ABDUL HAMEED BALOCH, J. Through this judgment I intend to dispose of above titled revision petition filed by the petitioners/ defendants Nos. 1 to 17 against the judgments and decrees 26th March, 2018 and 22nd June, 2018 (impugned judgments and decrees) passed by learned Judicial Magistrate/Civil Judge, Karezat at Khanozai and learned Additional District Judge, Pishin respectively (trial court and appellate court), whereby the suit of respondent No. 1/ plaintiff was decreed and the appeal filed against the same by the petitioners/ defendants Nos.1 to 17 was dismissed.
2. Concise facts of the case are that the respondent No. 1/ plaintiff filed a suit for declaration, cancellation of Mutations Nos. 135, 96 through reference Mutation No. 117, Mutations Nos. 56, 116, 67, 64-52, 150, 115 and permanent injunction against the petitioners/defendants Nos.1 to 17 and respondents Nos. 2 to 11 / defendants Nos. 18 to 27 in the court of Judicial Magistrate/Civil Judge, Karezat at Khanozai with the prayer: a. To declare that the father of plaintiff, defendants Nos.1 to 4, defendants Nos. 14 to 17 and grand father of defendants Nos. 5 to 13 namely Akhtar Muhammad was/is owner of properties i.e. (i) land bearing mutation No. 66, khewat khatooni No. 16/16, Mutation No. 34 reference Mutation Nos.26, 31, 32, khewat khatooni No. 11/11 measuring 0 rode 13 pole and mutation No. 34 measuring 13 rode 27 pole situated at Mahal Karez Bostan Mauza Bostan Tappa Bostan, Tehsil Pishin and Mahal Karez Jadeed Haroon, Mauza Bostan, Tappa Bostan, District Pishin, (ii) Property bearing mutation No. 148 reference Mutation No.138 khewat khatooni No. 10/10, 11/11, 13/13, reference mutation No. 115, 139 khewat khatooni No. 16/16, mutation No. 94 khewat khatooni No 16/16 and another property reference mutation No. 66 under khasra Nos. 835/363, (837/372 Qitas), (07 Shabanaroz, 2/7 Saya Aab) khasra No. 325-834/364 two Qitas, 766/536 add 8 qitas, (iii) mortgaged property bearing intiqal No. 96, khewat khatooni No. 11/11 khasra measuring 90 rode 16 pole Mahal Karez Bostan Mauza Bostan Tappa Bostan, District Pishin through mutation No. 151 with Bank vide mutation No. 151, (iv) mutation No. 135/1 khewat khatooni No. 11/11 khasra No. 350, 352 measuring 4 rode 4 pole, 01 rode 02 pole, 03 rode 02 pole (v) property mutation No. 56 khewat khatooni No. 8/8 khasra No. 512, 529 through reference mutation No. 52, 53, 529 two qitat khasra No. 514/515, two qitat measuring 27 rode 30 pole and 12 rode 9 pole situated at Mahal and Mauza Jadeed Haroon, Mauza and Tappa Bostan, District Pishin (vi) property bearing intiqal No. 116 through reference mutation No. 115 khewat khatooni No. 11/11 khasra No. 19 Qitat, measuring 39 rode 39 pole of Mahal Karez Bostan, Tappa Bostan, Tehsil and District Pishin, (vii) property bearing mutation No. 67 khewat khatooni No. 7/7 khasra No. 166 measuring 0 rode 22 pole situated at Mahal Karez Mehtarzai, District Pishin, (viii) the property bearing intiqal No. 64 reference mutation No. 34 khewat khatooni No. 10/10, 11/11, khasra Nos. 815/456, 822/459 two Qitat measuring 13 rode 27 pole (ix) property bearing intiqal No. 52 khewat khatooni No. 8/8 khasra Nos. 512, 529, two Qitat situated at Mahal Karez Jadeed Haroon Mauza Bostan, Tappa Bostan Tehsil Karezat District Pishin (x) property bearing intiqal No. 150 reference mutation Nos. 85, 198, khewat khatooni No. 16/16 Min khasra No. 391 measuring 124 rode 19 pole situated at Mahal Karez Bostan Mauza Bostan District Pishin (xi) property bearing intiqal No. 115 khewat khatooni No. 11/11 khasra No. 19 measuring 19 rode 39 pole, 11 rode 17 pole mortgaged with Zari Tarqiati Bank Pishin Branch (xii) property bearing intiqal No. 139 khewat khatooni No. 13/13 reference intiqal No. 115 khasra Nos. 833, the property measuring 3 rode 29 pole, khasra Nos.
