CH. MUHAMMAD IQBAL, J. Through this civil revision, the petitioner has challenged the vires of judgment and decree dated 04.12.2012 passed by the learned Civil Judge, Piplan District Mianwali whereby, suit for declaration filed by the petitioner was dismissed and judgment and decree dated 04.09 passed by the learned Addl. District Judge, Piplan District Mianwali who dismissed the appeal of the petitioner.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for declaration against the respondents/ defendants contending therein that gift butation No.2837/A dated 12.12.1995 in favour of respondents /defendants Nos.1 and 2 real sons of the plaintiff (at that time, they were minors) is against the law and facts and liable to be cancelled. Respondents/defendants appeared and filed contesting written statement and pleaded genuinity, of the gift and gift mutation. The learned trial court framed issues, recorded pro and contra evidence of the parties and vide judgment and decree dated 04.12.2012 dismissed the suit for declaration filed by the petitioner. Petitioner's appeal was also dismissed by the learned appellate court vide judgment and decree dated 04.09.2013.
Hence, this civil revision.
3. I have heard the arguments of the learned counsel for the parties at full length and gone through the entire record with their able assistance.
4. The main controversy involves in this lis is centered upon issue No.2 which is reproduced as under:- "1. Whether the impugned mutation No.2837 dated 12.12.95 in favour of defendants Nos.1 and 2 is against the law and facts, without consent, void and is liable to be cancelled? OPP"
Onus was upon the petitioner/plaintiff to prove this issue. Petitioner/plaintiff Muhammad Farooq Khan appeared as PW-1 who in his cross-examinations admitted that:- Conversely, Miraj Din appeared as DW-1 who deposed that in the year 1995 he was posted as Patwari in Mouza Kundian. On 11.12.1995, Muhammad Farooq Khan visited him at Kundian and stated that he gifted land measuring 80-Kanals from Khata No.210 to his sons namely Muhammad Akram Khan and Tauseef Ahmad Khan in equal share whereas Moeen-ud-Din accepted the gift on behalf of the minors and possession was handed over. He entered the gift mutation on the request of Muhammad Farooq in the register. That he signed gift mutation No.2837/A (Exh.D1) whereafter Girdawar Halqa attested the same. On 12.12.1995 Tehsildar attested the said mutation in Jalsa-e- aam in presence of Muhammad Farooq Khan (donor) and Moeen-ud-Din Khan on behalf of the minors. Malik Atta Ullah (Lumberdar) and Muhammad Sikandar identified Muhammad Farooq Khan and possession was handed over. That gift mutation No.2837/A (Exh.D1) was attested on 12.12.1995 by the Revenue Officer and Tehsildar in his presence put the signature on Exh.D1. That on Exh.D1 (Pert Patwar) he obtained signatures on the back side of mutation of Muhammad Farooq.
Khan and Moeen-ud-Din. He did not tell that Muhammad Akram and Tauseef Khan were minors.
Muhammad Bakhsh (Retd. Naib Tehsildar) appeared as DW2 who deposed that at the time of attestation of the disputed mutation, Atta Ullah Lumberdar and Muhammad Sikandar, as Pattidar, identified Muhammad Farooq. Muhammad Sikandar appeared as DW 3 who acknowledged his thumb impression on mutation (Exh.D1) by stating that he identified Muhammad Farooq Khan as Pattidar, at that time, Atta Ullah Lumberdar identifier accompanied him who in his presence signed the mutation (Exh.D1) That Muhammad Farooq Khan from his own free will gifted the property to his sons. Moeen-ud-Din accepted: the offer on behalf of the minors, as such, no fraud has been committed. Tauseef Ahmad Khan/defendant No.2 appeared as DW-4 who deposed that Muhammad Farooq Khan, his father, in the year 1995 gifted the property to him and his brother/defendant No. I. That defendant No.3 Moeen-ud-Din is his maternal uncle who has not committed any fraud regarding disputed mutation. That in the year 1995 at the time of attestation of mutation he and defendant No.1 were minors.
5. From the perusal of oral as well as documentary evidence, it reveals that admittedly, respondents Nos. 1 and 2 are real sons of the petitioner/plaintiff and at the time of the sanctioning the gift mutation No.2837/A dated 12.12.1995 they were minors. Petitioner in the plai contended that fraud has been committed by the respondents / defendants while incorporating the, gift mutation whereas they were minors how can they commit fraud with their Fait, as such, onus was upon the petitioner / plaintiff to firstly describe the detail particulars of the fraud and mis-representation in his pleadings (plaint) as required under Order VI, Rule 4, C.P.C., but perusal of the contents of the plaint shows that such requisite particulars of any misrepresentation, fraud, breach of trust, and undue influence have not been described in the plaint which is non-compliance of the above mentioned plain provision of law. This flaw alone dismantles the very foundation of the assertions made in the plaint and any evidence led beyond the scope of pleadings garners no intrinsic value rather the same are ignorable. Moreover mere contents of the pleadings until proved through trustworthy believable corrobora-tive primary evidence, could not be taken as a valid prove or disprove of controversial fact. Petitioner/plaintiff also could not produce any concrete and unimpeachable evidence in support of the allegation of fraud, as such, petitioner/ plaintiff has failed to prove, the allegation of fraud. Reliance is placed on the cases cited as Mst. Sahib Noor v.
