ABDUL HAMEED BALOCH, J.---The petitioner/defendant No. 1 assailed judgment and decree dated 27th May, 2014 (impugned judgment and decree) passed by learned Additional District Judge-IV, Quetta, (appellate court), whereby the appeal filed by the petitioner/defendant No. I was dismissed and the judgment and decree dated 5th November, 2013 of learned Civil Judge-VIII, Quetta was upheld.
2. Concise facts of the case are that respondents Nos. 1 and 2/plaintiffs filed a suit for declaration, permanent injunction, partition, cancellation and rectification of mutation entries with consequential relief against the petitioner/ defendant No. 1 and respondents Nos. 3 and 4/ defendants Nos. 2 and 3 before learned Civil Judge-IV, Quetta with the following prayer: a. To declare that the plaintiff No. 2 is legal hair of the late Sahibzada Abdul Rashid and she is entitled to receive her sharai and legal share, left by her predecessor in interest namely Sahibzada Abdul Rashid from the property in dispute; b. To declare that the act of late Sahibzada Abdul Shakoor was the out come of a fraud and misrepresentation and the share of plaintiff No. 2 was illegal and unlawful mutated with the connivance of revenue officials by way of making forged document and the same be declared as void abnitio (-); c. That the mutations executed in lieu of Fatwa on the name of legal heirs of late Sahibzada Abdul Shakoor may kindly be cancelled; d. After declaring so, the share as inherited by plaintiff No. 2 from the total property left by the predecessor in interest namely Sahibzada Abdul Rashid measuring 24 rod and 28 pole be partitioned and separated from the property in disputed (-) and the same may kindly be rectified and mutated in the name of plaintiff No. 2 and after that the rest of the property left in the property in dispute would further be distributed among the legal heirs of late Sahibzada Abdul Shakoor along with the distribution of the water of the tube well as well; e. That the defendants may be restrained from changing, alienating, selling and developing third party interest in the property in dispute till the disposal of the main suit; f. That by way of granting permanent injunction, the defendants may also be permanently restrained from interfering and encroaching the property in dispute to the share and possession of the plaintiffs; g. That any other relief under the circumstances, which this Hon'ble court may deem fit and proper, may also be awarded in favour of plaintiffs; h. That the cost of the suit may also be awarded in favour of plaintiffs."
3. The petitioner/ defendant No. 1 contested the suit on legal as well. as factual grounds by filing written statement and prayed for dismissal of the suit.
4. Out of the pleadings of the parties the learned trial court framed following issues on 29th October, 2013: i. Whether the suit of the plaintiff is time barred under the Limitation Act.? ii. Whether the suit of the plaintiff is not maintainable in view of non-joinder and mis-joinder of necessary parties as not impleading the legal heirs of the predecessor in interest Abdul Rashid? iii. Whether the plaintiff No. 2 gifted out the property mutation. No. 145 measuring 24 rod, 28 pole to her brother late Abdul Shakoor? iv. Whether the plaintiffs are entitled for the relief claimed for? v. Relief?
5. The Respondents Nos. 1 and 2 plaintiffs produced oral as well as transfer/mutation through representative of concerned department and got recorded the statement of their attorney. In rebuttal petitioner/ defendant No. 1 produced witnesses and got recorded the statement of attorney. On conclusion the learned trial court i.e. Civil Judge-VIII, Quetta vide judgment and decree dated 5th November, 2013 decreed the suit. The relevant para of the judgment reads as under: "30. Since all issues stood resolved in affirmative in favour of the plaintiff No. 2 and negative against the defendant, she is entitled for the relief claims for declaration is hereby made that the gift deed prepared by the late Abdul Shakoor for the property mutation No. 145 comprising upon 24 Rod, 28 Pole is based upon fraud and misrepresentation having no legal implication stands to be cancelled.
32 (-). The defendant No. 3/ Tehsildar revenue officer is directed to restore mutation No. 145 in favor of the plaintiff No. 2 Mst. Sultana Bibi in its previous status and further to mutate the same in to the name of her in the revenue record the property comprising upon 24 Rod, 28 Pole as inherited her from predecessor-in-interest Abdul Rashid, it is further directed to partition the landed property of late Abdul Shakoor and the legal share of plaintiff No. 2 be separated to the extent of her share in accordance with law."
6. The petitioner/defendant No. 1 being dissatisfied from the judgment and decree of the trial court preferred appeal before appellate court which was dismissed vide judgment and decree dated 27th May, 2014, hence the petitioner/ defendant No. 1 filed instant revision petition.
7. The instant petition was filed on 7th July, 2014. The learned counsel sought adjournment on different dates. On 2nd May, 2016 the petition was dismissed in default and for non prosecution. The petitioner filed C.M.A. No. 731 of 2016 for restoration of petition. This court vide order dated 29th July, 2016 recalled order dated 2nd May, 2016 and petition was restored for Kacha Peshi. The learned counsel requested for adjournment on two consecutive dates and remained absent for two dates.
