MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. The titled civil revision has been filed against judgment and decree dated 23.6.2021 passed by a learned Addl.
District Judge by virtue of which an appe al filed by respondent No.1 (now deceased) was accepted and the suit filed by her , which had been dismissed by the learned trial court, was decreed.
3. Brief facts of the case are that respondent No.1, real mother of the petitioner , filed a suit for declaration and cancellation of mutation of Tamleek bearing No.5781 dated 21.7.2008 against her real son claiming that the mutation in question was bogus and that she had not appeared before the Halqa Patwari/Revenue officials and had never affixed her thumb impression on the said mutation and that the petitioner had taken some other woman before the revenue officials for the purpose of sanctioning the mutation in question and even otherwise she had never parted with the property in question by way of a gift.
4. On the other hand, the petitioner appeared before the trial court and conte sted the suit by filing a written statement and controverted the stance of respondent by contending that the suit was malicious in so far as it had been filed on the asking of a son-in-law of respondent No.1 so as to blackmail the petitioner .
5. Learned trial court framed four issues and which are as follows:- "i). Whether mutation No.5781 dated 21.7.2008 is against law and facts and is based on fraud hence, liable to be cancelled?OPP ii). Whether proper court fee has been affixed?OPP iii). Whether the suit land was properly gifted in favour of defendant?OPD iv). Relief."
The learned trial court after recording evidence dismissed the suit filed by respondent No.1 vide judgment and decree dated 23.2.2015.
6. It is quite pertinent to mention here that the learned trial court dismissed the suit mainly on the ground that on 23.6.201 1 during cross examination of respondent No.1 (now deceased) she categorically stated that the petitioner produced some other woman before the revenue officials and offered to get verification of her thumb impression but later on took a nose-dive and resisted the same and the subsequent request of the petitioner for comparison of thumb impression of respondent No.1 was contested and hence turned down. The learned trial court also looked down upon the alleged instigation of a son-in-law of respondent No.1 in perpetuating the filing of the suit. However , the trial court did not properly attend to the pivotal question about whether there was a valid and proper gift or not.
7. Respondent No.1 (now deceased) and represented by some of her other legal heirs filed an appeal before the district court and which appeal was allowed vide judgment and decree dated 23.6.2021. The main reasons prevailing with the appellate court are that the petitioner before this Court being the donee was under a heavy legal obligation and onerous duty to furnish and establish the particulars and nuances of the gift before the trial court which the petitioner had failed to do inasmuch as no time, date and place of the transaction of gift were mentioned in the written statement nor were brought forth by way of oral evidence. The appellate court also observed that respondent No.1 at the time was an aged Parda Nasheen lady had no independent advice at the time of allegedly effectuating the disputed mutation and hence the burden to prove in this respect was that much more and the same had not been discharged.
8. I have heard the counsel for the parties and perused the record.
9. While the counsel for the petitioner has supported and based his arguments on the judgment and decree of the learned trial court, the counsel for respondent No.1 has obviously supported the judgment and decree of the learned appellate court.
10. Learned counsel for the petitioner submits that requirements of Section 42(7) of the Land Revenue Act, 1967 have been met conspicuously inasmuch as DW-3, Ghulam Abbas and DW-4, Muhammad Nawaz who are owners of land situated adjacent to the landed property in question identified the petitioner before the revenue officials.
Also adds that the aspect of the respondent not allowing a comparison of her thumb impression also leads to an adverse inference against her and that, therefore, the judgment of the appellate court needs to be set aside. Also states that another legal heir of respondent No.1 i.e. a sister of the petitioner has also sworn an affidavit in favour of the petitioner!
