MIRZA VIQAS RAUF, J. This petition invokes the revisional jurisdiction of this Court as contemplated under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "C.P.C.") against the judgment and decree dated 01st November, 2012 handed down by learned District Judge, Rawalpindi, whereby he proceeded to allow the appeal preferred by respondents No.1 to 4 (hereinafter referred to as "respondents") as a result setting at naught the judgment and decree dated 24th December, 2011 passed by the learned Civil Judge Class-I, Rawalpindi.
2. The proposition involved in this petition is quite common to our society. Abdul Rehman son of Khatar Khan was a big landlord in the revenue estate of Daultala Tehsil Gujar Khan District Rawalpindi. He was having two sons namely Muhammad Afsar and Muhammad Khan whereas Aksar Jan was his daughter. Abdul Rehman purportedly gifted a part of land measuring 101 Kanal 19 Marla (hereinafter referred to as "suit land") to Muhammad Khan (one of his sons) qua which mutation No.633 dated 18th September, 1962 was recorded. Abdul Rehman died in the year 1969 whereas Muhammad Khan passed away in the year 1998, who ultimately survived the "respondents". The petitioners being the successors-ininterest of Muhammad Afsar instituted a suit for declaration, separate possession through partition and injunction averring therein that their predecessor-in-interest namely Muhammad Afsar died in the year 1978 and after his death, they remained under the custody of Muhammad Khan, who however died later on. It is asserted that after demise of Muhammad Khan, the petitioners and "respondents" started living separately on the basis of family settlement, however, "respondents" refused to give half share in the "suit land" on the plea that it is not joint being gifted to their predecessor-in-interest by Abdul Rehman. On further inquiry by the petitioners it revealed on them that a gift mutation No.633 was sanctioned on 18th September, 1962 in favour of Muhammad Khan, which as per their stance was the outcome of fraud and misrepresentation having no effect upon their rights.
3. Suit was resisted by the "respondents" on multiple grounds through a written statement. On account of serious challenge on both sides as reflected in their respective pleadings, the trial court proceeded to frame multiple issues. After framing of issues both the sides produced their evidence and upon completion of the same, suit was decreed vide judgment dated 24th December, 2011.
Feeling aggrieved the "respondents" preferred an appeal before the learned District Judge, Rawalpindi. The appeal was ultimately allowed by way of impugned judgment and decree.
4. Learned counsel for the petitioners contended that being the beneficiaries, it was though obligatory for the "respondents" in the first instance to plead the gift transaction but no such assertion was made in the written statement. He added that evidence can only be led with regard to a fact, which finds mention in the pleadings.
Learned counsel contended that suit was mainly resisted by the "respondents" on the ground of limitation. He added that in case of fraud no limitation runs against the person, who has been defrauded. Learned counsel submitted that even otherwise the proceedings relating to sanctioning of gift mutation are tainted with material irregularities. It is contended with vehemence that gift was never pleaded and mutation by itself is not a document validating the original transaction.
Learned counsel emphasized that suit was initially rightly decreed but the appellate court while forming a contra view has grossly misread the evidence. It is argued that the impugned judgment and decree is not tenable under the law. In support of his contentions, learned counsel placed reliance on FAQIR ALI and others versus SAKINA BIBI and others (PLD 2022 Supreme Court 85), NOOR DIN (DECEASED) through LRs versus PERVAIZ AKHTAR and others (2023 SCMR 1928), Mst.
RABIA GULA and others versus MUHAMMAD JANAN and others (2022 SCMR 1009), Syed KAUSAR ALI SHAH and others versus Syed FARHAT HUSSAIN SHAH and others (2022 SCMR 1558), PRINCIPAL PUBLIC SCHOOL SANGOTA, GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others versus SARBILAND and others (2022 SCMR 189) and SAADAT KHAN and others versus SHAHID-UR-REHMAN and others (PLD 2023 Supreme Court 362).
