ABDUL HAMEED BALOCH J. The petitioners/plaintiffs questioned judgments and decrees dated 30th June, 2016 and 30th November, 2019 (impugned judgments. and decrees) passed by Civil Judge- VIII, Quetta and Additional District Judge, Kuchlak (trial and appellate court), whereby the suit of the petitioners/plaintiffs was dismissed and the appeal filed was also dismissed.
2. Precise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, cancellation of mutation entry No. 128 and permanent injunction against the respondents/ defendants in the court of Civil Judge-VIII, Quetta, contending therein that the father of the petitioners/plaintiffs purchased property from Muhammad Hassan situated at Mohal Karez Samli Mouza Samli, Tappa Kuchlak, Tehsil and District Quetta vide mutation No. 126 dated 20th April, 1974 (description whereof mentioned in para-1 of the plaint). The father of the petitioners/plaintiffs expired in the year 1990 leaving behind petitioners/ plaintiffs as his legal heirs. The petitioners/plaintiffs transferred inherited properties of Quetta City in their names. In February, 2015 the petitioners/ plaintiffs approached Tehsil office for mutating the two properties of Kuchlak in their names where it transpired that the property purchased by their father from Muhammad Hassan had fraudulently been transferred in the name of respondent/ defendant No. 1.
3. The respondents/ defendant No. 1 controverted the contention of the petitioner/plaintiffs on legal as well as factual grounds by filing written statement. The trial court. framed issues on which the parties to the lis produced pro and contra evidence. On conclusion the trial court vide judgment and decree dated 30th June, 2016 dismissed the suit. Being aggrieved the petitioners/ plaintiffs filed appeal before Additional District Judge, Kuchlak, who vide judgment and decree dated 30th November, 2019 dismissed the appeal, hence this revision petition.
4. The record transpires that the instant petition was admitted for regular hearing on 15th June, 2020, whereafter, on 28.8.2020, 4.9.2020, 25.9.2020, 16.10.2020, 6.11.2020, 5.4.2021, 16.4.2021 and 15.4.2021 the counsel for the petitioners/ plaintiffs as well as petitioners/ plaintiffs remained absent, therefore, I have left with no other option but to hear the learned counsel for respondent/defendant No. 1 and to decide the instant revision petition on the basis of available record.
5. Heard and perused the record. The record transpires that the petitioners/ plaintiffs contended that their father in the year 1974 purchased property vide mutation No. 124 khewat No. 16-Min, Khatooni No.29 from one Muhammad Hassan and transferred the same in his name in the revenue record. The respondent/ defendant No. 1 fraudulently transferred the purchased property of their father in his name in the revenue record. The record transpires that in the year 1974 the father of the petitioners/plaintiffs transferred the land vide mutation No. 127 Khewat No. 16-Min Khatooni No. 29 in the name of respondent/defendant No. 1 through oral gift. The mutation/transfer beats signature of father of the petitioners/plaintiffs. The respondent/ defendant No.1 has not denied the factum of gift and stated that after demise of his father the father of the petitioners/plaintiffs looked after/ up brought him (respondent/ defendant No. 1) and lived in his house being orphaned nephew. The father of the petitioners/ plaintiffs gifted the property to him and transferred the same in his name in the revenue record. The respondent/ defendant No. 1 has not denied the fact that the time of gift the respondents/ defendant No. I was minor. The petitioners/ plaintiffs alleged that the gift mutation had been obtained by fraud. It is settled principle of law that who alleged something must prove the same through reliable, confidence inspiring and trustworthy evidence. Mere allegation of fraud without proof cannot absolve him/them from proving the allegation of fraud.