11. On the other hand, learned counsel for the respondents responds that the requirements of Section 42(7) of the Land Revenue Act, 1967 have not been actually met inasmuch as DW-3 and DW-4 who appeared as witnesses to prove the requirements of Section 42(7) of the Land Revenue Act, 1967 are merely chance witnesses who allegedly happened to be present before the revenue officials at the relevant time and that even otherwise they are not owners of land situated adjacent to the property in question because the land of DW-3 is located at least five miles apart from that of the property in question and the land owned by DW-4 is also situated miles away . Further submits that what is of the essence in the present matter is the fact that the oral gift was never proved and no offer or acceptance or for that matter delivery of possession was proved either and that, therefore, the edifice on the basis of which the subsequent Tamleek transaction rests does not exist. Learned counsel for the respondents adds that this amounts to creating a castle in thin air and without any foundation. Rounds of by submitting that no mileage can be drawn from the aspect of the respondent resisting a comparison of her thumb impression because even if such a thumb impression is assumed even then it is a stark fact that no independent advice was available to her and which in turn attracts the law laid down in "Muhammad Asharf Khan v. Khan Siddique and others"
(2010 SCMR 1 116) at paragraph No.7.
12. Heard. Record perused.
13. 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 the situation such as the present one where findings of the two courts below are at variance: "It is settled that in the event of conflict of judgments, findings of appellate court are to be prefe rred and respected unless it is shown from the record that such findings are not supported by evidence or that the conclusions drawn are against the material on record or that reasons recorded for reversal of judgment are arbitrary or perverse." Therefore, what needs to be seen is whether the judgment of the appellate court is in accord with law or perverse!
14. In "Muhammad Ali v. Sohawa (Deceased) through L.Rs. and others" (2019 CLC 626), this Court has held that in terms of Section 42 of the Land Revenue Act, 1967, a revenue official while attesting the mutation was bound to ensure the presence of persons whose rights were sought to be acquired by such mutation and that identification of such persons by two respectables of the area in issue was also required. On the face of it, the mutation in issue in the present matter was sanctioned in violation of Section 42(7) of the Land Revenue Act, 1967 since respondent No.1 was not identified by two persons whose lands are situated adjacent to the land in issue and who merely happened to be present before the revenue officials per chance. Also no evidence was led to indicate whether these two witnesses i.e. DW-3 and DW-4 were respectables of the area or for that matter that they were independent.
15. Likewise, in "Mohammad Hussain v. Allah Ditta" (2017 YLR 1249 ), this Court has held that where a party had made a statement on oath and allege d commission of fraud in attestation of mutation and denied outrightly the transaction reflected therein, the onus would shift upon the beneficiary to prove not only valid attestation but also the transaction in question . It was further held that a beneficiary was bound to produce witnesses to such transaction and even in case of death of any witness, any person familiar with the transaction could be produced before the Court.
16. In the present case, the petitioner has conspicuously failed to discharge this onus. Besides the fact that there are material discrepancies in the statements of witnesses of the disputed mutation, the transaction of gift has neither been sought to be proved nor any averments are contained in the written statement filed by the petitioner seeking to establish the factum of gift. It is trite that a fact which has not been agitated in a written statement cannot be brought in evidence. In "Faiz Ahmad v. Mst. Soni and 2 others" (2020 CLC 148), it has been held that the parties are bound by their pleadings and evidence produced beyond pleadings is not permissible under the law. A party has to plead facts and then prove the same through evidence since no one can be allowed to prove a case beyond what has originally been set up in the pleadings. It follows that evidence or arguments with regard to a plea not taken in the pleadings cannot be looked into and no one is allowed in judicial proceedings to adduce evidence in support of a contention not pleaded by him. Similar observations have been recorded in the cases reported as "Muhammad Wali Khan and another v. Gul Sarwar Khan and another" (PLD 2010 SC 965) and "Hyder Ali Bhimji v . WITH Additional District Judge, Karachi (South) and another" ( 2012 SCMR 254 ).
17. In the written statement filed by the petitioner there is no mention of the date, time or place where the offer of gift was made. Hence, the gift has not even been remotely proved. It was incumbent upon the petitioner to furnish proper particulars of the gift before the trial court which he abysmally failed to do. No time, date or place of the transaction of gift having been mentioned in the written statement, the law laid down by the Hon'ble Supreme Court of Pakistan in "Peer Baksh through L.Rs and others v. Mst. Khanzadi and others" (2016 SCMR 1417 ) is squarely attracted to the present case.