5. Conversely, learned counsel for the "respondents" submitted that gift was validly made. He added that the petitioners on account of their conduct were precluded to institute the suit. Learned counsel submitted that in pursuance to the gift mutation necessary entries were incorporated in the revenue record and the petitioners were well aware of the same. Learned counsel emphasized that even otherwise the donor though remained alive for a considerable period but he never challenged the gift transaction. Learned counsel contended that suit was instituted by the petitioners on account of mala-fide. It is also contended that fraud was though alleged but no particulars of fraud were mentioned in the plaint. Learned counsel submitted that suit was wrongly decreed by the trial court and the appellate court was fully justified to set at naught the findings of the trial court in the circumstances. In the last, learned counsel argued that suit was hopelessly barred by time. In order to supplement his contentions, learned counsel placed reliance on Mst.
GRANA through Legal Heirs and others versus SAHIB KAMALA BIBI and others (PLD 2014 Supreme Court 167), Mst. KALSOOM BEGUM versus PERAN DITTA and others (2022 SCMR 1352) and Mst.
FAHEEMAN BEGUM (DECEASED) through L.Rs and others versus ISLAM-UD-DIN (DECEASED) through L.Rs and others (2023 SCMR 1402).
6. Heard. Record perused.
7. "Suit land" (101 Kanal 19 Marla) was part of estate owned by Abdul Rehman, who was Headman of village Daultala Tehsil Gujar Khan District Rawalpindi. Abdul Rehman breathed his last on 06th January, 1969 leaving behind two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. The petitioners are the successors-in-interest of Muhammad Afsar whereas the "respondents" are the legal heirs of Muhammad Khan. The matter in controversy stems from mutation No.633 dated 18th September, 1962 purportedly effected in favour of Muhammad Khan.
8. Before delving into the merits of the case it would be advantageous to point out certain admitted facts, which even otherwise are quite relevant for the matter in controversy. Gift mutation No.633 was sanctioned on 18th September, 1962 whereas Abdul Rehman (donor) died on 06th January, 1969. Muhammad Khan (donee) passed away on 28th December, 1998 whereas Muhammad Afsar, predecessor-in-interest of the petitioners took his last breath on 04th March, 1978. It would not be out of context to mention here that Muhammad Afsar was Sub-Inspector in police department.
9. The points for determination before this Court are; firstly, validity of gift transaction; secondly, effect of non-challenging of gift by the donor and; thirdly, lim itation.
10. Adverting to the first limb of controversy it is noticed that to this effect issue No.7 was framed.
Being the plaintiffs, it is the claim of the petitioners that gift mutation is a product of fraud. Contrary to this the "respondents" pleaded that gift transaction was valid one. In terms of Order VI Rule 4 of the "C.P.C." a party pleading any misrepresentation or fraud is obliged to narrate particulars to that effect. When plaint is examined in this context it is clearly lacking any details or particulars that how the transaction was tainted with fraud. In order to prove their claim, the petitioners examined Muhammad Rizwan being one of the petitioners as PW1. In his statement he reiterated the facts contained in the plaint and asserted that Abdul Rehman has though never made any gift in his lifetime, but Muhammad Khan was since Headman, so in connivance with the revenue officials, he succeeded in getting the gift mutation effected in his favour. Bashir Ahmad being close relative of the petitioners as well as the "respondents" appeared as PW2. He stated that Muhammad Afsar and Muhammad Khan partitioned their property in the year 2003 and he came to know about the gift in the said year. During his cross-examination Bashir Ahmad admitted that Mst. Munawar Jan, petitioner No.1 gifted him portion of land from the share of her inherited property. He also admitted that one Muhammad Ashiq had filed a suit against Abdul Rehman and Muhammad Khan wherein he acted as special attorney on behalf of the latter and the suit was dismissed finally. He also admitted that Abdul Rehman has rightly made the gift in favour of Muhammad Khan. Though there were certain pivotal admissions in the statement of Muhammad Rizwan (PW1) as well but the statement of Bashir Ahmad (PW2) was quite fatal to the claim of the petitioners.
