RASAAL HASAN SYED, J. This civil revision impugns judgments and decree dated 31.1.2022 and 22.4.2022 of the courts below whereby the suit of the respondents was partly decreed and appeal there against was dismissed.
2. Respondents instituted a suit for declaration to challenge mutation of oral tamleeq No.1598 dated 28.6.20210 and mutation of inheritance No.1833 dated 15.8.2012 raising the plea that respondent No.1 did not make any oral gift or tamleeq in favour of her deceased husband Qadeer Anwar Shah; that the mutation of tamleeq in respect of land measuring 38 kanals 17 marlas was got attested fraudulently; that no declaration, acceptance or transfer of possession was ever made; that the mutation of tamleeq was ineffective qua her rights; and further that petitioner No.1/Raheela Begum having already been divorced by Qadeer Anwar Shah the mutation of inheritance No.1833 to the extent of allocation of share as widow in her favour was illegal and ineffective in law. The petitioner defendants controverted the allegations made by the respondent plaintiffs and pleaded that deceased Qadeer Anwar Shah owned the suit property; that on his demise it devolved upon the legal heirs of the deceased; that oral tamleeq was made by respondent No.1 with free will and consent; and that Qadeer Anwar Shah did not divorce Mst.
Raheela Begum in his lifetime who as widow of the deceased was entitled to her share in the inheritance. Parties produced their respective evidence whereafter the suit was partly decreed by the learned Civil Judge vide judgment and decree dated 31.2.2022 in the following terms: "In light of my findings on above said issues, tamleeq mutation No.1598 dated 28.6.2010 is the result of fraud, misrepresentation, illegal and ineffective upon the rights of plaintiffs, hence, the same is liable to be cancelled. Inheritance mutation No.1833 dated 15.8.2012 is also liable to be cancelled to the extent of land measuring 38 Kanals 17 Marlas as this land was not the ownership of deceased Qadir Anwar Shah, however, to the extent of distribution of shares of parties the same shall remain intact. In such terms the suit of plaintiffs is decreed in their favour with costs. Decree sheet be prepared accordingly. File be consigned to the record room after its due completion."
Appeal of the petitioners thereagainst was dismissed by the learned Addl. District Judge, Sahiwal vide judgment dated 22.4.2022. In the instant petition both the judgments are under challenge.
3. Heard.
4. Perusal of the copies of record annexed with the instant petition shows that the respondents challenged mutation of tamleeq No.1598 dated 28.6.2010 and the mutation of inheritance No.1833 dated 15.8.2012. Case set up in the pleadings was that the suit property was partly inherited by respondent No.1 from her parents and partly she had purchased from her siblings through different mutations and that she never made any oral gift/tamleeq nor ever transferred her property in favour of her deceased husband Qadeer Anwar Shah and that no declaration, acceptance of oral gift or transfer of possession had ever taken place nor she had ever appeared before the revenue authorities for the attestation of mutation of tamleeq. Respondent No.1 Nargis Bano appeared as P.W.1 and produced documentary evidence Exh.P1 to Exh.P11. In her statement she deposed that the land owned by her was acquired partly through inheritance from her parents and partly she had purchased from her siblings and that she never made any oral gift/tamleeq in favour of her late husband Qadeer Anwar Shah nor did she ever appear before the revenue authorities and that she continued to be in possession of the property. Petitioners appeared in defence as D.W.1 and produced Syed Shahbaz Nadeem as D.W.2 but they did not produce either the patwari or any of the revenue officers who allegedly attested the mutation or the witnesses of the alleged tamleeq.
So much so that the written statement did not ever disclose the date, time or place of the oral gift/tamleeq or the persons in whose presence such oral tamleeq was ever made.
5. As per rule where a transaction by way of oral gift/tamleeq is claimed and its existence is disputed by the owner/ transferor who states that no such oral gift/tamleeq was made nor was properly transferred by way of such mode, the onus of proof shifts on to the beneficiary who is required in law to prove the oral transaction and also the alleged mutation of tamleeq. The petitioners who were under heavy onus to prove the stance did not disclose these mandatory particulars in the written statements viz. date, time and place of oral gift/tamleeeq and also the persons in whose presence such oral tamleeq was made nor took the trouble to produce any witnesses of such oral transaction and also the attestation of mutation. Even the persons who allegedly identified the donor before the revenue officer did not appear in the witness-box nor transfer of possession could be proved which was a constitutive element of valid gift. Claim of oral tamleeq in such circumstances even otherwise was unnatural/unusual on the face of it inasmuch as the stance was that respondent No.1 had allegedly transferred her inherited property as well as the self-acquired property by purchase from her siblings to her late husband despite the fact that she had her own children. Be that as it may, oral tamleeq could not be proved by any admissible evidence.
6. In "Peer Baksh through LRs and others v. Mst. Khanzadi and others" (2016 SCMR 1417) it was observed to the effect that alleged beneficiary of gift is under an obligation to establish the ingredients of gift and where in the pleadings no particulars whatsoever were given such as time, date, place and details of witnesses of such declaration and acceptance of gift as also the transfer of possession nor any evidence is produced to prove the same the plea of gift could not be established. In "Rehmatullah and others v. Saleh Khan and others" (2007 SCMR 729) it was observed to the effect that mutation by itself could not create any title and that it was imperative for the petitioners claiming title under mutation to prove that the transferor did part with ownership of the property in favour of the transferee and that the mutation was duly entered and attested. In "Muhammad Akram and another v. Altaf Ahmad" (PLD 2003 SC 688) it was observed to the effect that with the attestation of mutation most pivotal entries are recorded by the halqa patwari who enters the mutation and the revenue officer who happens to attest the same and both of them if not produced and examined in court, in the absence of said key officials, mutations could not be characterized as proved.
7. The courts below after considering the evidence, taking note of the facts referred supra and also the rule consistently observed by the superior courts concurrently concluded that the petitioners had failed to prove the oral gift/tamleeq and that mutation in issue was a result of fraud, misrepresentation and of no legal effect. No misreading and non-reading of any material part of the evidence could be pointed out nor any jurisdictional error or legal infirmity could be referred as to warrant interference.
8. As upshot of the above, the instant revision petition is without substance and is, accordingly, dismissed.