18. In "Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others" (2018 SCMR 30), it has been lucidly held at paragraph No.32 as follows: "However , the said respondent was still required to prove a valid gift of the land by his father , grandmother , uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased , it was absolutely necessary for the respondent No.1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh. DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him.
He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However , neither has the respondent No. 1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above."
19. In "Fareed and others v. Muhammad Tufail and another" (2018 SCMR 139), it has been held at paragraph No.2 as follows: "In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Ghulam 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 sufficien t to constitute a valid gift under the law ."
20. In "Allah Ditta and others v. Manak alias Muhammad Siddique and others" (2017 SCMR 402), it has been held at paragraph No.2 as follows: "In the instant case, the petitioners assert that a gift had been made by Abdul Haq deceased in their favour and subsequently the mutation was attested , but in the entire evidence led by them they have not been able to prove through positive evidence the day, venue, the persons in whose presence the alleged gift was made, the time thereof, the month and year and even the consideration. Simpliciter that a tehsildar who sanctioned the mutation appeared and deposed that the mutation was validly attested by itself would not serve the purpose of the petitioners who as the beneficiaries thereof had to prove the gift in unequivocal terms, particularly considering the fact that the revenue officer never stated that he knew Abdul Haq personally and that the gift for valid consideration was made in his presence; besides there are quite a few lapses committed by the revenue authorities in connection with the alleged sanction of the mutation, as has been highlighted in the impugned judgment which has made the mutation dubious and much credence cannot be given to his statement."
21. In "Arshad Khan v. Mst. Resham Jan and others" (2005 SCMR 1859 ) it has been held (and quite pertinently with reference to the facts of the present case ), as follows at paragraph No.5: "5. There is no cavil to the proposition that the presumption of truth is attached with the Revenue Record but this presumption is always rebuttable. This is settled law that the mutation itself does not confer or extinguish any right or title and if the mutation on the basis of which right in the property is claimed, is disputed, the onus of proving the correctness of mutation and genuineness of the transaction contained therein would be, on the party claiming right on the basis of such mutation. In the present case, the entries in the Revenue Record in respect of the suit-land were made in the name of petitioner on the basis of mutation of gift which was disputed by the respondents, therefore, without establishing the genuineness of the gift transaction, the entries in the Revenue Record would be of no legal consequence. The respondents in unequivocal terms, denied the existence of gift and clearly stated that neither they made gift of land of their share in favour of petitioner nor appeared before the Revenue Office r for the attestation of mutation. The stand of the petitioner , on the other hand, was that the respondents having appeared before the Revenue Officer in person, made statements in presence of witnesses and in support thereof, one witness namely Afridi Khan was produced who categorically stated that respondents were in veil and he identified them not by face but on the pointation of petitioner . The other witness cited in the mutation, was not produced in the Court. Be that as it may, in view of an admitted fact that respondents were Parda observing ladies, the stand of the petitioner , qua their identification before the Revenue Officer , would be falsified and as a resul t thereof, the very foundation of his case would be demolished. This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence. There can be no departure to the rule that if the good faith and genuineness of a transaction by virtue of which a right is created in the property , is disputed by its maker , the same in absence of proof of good faith and genuineness, would be voidable and in consequence thereto the entries on the basis of such transaction in the official record, would have no legal sanctity . The express or oral relinquishment of the right of a female heir in the inherited property in favour of a male heir, through gift or any other legal device, may in the normal circumstances, take effect but if the existence of such a transaction is denied and disputed by the said female heir, a presumption woul d be raised that the transaction was not genuine and the onus to prove that it was entered in good faith and was a genuine transaction, would be on the person who was claiming its genuineness and if such onus is not discharged satisfactorily , the document of relinquishment of rights of female heir in the property in favour of a male heir, would not ipso facto, confer title adverse to the interest of female heir. The mutations are entered and sanctioned to keep the Revenue Record in order which do not as such create right of title in the property , therefore, the entries in the Revenue Record based on a wrong mutation, would have no legal effect on the title of property ."