11. There can be no cavil that mutation by itself is not a document of title and it is only an acknowledgment of the original transaction, which has taken place prior to the incorporating/sanctioning of mutation and a person relying upon mutation has to establish the original transaction in the first instance. The facts of this case are, however, bit different. The "respondents" though did not plead the original transaction in clear words in their written statement but they while responding to para No.4 of the plaint and denying the averments of the para, asserted that the original owner Abdul Rehman made a valid gift of "suit land" in favour of Muhammad Khan through mutation No.633 attested on 18th September, 1962 whereafter the gift mutation was incorporated in the revenue record and the donee (Muhammad Khan) enjoyed the possession as well as ownership of the "suit land". They further asserted that Abdul Rehman (donor) and Muhammad Afsar, predecessor-in-interest of the petitioners accepted the donee as lawful owner of the "suit land" and never challenged the gift mutation in their lifetime.
12. Article 113 of the Qanun-e-Shahadat Order, 1984 ordains that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. To the above effect when the statement of Bashir Ahmad (PW2) is analyzed, he in his cross-examination deposed as under :- In view of admissions with regard to the validity of gift by the petitioners' own witness, there remains no necessity for the "respondents" to assert or lead any material to that effect. It clearly evinces from the record that after effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years.
13. Coming to the question of effect of non-challenging of gift by the donor, it is noticed that Abdul Rehman survived two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. Donor was owner of about 300 Kanal land in Daultala Tehsil Gujar Khan District Rawalpindi, however, he gifted "suit land" to his son namely Muhammad Khan. It appears that as Muhammad Afsar was in the police department, so the donor being father of Muhammad Khan (donee) opted to gift the "suit land" in his favour, so as to safeguard his rights as he was unemployed. Leaving aside this aspect it is an oft repeated principle of law that where in his lifetime donor did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel.
14. In the present case gift mutation was sanctioned on 18 September, 1962 and the donor though remained alive till 06th January, 1969 but he did not challenge the gift in favour of his son (Muhammad Khan). Furthermore the petitioners are claiming right in the "suit land" being successors-in-interest of Muhammad Afsar, who too remained alive till 04th March, 1978 but never challenged the gift. The petitioners are thus precluded to dispute the gift mutation on the ground of estoppel. Reference to this effect can be made to GHULAM ABBAS and others versus MOHAMMAD SHAFI through LRs and others (2016 SCMR 1403), MUHAMMAD RUSTAM and another versus Mst.
MAKHAN JAN and others (2013 SCMR 299) and JAMILA KHATOON and others versus AISH MUHAMMAD and others (2011 SCMR 222).
15. Now attending the last point for determination, which relates to limitation, it is observed that a suit for declaration of any right as to any property, the person claiming such right has to institute the suit under Section 42 of the Specific Relief Act, 1877 and the limitation of such suit is to be regulated and governed by Article 120 of the Limitation Act, 1908. Suit was instituted by the petitioners on 30th July, 2003 challenging the validity of gift mutation on the ground of fraud asserting that the cause of action accrued to them six months before institution of the suit on claim of the respondents' that they are exclusive owners of the "suit land".
16. It is evident from the record that after the gift mutation entries were incorporated in the light thereof in the revenue record. It also evinces that after the incorporation of "suit land" in his name in furtherance of gift mutation the donee transferred portion of the "suit land" in favour of the "respondents" through mutation No.2786 dated 30th May, 1981 (Exhibit-P23). Not only this but through mutation No.2714 (Exhibit-D18) 03 Kanal 18 Marla of land was mutated in favour of the petitioners as well through gift.
17. Section 42 of the Specific Relief Act, 1877 ordains that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. Section 42 of the Act ibid is reproduced below for the purpose of convenience :- "42. Discretion of Court as to declaration of status or right.-- (1) Any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:th Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
(2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under sub-section (1) shall be decided by the Court within six months and the appellate court shall decide the appeal not later than ninety days, as the case may be."
From the bare perusal of the above referred provision of law it becomes crystal clear that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right.
