MUHAMMAD IJAZ KHAN, J. Through the instant petition, the petitioners have challenged the judgment/decree of the learned Additional District Judge/lzafi Zilla Qazi Matta, Swat dated 19.01.2022, who vide the same has dismissed the appeal of petitioners/defendants and that of judgment and decree of learned Civil Judge/Ilaqa Qazi-II Matta, Swat dated 05.03.2021, who vide the same had decreed the suit of respondents Nos.1 to 5/plaintiffs.
2. Precisely the facts of the case are that respondents Nos.1 to 5 (respondent No. 1 being the widow and respondents Nos.2 to 5 being the children of Muhammad Sherin deceased) brought a suit for a declaration to the effect that they being the legal heirs of deceased Muhammad Sherin are entitled to their respective shares in the property fully mentioned in the heading of the plaint. They have also challenged the gift mutation No. 819 attested on 24.10.1995 and Mutation No. 4593 attested on 12.11.2015 being the result of fraud and are thus ineffective upon the rights of respondents Nos. 1 to 5/plaintiffs
3. Petitioners/defendants Nos. 1 to 3 and 8 to 10 were summoned and they submitted their written statement, where their stance was that in-fact the predecessor-in-interest of the parties namely Muhammad Sherin in his lifetime has made the gift mutation No 819, attested on 24.10.1995 in favour of Mst. Gul Dahan (another widow of deceased Muhammad Sherin), Riaz Muhammad, Ayaz Muhammad, Fayaz Muhammad (petitioners Nos.1 to 3 and sons of Muhammad Sherin) and thus the suit property is not the, legacy of Muhammad Sherin, deceased. The controversies between the parties were reduced into as many as eight issues and the parties were directed to produce their respective evidence. In support of their plaint, respondent No. 1, then plaintiff No. 1 herself appeared as PW-1 and produced Shah Ahmad as PW-2, Azizullah as PW-3, Shah Waliullah as PW-4 and Rizwanullah as PW-5.
4. In rebuttal, petitioner No. 2/defendant No. 2 himself appeared - as DW-1, petitioner No. 3/ defendant No. 3 appeared as DW-2 and produced Khurshid Ali, the marginal witness of the gift mutation No. 819 attested on 24.10.1995 as DW-3, Mian Sher as DW-4 and Abdur Raziq as DW-5.
After recording of the evidence of both the parties, the learned trial Court vide impugned judgment and decree dated 05.03.2021 decreed the suit of the respondents Nos.1 to 5/plaintiffs to the extent of their shari shares and mutation No. 819 attested on 24.10.1995 was also ordered to be cancelled.
The petitioners/ defendants felt themselves aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of Additional District Judge/Izafi Zilla. Qazi Matta, Swat, however the same was also dismissed vide impugned judgment and decree dated 19.01.2022. Now the petitioners have challenged the aforesaid two judgments/decrees dated 05.03.2021 and 19.01.2022 through the instant civil revision.
5. Arguments of both the learned counsel for the parties were heard in detail and record perused with their able assistance.
6. There is no denial of the relationship between the parties being legal heirs of Muhammad Sherin (deceased) and as such the pedigree-table as mentioned/pleaded in para-1 of the plaint is admitted by both the parties, which shows that respondent No. 1/ plaintiff No. 1 is one of the three widow of the deceased Muhammad Sherin, whereas respondents Nos. 2 to 5 are his children.
7. In this case, the stance of the respondents Nos.1 to 5/plaintiffs is that the suit property is the legacy of Muhammad Sherin, whereas petitioners/defendants Nos.1 to 3 and 8 to 10 have taken the plea that in-fact the suit property was gifted to them by their predecessor-in-interest vide gift mutation No. 819 attested on 24.10.1995, therefore, petitioners/defendants, being beneficiaries of the aforesaid mutation were under heavy burden to prove the incident of gift as well as the execution of the gift mutation, as per the required standard of proof, however, the record would reveal that they could not prove the same as out of the two marginal witnesses of the gift mutation namely Anwar Khan Advocate and Khurshid Ali, only Khurshid Ali was produced as DW-3, however he too in the cross-examination has admitted that:- which shows that the impugned gift mutation is neither proved as per requirement of law as only one marginal witness of the same was produced nor the same was executed in the mode and manner as prescribed in Section 42 of The Land Revenue Act, 1967, therefore, no legal worth could be attached to the aforesaid mutation and as such the suit property is to be considered as the legacy of deceased Muhammad Sherin, as the aforesaid mutation could not be treated as a proved document in view of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984. In this regard, the judgment of the Hon'ble apex Court rendered in the case of Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others reported as 2016 SCMR 986 could be quoted as: "The attesting witnesses of all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however, only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that a document shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution."