833/364, measuring 3 rode 29 pole mutation No. 138 khewat and khatooni No. 10/10 Min, khasra No. 835/363 measuring 2 rode 13 pole khasra No. 837/372 measuring 1 rode 12 pole total 3 rode 25 poles. b. To declare that the defendants Nos. 1 to 4 through fraud and misrepresentation Hiba some of the properties on their names and sold out some properties to different persons through different mutations by depriving the plaintiff and female defendants of their ancestral shares; c. To cancel all the above illegal mutations, Hibas, exchanges, mortgages and thereafter, partition the same in between the legal heirs of late Akhtar Muhammad. d. By means of permanent injunction, the defendants be restrained from selling, alienating, changing nature and involving third party interest in the property in dispute. e. Any other relief, which this Hon'ble court may deem fit and proper in the circumstances of the case, may also be awarded in favour of the plaintiff."
3. The defendants Nos.1 to 17 contested the suit on legal as well as factual grounds by filing written statement, whereas defendants Nos. 18 to 24 filed their written statement contesting the suit on legal as well as factual grounds.
4. Out of the pleadings of the parties the learned trial court framed following issues: i. Whether the suit of the plaintiff is bad for non joinder of necessary parties? ii. Whether the suit for declaration and permanent injunction without seeking possession is competent? iii. Whether the defendants Nos. 1 to 4 have mutated properties in question in their names through fraud and on the basis of fake Hiba deed by depriving the plaintiff and other co-sharers? iv. Whether the plaintiff is entitled for the relief claimed for? v. Relief?
5. After framing of issues the parties produced evidence in pro and contra. On culmination of trial and hearing arguments the learned trial court vide judgment and decree dated 26th March, 2018 decreed the suit. The petitioners/ defendants Nos.1 to 17 being aggrieved of the same filed appeal before learned Additional District Judge, Pishin, but the same was dismissed vide judgment and decree dated 22nd June, 2018, hence the petitioners/ defendants Nos.1 to 17 are before this court.
6. Learned counsel for the petitioners/ defendants Nos.1 to 17 contended that the transfer was made before the death of predecessor in interest of respondent No. 1/ plaintiff. At the time of death there was no inheritance. The inheritance will open after demise. The properties in question were gifted and legally mutated/ transferred in the names of the petitioners/ defendants. The respondent No. 1/ plaintiff failed to prove fraud. The deceased father had left no inherited property.
The impugned judgments and decrees of both the courts below are against the settled principle of law.
7. The learned counsel for the respondent/ plaintiff contended that the judgments of the courts below are well reasoned, needed not to be interfered. The petitioners/ defendants Nos.1 to 17 had unlawfully deprived the female heirs of deceased Akhtar Muhammad. Depriving of daughter from inheritance is against the Sharia.
8. Heard and perused the record with the assistance of learned counsel for the parties. The record transpires that the respondent No. 1/ plaintiff filed suit for declaration, cancellation of mutations Nos. 135, 96 through reference mutation No. 117, mutation Nos. 56, 116, 67, 64-52, 150, 115 and permanent injunction before the trial court contending therein that the respondent No. 1/ plaintiff being daughter of late Akhtar Muhammad is entitled for her sharai share in the inheritance, but the petitioners/ defendants Nos.1 to 4 through fraud and producing fake witness of Hiba (gift) transferred the properties on their names and also sold out to different persons by ignoring and depriving respondent No. 1/ plaintiff and female defendants/ sisters of plaintiff of their shares. The petitioners/ defendants Nos.1 to 17 filed joint written statement by raising legal as well as factual objections stating therein that the mutation of exchange transaction and Hiba effected by the petitioners/ defendants Nos.1 to 17 was according to law. The defendants Nos. 18 to 24 filed separate written statement. The learned trial court decreed the suit, while the appeal filed was dismissed.