The petition was admitted for regular hearing on 14th December, 2017. The counsel for the petitioner remained absent for three dates. The counsel for the petitioner remained absent on 28.2.2020, 18.6.2020, 11.8.2020, 28.9.2020, 13.11.2020, 30.11.2020 and 11.12.2020. The counsel for the respondent also remained absent almost on the above refereed dates. Despite service neither the counsel for the petitioner nor respondent were present. Since the petition pertains to year 2014, it seems that the parties lost their interest in the petition; therefore, I have left no other option but to peruse the record and decide the instant petition on the basis of available record.
8. Perused the record. The record transpires that the respondents Nos. 1 and 2 plaintiffs filed suit alleging therein that the predecessor-in-interest of parties namely Abdul Rashid contracted three marriages, two wives died in his life time while the third one was- expired after the death of Abdul Rashid. The predecessor in interest of parties Abdul Rashid left agricultural land. The inherited estate of Abdul Rashid was partitioned/distributed among his legal heirs, three sons and three daughters. The plaintiff No. 2 got her share from the, inherited estate of her predecessor vide mutation No. 145 admeasuring 24 rods 28 poles. " The inherited estate of her deceased father was transferred in the name of legal heirs produced before the trial court as EX. D/3. The brother of plaintiff No. 2 Abdul Shakoor transferred her share in his name on 4th April, 1972 through gift. The transfer/mutation produced as Ex: P/4. The plaintiff denied gift stating that she never went to revenue office for transfer of her share in the name of Abdul Shakoor. The plaintiff alleged that she came to know in respect of fraudulent transfer after demise of Abdul Shakoor. Admittedly the plaintiffs are illiterate, and Parda observing ladies. When a person alleged that the illiterate lady had gifted the properties the burden of proof lies on beneficiary of gift deed. The petitioner/'defendant No. 1 in written statement alleged that the defendant No. 2 had gifted the property to Abdul Shakoor, the burden of proof lies on the beneficiary to prove the factum of valid gift through document as well as evidence.
9. DW-1 in deposition admitted that the inherited estate of late Abdul Rashid was transferred to the names of legal heirs in the revenue record. Though his mother and her sister gifted their shares to brother Abdul Rahim, Abdul Shakoor and Abdul Ghafoor and possession was also handed over to them. The witness admitted that Abdul Shakoor was issueless. The witness in cross-examination stated that he has no knowledge that the alleged gift deed is forged one. The witness admitted that that defendant No. 2 had not gone to Tehsil office. DW-4 stated that he has no knowledge where the gift deed was prepared DW-5 admitted that plaintiff No. 2 was never visited Tehsil Office.
DW-7 Muhammad Amin Patwari produced transfer/mutation No. 144 as Ex: D/1, transfer/ mutation No. 145 Ex: D/2. The witness stated that CNIC number of plaintiff No. 2 is not mentioned in the transfer/mutation The witness denied the suggestion that the plaintiff No. 2 had not visited Tehsil Office and had not gifted the property to Abdul Shakoor.
10. The record reveals that the witnesses of the defendant No. 1 admitted that Abdul Shakoor dies issueless. The plaintiff No. 2 has 5/6 children. None of the witnesses of defendant stated the date, D year of gift deed, where the gift deed was prepared and in whose presence the possession was handed over to Abdul Shakoor. The record reveals that the inherited share of predecessor of parties was transferred in the name of shareholders in the record of rights according to their shares in 1972. The alleged done remained issueless and adopted two daughters and a son of plaintiff No. 2. Their relation was cordial. The son of plaintiff No.2 namely Sad Muhammad had looked after the property of Abdul Shakoor. Abdul Shakoor died in 2009. After demise of Abdul Shakoor the plaintiff got knowledge of alleged gift transfer. It could not be believable that real mother could deprive her sons and daughter from her properties and gift to brother who was issueless. It appears from the record that the relation between plaintiff No. 2 and Abdul Shakoor was cordial. He adopted the son and two daughters. It is quite amazing to assume that a sister having children gifted her property to issueless bother. The plea of defendant is not confidence inspiring, unnatural and cannot be accepted a truthful story. Reliance is placed on case Allah Dita v. Manak alias Muhammad Siddique 2017 SCMR 402, wherein it was held: "2. Heard. We find that the instant case is founded upon misreading and non-reading of the evidence on the record which lapses have been cured by the learned High Court. In this context, it may be mentioned the relationship inter se the alleged donor and the petitioners is of uncle and nephew(s). The consideration for the gift as alleged by the respondent, that he has been looking after the alleged donor has not been proved on the record. It seems unnatural that a person could deprive his own children and dole out the property to others, may be nephews. The alleged donor had his own children; besides the mutation of transfer of immovable property is only a manifestation of the oral transaction and it does not carry any presumption of correctness, particularly in the circumstances when it has been assailed by the person affected by the same.
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."