8. Petitioners/defendants were also required under the law to establish the very incident of alleged "gift" made in their favour by their predecessor-in-interest namely Muhammad Sherin, by producing those persons in whose presence, the donor declared his intention to make the alleged gift, followed by its acceptance by the donee and of course delivery of possession, however, the written statement submitted by the petitioners/defendants and the statements of DWs produced by them would show that they have not uttered a single word regarding the same and thus the alleged gift could not be treated as valid one In this regard, wisdom can be drawn from the judgment of the Hon'ble apex Court given in the case of Muhammad Srawar v. Mumtaz Bibi and others reported as 2020 SCMR 276, where it was held:- "We have heard the learned counsel for the petitioner and examined the record with his assistance. 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 father 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."
Similarly, the Hon'ble apex Court in its judgment rendered in the case of Mst. Saadia v. Mst. Gul Bibi reported as 2016 SCMR 662, has also held:- "Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non- registration will not have much bearing as regards its authenticity or validity, but the other important thing, is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession".
In the case of Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others reported as 2016 SCMR 986, the Hon'ble Apex has also held:- "We now proceed to attend to the said document. The said document simply states that the said properties have been given by the deceased to his three sons. The said document was purportedly signed by the deceased in the presence of Laiber Khan, Muhammad Ameen Khan and Haji Kimyagar, however, only Laiber Khan was produced as a witness. Consequently, this document too fails to meet the test prescribed in Article 79 of the Qanun-e-Shahadat Order, 1984 and remained unproved. We may also observe that the said document cannot be categorized as a gift as the necessary ingredients of gift were not established, including the acceptance of the alleged gift of the said properties."
Similar view was again reiterated by the Hon'ble apex Court in the case of Peer Baksh through L.Rs and others v. Mst. Khanzadi and others reported as 2016 SCMR 1417, where it was held:- "Having heard the learned counsel for the parties and perused the record, we find that the concurrent findings given by the learned Courts below are based on the evidence on record and are in accordance with law. The petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad 'deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf. This is fatal to the petitioner's plea."
The Hon'ble apex Court has gone to the extent that even in case of a registered gift deed, the incident of gift in terms of date, day and time has to be established by the donee through independent, cogent, confidence inspiring, coherent and trustworthy evidence. In this regard, the judgment of the Hon'ble apex Court reported as 2018 SCMR 139 would be relevant, relevant para of which is reproduced below:- "The principal issue, whether the respondent-plaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned Courts below. In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Gludam Rasool (2003 SCMR 1829) that a donee claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a donee is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this Court reported as Barkal Ali v. Muhammad Ismail (2002 SCMR 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan, Advocate who identified Gomaan before the sub-Registrar was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents."
9. During the course of arguments. learned counsel for the petitioners was stressing hard that on the basis of gift mutation No. 819, they are the owners of the suit property, which stance of the petitioners is not legally correct as mutation by itself is neither a document of title nor the same create any right of ownership in favour of the transferee/beneficiary. In this regard, the judgment of the Hon'ble apex Court titled Mst. Kalsoom Begum v. Rizwan Shah and others reported as 2020 SCMR 2029 could be quoted, where it was held as under:- "It is by now well settled that a mutation by itself does not create or destroy an existing right; it is merely reflection of revenue record, authenticity validity whereof is to be essentially ascertained in the underlying transaction, a view held by this Court throughout in cases reported as Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), Saadat Pervaz Sayan v.
Chief Secretary, Government of Punjab, Lahore and 3 others (2003 PLC (C.S) 1277), Muhammad Munir v. Muhammad Saleem and others (2004 SCMR 1530), Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859), Mst. Janntan and others v. Mst. Taggi through LRs and others (PLD 2006 SC 322), Muhammad Ishaq v. Muhammad Shafiq and 9 others (2007 SCMR 1773), Haji Muhammad Anwar v. Muhammad Ahmed and others (2007 SCMR 1961), Abdul Rasheed through LRs and others v. Manzoor Ahmad and others (PLD 2007 SC 287), Mst. Suban v. Allah Ditta and others (2007 SCMR 635) and Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 SC 338)."
10. It is also a settled law that if any mutation is entered in violation of Shariah law, then it will be of no legal effect and the beneficiary of such mutation would not be entitled for any benefit from it, as was also held by the Hon'ble apex Court in the case of Shabla and others v. Ms. Jahan Afroz Khilat and others reported as 2020 SCMR 352:- "It is so ordained in Sura Al-Nina (4/10), reproduced below: Given the preponderance of conferment, such a right, rooted. into Personal Law, has to be jealously guided, therefore, a heavy onus is cast upon the claimant to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions, by those placed qua her in advantageous positions."
11. Another aspect of this case is that the petitioners have challenged the concurrent findings of the two Courts below through the instant revision, however, this Court in revisional jurisdiction can only interfere in the concurrent findings recorded by the two Courts below if the same suffer from any misreading or non-reading of evidence or misapplication of law. Learned counsel for the petitioners miserably failed to bring his case within the ambit of aforesaid domain of this Court to interfere in the concurrent findings of the two Courts below.
12. In light of what has been discussed above, the instant civil revision is devoid of any merit, hence the same is accordingly dismissed.