9. Before discussing the evidence it would be appropriate to look a glance on transfer mutations produced by PW-3 as Ex: P/1-A to Ex: P/14-A: i. Perusal of Ex: P/3 transpires that transfer was made from the name of Akhtar Muhammad to Muhammad Yar, Ahmed Yar, Muhammad Anwar Ali, Wali Muhammad, Ali Ahmed through gift mutation in the year 2008. The referred transfer/mutation further reveals that Hamadullah son of Muhammad Yar (son of donee Muhammad Yar) identifier his paternal grandfather. Neither CNIC number of donee, signatures of donee and witnesses are available on the referred transfer/mutation. ii. Transfer/mutation in khewat/khatooni No. 8/8 was made from the name of Akhtar Muhammad to his son Wali Muhammad on 25.3.1999, but no signature of donor is available; iii. Transfer/mutation from khewat/khatooni No. 11/11 was made in the name of Ali Ahmed (produced as Ex: P/3), but no signatures, CNIC number of identifier is affixed. Even the CNIC number of donor is not mentioned; iv. In Ex: P/8 transfer/mutation of khewat khatooni No. 7/7 was made on the name of Muhammad Yar, Ahmed Yar, Muhammad Anwar Ali, Wali Muhammad and Ali Ahmed in the year 2008 through gift. The identifier is the son of donee Muhammad Yar, whose CNIC number is not available; v. In Ex: P/9 the transfer/mutation of khewat/khatooni No. 10/10 was effected on the name of Muhammad Yar, Ahmed Yar, Muhammad Anwar Ali, Wali Muhammad and Ali Ahmed in the year 2008. The son of donee Muhammad Yar has been shown as identifier, but his CNIC number is not found in the transfer/ mutation; vi. In Ex: P/12 the transfer/mutation of Shamilat khewat/khatooni No. 16/16 to the extent of share of Akhtar Muhammad was made in the name of Ali Ahmed in the year 2011.
10. Admittedly the above referred lands were mutated in the name of Akhtar Muhammad, whereafter, the contesting defendants have transferred the above referred land in their names by way of Hiba (gift) meaning thereby that the petitioners/ defendants Nos.1 to 17 admitted the ownership of late Akhtar Muhammad and claimed ownership through oral gift. Before embarking further it is appropriate to narrate the ingredients of a valid gift as provided under the Muhammadan Law as under:
(a) Declaration of gift by donor;
(b) Acceptance of gift by the donee; and
(c) Delivery of possession.
11. The petitioners/ defendants Nos.1 to 17, beneficiary of the gift, in their written statement admitted that the gift is without mentioning any date, month and names of witnesses of the gift. Nothing was made available on the record to prove that the donor appeared before the revenue authority and confirmed the factum of oral gift. The entire proceeding of transfer/mutation of the properties in question was made by the revenue authorities without fulfilling the requirement of transfer/mutation. In many transfers/mutations the son has been shown as identifier. The signature of the donor is different in the transfers/mutations. Even the CNIC number of donor is not mentioned in the gift r transfer. Under the law the donee is/are bound to prove the factum of oral gift. Reliance is placed on Chaudhry Muhammad Younas v. Muhammad Khursheed, 2019 CLC 797.
12. The contention of the petitioners/ defendants Nos.1 to 17 that transfers/ mutations were effected many years before death of donor. He (deceased) himself had not challenged the transfer/mutations. The suit is time barred. The contention has no force. The petitioners are beneficiary of the gift, but they failed to prove the factum of gift through evidence. The petitioners have not produced a single witness of gift. The referred stances which relate to the alleged gift are sufficient to believe that no gifts were made in favour of the contesting defendants. In fact all was managed with the connivance of revenue staff to deprive the female legal heirs of the deceased from their valuable right. The petitioners could not prove through confidence inspiring evidence the ingredients of a valid gift; therefore, it can safely be held that the alleged gift is product of fraud and fabrication just to deprive the female heirs.
13. There are certain requisites of valid oral gift under the Muhammadan Law. There is no witness of gift acceptance and possession. The defendants do not bother to produce any witness of the gift acceptance and possession. Nothing on the record where and before whom Akhtar Muhammad gifted the properties and possession thereof. Reliance is placed on Shabla v. Ms. Jahan Afroz Khilat, 2020 SCMR 352, wherein it was held: "It is recorded in flagrant violation of procedure, provided under section 42 of the West Pakistan Land Revenue Act, 1967 (XVII of 1967). There is none except Ameer Ali Raza Hayat Khan to command transfer of land in favour of his own son to his benefit and to the detriment of the respondent, no other than his real minor sister; flux of time can neither validate the transaction nor wash away the repugnance thereof. Argument that much water has flown under the bridge is entirely beside; the mark. Limitation never run against fraud, more so in the matters involving inheritance rights of a female; a view consistently taken by this Court in cases reported as Fazal Ellahi deceased through legal heirs v. Mst. Zainab Bi (2019 SCMR 1930), Khan Muhammad through L.Rs and others v. Mst.
