintif fs specifically pleaded in their plaint that they are pgrda observing, Paradanasheen, simple, rustic ladies and have no independent advice at the relevant time of attestation of mutation of gift. The petitioner , in his written statement, while answering that para, made an evasive denial by simply writing "it is incorrect". The plaintif f No.1 while appearing as PW-.1 deposed that she is Parda observing, simple, village lady and no signatures of her well-wisher are available on the disputed mutation. The petitioner failed to cross examine PW.1 upon this portion of her statement. Petitioner/defendant, during the course of cross-examination as DW.1, admitted that his mother is illiterate, Parda observing simple lady and did not perform affairs of the day today independently . Although, the other respondents are educated ladies, got education up to the level of matric, but even then, benefit of Paradanasheen lady cannot be taken away from them. The respondents are folk, Pardanasheen; illiterate, advance age, simpleton village ladies and their valuable rights in the suit property were going to be transferred, and in that eventuality , extra- ordinary precautions and special care be taken to safe guard the rights of a weaker limb of the society . In furtherance of above, being beneficia ry of the mutation, the petitioner was bound to prove the gift transaction through trustworthy , believable, unimpeachable affirmative evidence but, here in this case, the petitioner failed to dislodge the said mandatory burden. It is also on the record that plaintif fs No.2 & 3 were married and had their independent families including their husbands as well as siblings. A prudent man cannot conceive that while ignoring their families why they were compelled to make a gift of their property to their brother . In case of gift, particularly , when donor is some illiterate and Pardan asheen lady, disputing the very genuineness of the gift, the Court has to look at the surrounding circumstances and to ascertain the true intent behind the gift. In this regard the august Supreme Court of Pakistan in case "BAJA through L.Rs., and others versus Mst. BAKHAN and others" ( 2015 SCMR 1704 ) held as under:-- "In the cases of gift, particularly , when the doner is some illiterate Pardanasheen lady, disputing the very genuineness of the gift on the allegation of fraud, for their satisfaction the Courts have to look into the surrounding circumstances to ascertain the true intent behind the gift so as to determine its validity, and to ensure that women are not deprived of their property though frivolous or fraudulent means by taking advantage of their illiteracy , weak social background and other compelling circumstances to which they may be easily exposed"
The august Supreme Court of Pakistan formulated the pre-dominant conditions regarding transactions with the Pardanasheen ladies in the judgment reported as "PHUL PEER SHAH versus HAFEEZ FATIMA" (2016 SCMR 1225 ) wherein it was held as under: - "In a case of such transaction with old, illiterate/rustic village Parda Nasheen' lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property , the following mandatory conditions are complied with the fulfilled through transparent manner and though evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows: -- (i) That the lady was fully cognizant and was aware of the nature of the transaction and its, probable consequences
(ii) That she was having independent advise from a reliable' source/person of trust to fully understand the nature of the transaction;
(iii) That witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;
(iv) That the sale consideration was duly paid and received by the lady in the same manner; and
(v) That the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be."
In case "GHULAM FARID and another versus SHER REHMAN though L.Rs., (2016 SCMR 862) it was held as under:-- "When any transaction was made by anyone where "Pardanasheen" lady's vital interest was involved then, the following conditions were to be invariable and essentially established through evidence: - ,(i) That transaction was free from any influence, misrepresentation or fraud.
(ii) That amount of consideration equally to the value of the property was indeed paid to the ladies;
(iii) That in the case of "Pardanasheen" rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating there from and;
(iv) That at the time of transaction, the ladies had access to independent advice of their near and dear ones, who had no hostile interest.
But in the instant case, nothing available on the record that respondents transferred the suit property with their free will and an independent advice was available to them.
29. Learned counsel appearing on behalf of the petitioner states that suit of the respondent was hopelessly time barred and the learned lower Appellate Court failed to consider this while passing the impugned judgment and decree. The petitioner/defendant raised preliminary objection to the effect that suit of the plaintif f was barred by time. In this regard, the learned trial Court framed issue No. 07 and onus to prove this was placed upon the defendant. The defendant while appearing as DW-1 failed to utter a single word in this respect that suit of the plaintif f was barred by time. The learned trial Court decided issue No.07 against the petitioner/defendant and the petitioner/defendant did not file any cross-objection or appeal regarding finding of the learned trial court upon issue No.07. In this scenario, the findings of learned trial Court that suit of the plaintif f was not barred by time attained finality .
Even otherwise, it is well settled principle of law that fraud vitiates even the most solemn transaction. Any transaction based on fraud would be void. Limitation does not run against void transaction. Mere efflux of time did not extinguish the right of any party . Notwithstanding the bar of limitation the matter can be considered on merit so as not to allow fraud to perpetuate. In this regard, I seek guideline ,from the cases of Honourable Supreme Court Of Pakistan reported as "Peer Bukhsh etc. versus Mst. Khanzadi, etc." (2016 SCMR 1417 ); Muhammad Iqbal vs. Mukhtar Ahmad" (2008 SCMR 855) "Mst. Raj Bibi etc. vs. Province of Punjab, etc." (2001 SCMR 1591 ) and -- Hakim Khan vs. Nazeer Ahmad Lughmani" ( 1992 SCMR 1832 )
In view of above settled principle of law , the objection of the petitioner/defendant is repelled.
30. Epitome of above discussion is that this Civil Revision is without any merits and same is, therefore, dismissed with no order as to -costs.