Though the fraud vitiates solemn proceeding but the party alleged fraud should prove the factum of fraud. None of the witnesses of the petitioners/ plaintiffs stated how and when the fraud was committed by the respondent/ defendant No. 1. The mutation entry effected in the name of respondent/ defendant No. 1 in the year 1974. The witnesses examined by the petitioners/ plaintiffs are less than fifty (50) years age meaning thereby that the gift had been effected either prior to their birth or in their childhood, as such fraud could not be proved. Under the Islamic law the gift would not be invalid in favour of minor if physical possession had not been given. Reliance is placed on the case Shamsher v. Yar Muhammad Khan 2001 CLC 1007 [Peshawar], wherein it was held: "11. So far as the argument of the learned counsel for the petitioner that possession was not handed over to the donees, hence the gift was not complete, is concerned, this argument has no force. The perusal of gift-deed, dated 9-5-1991 shows that Sher Muhammad gifted land measuring 20 Kanals, 6-1/2 Marlas in favour of his three minor sons. The minors were at the time of registration of the deed represented by Muhammad Yousaf, who accepted the contents of the gift-deed as correct. Since the property was gifted to minors, therefore, the delivery of possession to the minors was not necessary. No doubt Muhammadan Law prescribes that for validity, of gift delivery of possession is necessary as a general rule, but the law prescribes an exception to the general rules in a case where gift is made to the minor by his father or by guardian to his ward. In Sardar Ikramullah Khan and another v. Federal Land Commissioner, Pakistan, Rawalpindi and 6 others PLD 1984 Pesh. 260 it was held: "Bona fide gift by father in favour of his minor sons, presumption was that no change of possession was necessary"
Likewise in Abdullah v. Maqbool Ahmad 1988 CLC 1633 it was held: "As regards the contention regarding invalidity of gift on the ground of non-delivery of possession, it may be observed that, no doubt, Muhammadan Law prescribes that for validity of gift delivery of possession is necessary as a general rule. But the law prescribes an exception to the general rule in a case where gift is made by a father to his minor son or by a guardian to his ward. In such a case change of possession is not necessary and the possession of the father or guardian after declaration of gift is presumed to be on behalf of the minor (para 155-Mulla)."
Similarly in Rabia Khatun v. Azizuddin Biswas and others PLD 1965 SC 665 it was held: "that in case of gift by father to his infant child, possession remained with the father as natural guardian and formal delivery of possession to donee is not necessary."
6. There is no dispute that a Muslim can gift his property to any one with his free will. For gift no writing is essential. The donor can gift orally. The petitioners/ plaintiffs admitted that their father died in the year 1990. The record transpires that the father of the petitioners/ plaintiffs was alive at the time of gift to donee. He never challenged the gift in his lifetime. It could not be acceptable the minor had mutated the suit property fraudulently with collusion. How the revenue authority had transferred the suit property in the name of minor without consent of father of petitioners/ plaintiffs.
7. As per record the petitioners/ plaintiffs challenged the gift and transfer/mutation after more than forty (40) years of transfer/ mutation. The question is why the petitioners/ plaintiffs remained silent for such a long period? The petitioners/ plaintiffs themselves admitted that they transferred the inherited property of their father immediately after his demise but remained silent in regard of suit property. Though mutation entry cannot create or extinguish title but it has evidentiary value. Under Section 52 of the Land Revenue Act 1967 presumption truth attached with the record of rights.
Rebuttal of long standing entries requires strong evidence. Reliance is placed on Sakhawat Ali v.
Province of Punjab, 2002 YLR 2338.
8. The revisional jurisdiction of this Court is limited. While exercising the revisional jurisdiction this Court is not permitted to re-open or deilate upon merit of the case unless and until grave injustice or illegality is proved on record. Reliance is placed on case Muhammad Idrees v. Muhammad Pervaiz, 2010 SCMR page 5, wherein it was held:- "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. It is also settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras case. PLD 1949 PC 26. With regard to section 115, C.P.C it is observed by the Privy Council as under:
(1) This section empowers the High Court to satisfy itself upon three matters:
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law.
The learned High Court did not interfere in the concurrent conclusions arrived at by the Courts below keeping in view aforesaid parameters prescribed by the Privy Council. It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution unless and until the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us.
It is an admitted fact that predecessor-in-interest of the petitioners and respondents are real brothers. Registered sale-deed executed and registered in favour of both the brothers. It is a settled principle of law that registered document has sanctity attached to it and strong evidence is required to cast an aspersion on its, genuineness. See Mirza Muhammad Shard's case 1993 SCMR 462. It is also settled fact that: sale-deed was executed in the year 1952. Therefore, it is. 30 years old document. Under Article 100 of the Qanun-e-Shahadat Order, presumption is attached to 30 years old documents which is rebuttable presumption. This duty becomes all the more heavily cast when opposite party challenges very genuineness of document. It is proper to mention here that petitioners fail to rebut the same as is evident from the contents of the written statement filed by the petitioners. Even otherwise there is no substantial question of law arising in the petition. It is also settled principle of law that constitutional jurisdiction is always discretionary in nature.
5. We are not inclined to exercise our discretion in favour of the petitioners as laid down by this Court in the following judgments:
(i) Khuda Bakhsh's case 1974 SCMR 279 and
(ii) Syed Raunaq Ali's case PLD 1973 SC 236.
In view of what has been discussed above the instant petition being devoid of merit is hereby dismissed. The judgments and decrees dated 30th June, 2016 and 30th November, 2019 passed by Civil Judge-VIII, Quetta and Additional District Judge, Kuchlak respectively are upheld. No order as to costs.