Khatoon Bibi and others (2017 SCMR 1476), Mahmood Khan v. Syed Khalid Hussain Shah (2015 SCMR 869), Mst. Gohar Khanum v. Mst. Jamila Jan (2014 SCMR 801), Rehmat Ullah and others v.
Saleh Khan and others (2007 SCMR 729), Arshad Khan v. Resham Jan and others (2005 SCMR 1859) and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1)"
14. The Honorable Supreme Court further held in case Muhammad Nawaz v. Sakina Bibi, 2020 SCMR 1021 as under: "9. We note that the defendants in the suit neither mentioned the date, time, place or names of the witnesses in whose presence the oral gift was made in their written statement nor in the evidence produced by them before the trial Court. Even otherwise they could not have improved up on their case set up in the written statement in their evidence on the principle of "Secundum allegata et Probata", meaning, a fact must be alleged by a party before it is allowed to be proved. The petitioners were able to produce only one witness namely Nazeer Hussain Shah-DW-2, who claimed to be present when the oral gift was allegedly made. Even he was not able to disclose the date, time or venue of the oral gift. We also notice that in the cross-examination, DW-2 admitted that at the time of alleged gift mutation Ghulam Muhammad, the donor was about 80 years old, He also admitted that at the time of attestation of the gift mutation no Patidar was present but claimed that he witnessed the mutation in his capacity as a Patidar. DWs 3, 4 and 5 also deposed on the same lines and more significantly failed to utter even a single word about the oral gift or time, date and venue of the same. We are therefore, satisfied that the beneficiaries on whom the onus to prove the oral gift lay, utterly and miserably failed to prove the same in a manner prescribed by the law.
10. Even otherwise, three Courts have concurrently held that the petitioners had failed to prove the oral gift. Further, even the validity of the mutation could not be proved on account of failure on the part of the petitioners to produce the most material witnesses and withholding the best evidence i.e the concerned Tehsildar and other revenue functionaries. Further DW-7 categorically admitted in his evidence that their father Ghulam Muhammad continued to own the property till his death.
This statement proved to be the proverbial "last nail" in the coffin of the case of the petitioners, which was already on a very weak and flimsy foundation. Therefore, we find no reason to interfere in the well reasoned findings of the lower fora which are fully supported by the record. Further the impugned judgment is based upon the settled principles of law on the subject."
15. Scope of revisional jurisdiction is limited. This Court while exercising revisional jurisdiction is not permitted to reopen or dilate upon merit, rather while exercising revisional jurisdiction under Section 115, C.P.C. this Court has to confine itself to the law points involved in the matter or any specific portion of evidence if omitted by the courts below. The courts below have recorded concurrent findings of fact. No interference can be made in the concurrent finding of facts recorded by the courts below. Reliance is placed on Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs, 2000 SCMR 314, wherein it was held: "5. On the scope of interference in revision under section 115, C.P.C., reference can be made to the following principles reiterated in Abdul Hakeem v. Habibullah (1997 SCMR 1139):- "The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however, erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record."
The High Court in fact, re-assessed the entire evidence on record and then discarded the conclusions of the Courts below as they were found inconsistent with his own assessment of evidence. This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C., in our view, is neither permissible nor warranted by law.
As earlier pointed out by us, interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High Court while examining a concurrent finding of fact, recorded by the Courts below in exercise of the jurisdiction under section 115, C.P.C. has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction."
In the present case, none of the following legal or other infirmities in the concurrent findings of the two Courts below in favour of the plaintiff were noted in the judgment or pointed out by learned counsel for the respondents:-
(i) The lower Courts exercised jurisdiction not vested in them.
(ii) The lower Courts failed to exercise any jurisdiction vested in them
(iii) They acted in the exercise of their jurisdiction illegally or with material irregularity.
(iv) Misreading or non-reading of material evidence on record which had a direct bearing on the issues involved.
(v) Findings were perverse.
(vi) Findings could not be reached on ate evidence on record.
In the circumstances, the High Court erred in interfering in revisional jurisdiction with the concurrent judgments of the Trial and the Appellate Courts."
In view of above discussion the instant revision petition being bereft of any merit is hereby dismissed. No orders as to costs.