Haji Ahmad (1988 SCMR 1703), Messrs Dadbhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi (PLD 2002 SC 500) and Mst. Ashoo Bibi through Legal Heirs v. Gamon and 9 others (2014 MLD 635).
6. Furthermore, respondents Nos. 1 and 2 were minors at the time of execution of gift mutation and it is hard to believe that such tender age children can commit fraud with their father, as such, the stance of the petitioner/plaintiff regarding commission of fraud is not believable. Reliance in this regard is placed on a latest pronouncement of the Hon'ble Supreme Court of Pakistan cited as Sikandar Hayat and another v. Sughran Bibi and 6 others (2020 SCMR 214).
7. In case of gift by a father to his son(s) and revocation of such gift, Para Nos. 155 and 167 of the Muhammadan Law are relevant to consult, which are reproduced as under:-- "155. Gift to a minor by father or other guardian.No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give.
167. Revocation of gifts. (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.
(2) Subject to the provision-of Subsection (4), a gift may be revoked even after delivery of possession except in the following cases
(a) when the gift is made by a husband to his wife or by wife to her husband;
(b) when the donee is related to the donor within the prohibited degree;
(c) when the donee is dead;
(d) when the thing given has passed out of the donee's possession by sale, gift or otherwise;
(e) when the thing given is lost or destroyed;
(f) when the thing given has increased in value, whatever is the cause of the increase;
(g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding;
(h) when the donor has received something in exchange (iwaz) for the gift [see sections 168 and 169].
(3) A gift may be revoked by the donor, but not by his heirs after his death. It is the donor's law that will apply to a revocation and not of the donee.
(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor .nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift." As per para 155 reproduced above no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward which is necessary to establish bona fide intention to give.
8. As far as the arguments of the learned counsel for the petitioner that possession was not handed over is concerned, suffice it to say that under para. 155 of the Muhammadan Law reproduced above, the possession of father is the possession of the minors as settled by the Hon'ble Supreme Court of Pakistan in a case titled as Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 SC 466), wherein it is held that delivery of possession in cases like the present one, when the husband is the donor for a wife living with him; when the father is donor for a daughter and/or a minor living with him or a father-in-law for a daughter-in-law and/or her husband living with him, was not at all noticed. Reliance is also placed on the case titled as Bahadur Khan v. Mst. Niamat Khatoon and another (1987 SCMR 1492). The above said controversy has also been resolved by the Hon'ble Supreme Coart of Pakistan vides judgment dated 03.02.2022 passed in a Civil Petition No.1647 of 2018 titled as Abid Hussain and others v.
Muhammad Yousaf and others PLD 2022 SC 395.
9. Even otherwise, the petitioner has challenged the validity of gift mutation dated 12.12.1995 in a suit for declaration which was filed on 06.05.2009 after lapse of 13-years, 04-months and 25-days whereas under Article 120 of the Limitation Act, 1908, the maximum period for filing the suit for declaration is six years, as such, the suit was miserably time barred and no convincing reason has been furnished for delayed filing of the suit, thus the non-furnishing of explanation disentitled the suitor for condonation of the delay whereas the suitor was under legal. Obligation to explain the delay of each and every day but no such requisite/convincing reasons have been furnished in this regard. Reliance is placed on the case titled as Agha Syed Mustaque Ali Shah v. Mst. Bibi Cul Jan and others (2016 SCMR 910), the relevant portion is as under; "17. The suit was also rightly found to be patently barred by limitation. The declaration sought was with regard to a purported gift, allegedly made on 10.04.1971. The suit, in terms of Article 120 of the Limitation Act, under which Article a suit for a declaration of the nature sought, falls, ought to have been filed within six years of the said gift deed, but was filed on 24.08.2010; after a lapse of more than thirty eight years. Whereas the mutation sought to be cancelled has been effected on 11.04.1990, twenty years prior to the filing of the suit, although limitation for such relief also was/is six years froth the date of the cause of action." As such the learned courts below rightly passed the impugned judgments and decrees and no illegality has been committed.
10. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).
11. In view of above, this civil revision is dismissed being devoid of any force with no order as to cost.