11. The scanning of statement of defendants' witnesses divulges that they are not found consistent with regard of signing of gift mutation, time of gift. None of the witnesses were examined who were witnesses of transfer/mutation. The essential features of gift are declaration, acceptance and delivery of possession which was missing. Such transaction cannot be considered a valid gift. None of the defendant's witnesses stated in their deposition whether the gift was written or oral. From the statement of defendant's witnesses it is cleared that the male legal heir of late Abdul Rashid deprived their sisters from the legacy of their predecessor. There is no evidence available on the record to prove for what reason mother can deprive her children. There is no cavil with the proposition that the donor is free to gift out his/her property of his/her choice but legal heirs are required to be deprived them. It is imperative upon the beneficiary to bring on record the circumstances for depriving them. The done should prove the gift deed/mutation independently.
Reliance is placed on the case of Naveed Akram v. Muhammad Anwar 2019 SCMR 1095, wherein it was held: "7. We find that petitioner No.1 who had signed the agreement did not dispute his signatures.
Further absence of Muhammad Akram from the witness box was fatal to the petitioners' case. In terms of Article 129 of the Qanun-e-Shahadat Order, 1984 there was a strong presumption against Muhammad Akram for withholding the best evidence. The agreement to sell stood established in accordance with law through overwhelming evidence. The testimony of the witnesses produced by the Respondent withstood the test of cross-examination and was found to be credible. Further, transfer of the property by way of gift in favour of his sons by Muhammad Akram was obviously a device to deprive the Respondent of his right that has accrued to him by reason of execution of the agreement to sell and payment of earnest money. Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further, no witness in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is Insufficient to establish a valid gift which could have the effect of defeating the rights of the Respondent. Even otherwise, the lower fora correctly found that the mutations were undertaken under questionable circumstances which also involved tampering and antedating for which no plausible or legally sustainable explanation was forth- coming. Even otherwise, the gift and the results mutation need to be independently proved. In the instant case, there was complete failure on the part of the petitioners to prove the oral gift through production of credible witnesses. "
12. The burden of proof lies on beneficiary of gift under Articles 117 and 118 of the Qanun-e-Shahadat Order, 1984 (Order, 1984), but the petitioner/defendant No. 1 failed to discharge the burden.
Reference is made to the case Wall Muhammad Khan v. Mst. Amina 2018 SCM R 2080. It was held: "11. That since an elderly parda observing illiterate lady intended to divest her entire property in favour of only two of her children, every precaution should have been taken to ensure that the parda clad person who was produced before the revenue officer was actually Mst. Pari.
Subsection (7) of section 42 of the Land Revenue Act, 1967 requires that the person from whom the property is, being acquired is to be identified by, "two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer". This was not done. The register of mutations was not produced, nor verified copies therefrom exhibited. Only Muhammad Zaman, who was an interested witness, identified Mst. Pari and also testified to the making of the said gift. The procedure stipulated in the law was not followed, let alone the extra circumspection. required in dealing with a parda observing lady, and one who was also illiterate and quite old.
13. We may observe that this case is yet another sad example of brothers depriving their sisters of their inheritance by contrived means. There was no reason why a mother would want to exclude her daughters of their inheritance, and all the more so, when the share of each son was twice that of each daughter. The courts exercise extreme, caution when faced with 'gifts' which deprive the female members of a family. This Court has held, that, gifts, generally made to deprive females in the family from, the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners - and no course of inheritance is bypassed. The appellants had completely failed to establish the gift in their favour. It was not established that the person presented before the revenue officer, whose statement he recorded, was actually Mst. Pari. Only one person (Muhammad Zaman) who was not an immediate family member, identified the lady in parda and this person was an interested person. It was not established that Mst. Pari understood, what she was doing and the consequences of her actions nor that she did not do so under compulsion, undue influence or advantage. The brothers deprived their sisters of their share in the property left by their mother and the brothers perpetuated this injustice for about two decades which was finally corrected by the learned Judge of the High Court whose judgment we affirm. The result therefore is that we dismiss this appeal with costs throughout."
13. The object of revision is to rectify the error committed by the courts below in exercise of jurisdiction. This court cannot interfere in concurrent findings of courts below unless the judgments/ orders of the courts below are found patently illegal, and against the law. The fact that the different view of evidence could be taken by the courts below was no ground for setting aside of concurrent findings. The scope of revision is narrow and restrict only to the extent of correcting illegality, irregularity of evidence of the courts below. The Honorable Supreme Court of Pakistan in Mst. Kulsoom Bibi's case 2005 SCMR 135 held: "----While exercising revisional jurisdiction, the High Court should satisfy itself upon three matters: firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, that whether the lower Court acted illegally or with material irregularity resulting into miscarriage of Justice.----"
In view of what has been stated above the petitioner/ defendant No. 1 has failed to point out any illegality, irregularity, misreading or non reading of evidence in the impugned judgments and decrees of the courts below, requiring interference by this court in its revisional jurisdiction, as such the instant revision petition is dismissed. The parties are left to bear their own costs.