18. In the case of SALAMAT ALI and others versus MUHAMMAD DIN and others (PLD 2022 Supreme Court 353) Supreme Court of Pakistan outlined the scope of Section 42 of the Specific Relief Act, 1877 in the following words:- "25. A suit for declaration of any right as to any property is filed under section 42 of the Specific Relief Act 1877 ("Specific Relief Act"). Therefore, to ascertain when the right to sue accrues to a legal heir to seek a declaration of his ownership right over the property inherited by him and of his such right not to be affected by the further transfer of such property, we need to consider section 42 of the Specific Relief Act, which reads:--
42. Discretion of Court as to declaration of status or right-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
(Emphasis added)
It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.
26. What "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record, is a question that requires consideration. Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an "actual denial" of his rights, and does not remain a mere "apprehended or threatened denial".
Therefore, in such a case, if the person injuriously affected by such an act of "actual denial" of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.
27. In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation.
Therefore, a wrong mutation is a mere "apprehended or threatened denial" of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser.
In such a circumstance, the co-sharer by his said act "actually denies" the rights of the other co- sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser."
Reliance in this respect can also be placed on Mst. RABIA GULA and others versus MUHAMMAD JANAN and others (2022 SCMR 1009).
19. After having an overview of the principles laid down in the cases cited above, it can safely be held that limitation would start running from the date of knowledge of the donor and not the petitioners. Even otherwise the petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for considerable time after the sanctioning of gift mutation, were not aware of the same and thus could not challenge it during their lifetime.
Contrarily sufficient material is available on the record to show that the petitioners were well in knowledge of the gift mutation right from its inception but they brought their suit on 30th July, 2003, which is clearly barred by time.
20. So far judgment in the case of Faqir Ali's heavily relied by learned counsel for the petitioners is concerned, it is noticed that in the said case by way of gift mutation female members of the family were deprived from their share in inheritance of their predecessor. They instituted a suit for declaration alleging fraud and were ultimately succeeded to establish that the gift mutations were the product of fraud. In this background, Supreme Court of Pakistan observed that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate. Facts in the case of Noor Din (Deceased) supra were also almost the same, as such principles laid down therein are not applicable to the case at hand. In the case of Saadat Khan's above, the matter was relatable to estate of Isa Khan, who died and after his death inheritance mutation was sanctioned only in favour of his son Abdul Rehman on 23rd March, 1995, which was later on challenged in the year 2004 by Mst. Mehro and Mst. Afsro claiming themselves daughters of said Isa Khan and in this background, Supreme Court of Pakistan again observed that a suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The principles laid down in the said judgment are same as were previously held in the case of Faqir Ali's supra.
21. From the facts and circumstances of the present case it is since established on the record that neither donor nor father of the petitioners challenged the gift mutation in their lifetime and the petitioners even did not assert in their plaint either of them were not aware about the gift mutation, so their suit becomes badly barred by time. Even otherwise in view of availability of material qua the fact that donee gifted some portion of land to the petitioners and they accepted the same, there remains no room to infer that they were not having knowledge of the gift. Suit was thus rightly adjudged as barred by time by the appellate court.
22. Though there is divergence of views in the courts below and conclusion are contrary to each other but this Court, while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments in order to examine their validity on the touchstones of Section 115 of "CPC". It is cardinal principle of law that in the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity. Reference in this respect, if needed can safely be made to the case of MUHAMMAD NAWAZ through L.Rs versus Haji MUHAMMAD BARAN KHAN through L.Rs. and others (2013 SCMR 1300).
Relevant extract from the same is reproduced herein below:- "12....... We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of Madan Gopal and others vs Maran Bepari and others (PLD 1969 SC 617) that if the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding." This view also finds support from the cases of Muhammad Shafi and others vs. Sultan Mahmood and others (2010 SCMR 827)
The above view also finds support from the cases of AMJAD IKRAM versus Mst. ASIYA KAUSAR and 2 others (2015 SCMR 1) and MUHAMMAD HAFEEZ and another versus DISTRICT JUDGE, KARACHI EAST and another (2008 SCMR 398).
23. After having a comparative analysis of both the judgments, I am of the firm view that the learned District Judge, Rawalpindi has rightly interfered with the judgment passed by the learned Civil Judge, Rawalpindi. The petitioners have failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by this Court in exercise of revisional jurisdiction. The instant petition thus fails and is dismissed with no order as to costs.