22. That likewise, in "Mst. Kulsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135), it he has been held as follows at paragraph No.9:- "This Court has quite recently held in case of Ghulam Haider 2003 SCMR 1829 that essentials of a valid gift were required to be proved independent of the deed even if it was registered, in case it is challenged on grounds of forgery etc. Keeping in view the principle so enunciated, we are clear in our mind that the defendants have not produced an iota of evidence to prove the original factum of gift; the proposal, the acceptance and the delivery of possession. We have already discussed that the possession under the gift has not been delivered at all. The gift can be declared void on this score alone as well."
23. In "Allah Wassaya v. Mst. Halima Mai and 12 others" (2016 MLD 1535 ), it has been held at paragraphs No.5 and 6 as follows: "5. The case of the petitioner is that he had neither made any declaration/offer to make a gift in favour of respondents/defendants No.1 and 2 nor he appeared before the concerned Patwari as well as the Revenue Office for the entry and attestation of disputed mutation and that he being illiterate old aged person had been deprived of his property by defendants Nos.1 and 2 while practicing fraud and misrepresentatio n. The plaintiff himself appeared as PW-1 and fully supported his stance. The defendants Nos.1 and 2 were beneficiaries. of the disputed gift mutation and heavy onus was upon their shoulders to prove the transaction of Tamleek which might have been settled at some prior point of time of attestation of disputed mutation. Out of the alleged donnees, only defendant No.1 submitted his contesting written statement and perusal of same reveals that he did not plead any date, time, place and the names of witnesses to explain that when, where and in whose presence the alleged offer to gift out the suit property had been made by the petitioner , which was accepted by them and followed by the delivery of possession of the suit property in lieu thereof. In the absence of giving details of such ingredients in the written statement, defendant No.1 remained fail from the very inception of the suit to prove the transaction of disputed gift.
6. By now, it is well settled principle that mutation per se is not a deed of title but merely indicative of some previous oral transaction between the parties and keeping in view said principle whenever any mutation is challenged, then burden heavily lies on the shoulders of beneficiary of the transaction to prove the mutation as well as original transaction which he was required to fall back upon."
24. In so far as the aspect of non-comparison of thumb impression of the respondent is concerned suffice it is to refer to paragraph No.7 in the judgment reported as "Muhammad Asharf Khan v. Khan Siddique and others"
(2010 SCMR 1 116), wherein it has been held as follows: "7. Admittedly , respondent / defendant Mst. Zarsheda is an illiterate lady and she had no independent advice, and if it is accepted that the alleged agreement of sale bears her thumb impression, even then she could not understand about the nature of the transaction and all the Courts have rightly non-suited the petitioner on this count."
In the matter before this Court the respondent was indeed an illiterate and Parda Nasheen lady besides being 80- years old at that point in time and had no independent advice available to her .
25. In the present matter , it is quite obvious that the petitioner failed to even remo tely establish the transaction of gift or for that matter the offer of gift or the aspect of acceptance or why the other heirs were being disinherited. It is also obvious that the petitioner could not and did not try to even remotely prove the gift in question which was absolutely necessary so as for the gift to compliment the mutation of Tamleek.
26. In a society such as ours, which does not instill a sense of security in women and where women are more vulnerable of being deprived of their rights by force or by deceit by their immediate relatives, the women are left at the mercy of their male relatives. In the case before this Court, the petitioner remained unsuccessful in discharging the burden of proof which was on him in his capacity as a beneficiary in proving a valid gift in his favour and hence the judgment passed by the appellate court should naturally be preferred over that of the trial court.
27. In this view of the matter , this civil revision calls for no interference and is hereby dismissed.