CH. MUHAMMAD IQBAL, J. Through this civil revision, the petitioners have challenged the validity of judgment and decree dated 28.01. 2022 passed by the learned Additional District Judge, Pakpattan who accepted the appeal of the respondent and others, set aside the judgment and decree dated 12.03.2019 passed by the learned Civil Judge, Pakpattan and decreed the suit of the respondents as prayed for.
2. Brief facts of the case are that the plaintiffs and defendants Nos.1 to 4 are sibling and progeny of Khan Muhammad. That respondent No.1/Mst. Sakina Bibi, Mst. Haleema Bibi and Mst. Shamim Bibi daughters of Khan Muhammad filed a suit against the petitioners/defendants Nos.1 to 5 for declaration with permanent injunction contending therein that Khan Muhammad, father of the parties of the lis, was owner of land measuring 35 Acre comprising Khewat No.45/43 Khatoni Nos.173 to 183 situated in Chak Hafiz Sadiq Tehsil and District Pakpattan Sharif. He passed away on 28.12.2009 and his inheritance mutation No.583 dated 25.03.2010 was entered in favour of his legal heirs that the petitioners/defendants used to give lease money and share of produce to the respondents/plaintiffs but they fraudulently got sanctioned gift mutations No,342 dated 19.04.1999 and 352 dated 31.12.1999 whereby they by producing a fake person got alienated 56-Kanals each in their favour and also sold out some land to defendant No.5 through mutation No.583 dated 25.03.2010 and mutation No.558 dated 07.05.2009, as such the above said mutations are result of fraud and misrepresentation; that as the plaintiffs' father had never alienated his land during his life time, as such the said fraudulent traction are liable to be cancelled. The petitioners/defendants filed contesting written statement on legal and factual parlances and pleaded validity of the impugned mutations. Mst. Shamim Akhtar/plaintiff No.3 withdrew the suit on 19.11.2014 to her extent.
Out of the divergent pleadings of the parties, the trial Court framed issues, recorded pro and contra evidence of the parties and finally dismissed the suit vide judgment and decree dated 12.03.2019.
The respondent No.1/Mst. Sakina Bibi along with Mst. Haleema Bibi filed an appeal. During pendency of the appeal, Mst. Haleema Bibi/plaintiff No.1 also withdrew the appeal to her extent on 19.05.2021.
Thereafter the appeal of Mst. Sakina Bibi/respondent No.1/plaintiff No. 2 was allowed vide judgment and decree dated 28.01.2022 by the appellate Court who set aside the judgment and decree dated 12.03.2019 passed by the trial Court and decreed the suit of the respondents/plaintiffs. Hence, this civil revision.
3. Arguments heard. Record perused.
4. As per respective pleading of the litigating parties the main controversy revolves around issue No.1 which is as under:- Whether the mutation No.342 dated 19.04.1999 in favour of defednans Nos. 2 to 4 and mutation No. 352 dated 31.12.1999 in favour of defendant No.1 is the result of fraud and Khan Muhammad did not appear before the Revenue Officer for verification of these mutations? OP Parties In order to prove the asserted stance as well as to dislodge onus of above issue, plaintiffs produced in evidence Nazar Muhammad (P.W.1) who deposed that the parties of the lis are siblings and their predecessor's name is Khan Muhammad; that plaintiffs filed suit for taking their right; that initially defendants used to give share of produce; that after the death of their father, plaintiffs made request to give their share equal to 10-Mawrlas less than 03-acres but the petitioners informed that they (three sisters) are owners of only 04 Kanal land each but after inspection of record, it came into their knowledge that a forged mutation was got entered. Mst. Haleema Bibi (P.W.2) deposed that defendants are her elders brothers and their father had died about 8 years ago; that the defendants were in cultivating possession of the land and gave them share of produce; that when they approached their brothers to give share of land, they (brothers) told that plaintiffs are only owners of 04 Kanal each whereas the plaintiff's ownership is about 10 Marla less to 03 Acre; that on disclosure of the above plaintiffs inspected the record upon which Patwari and Tehsildar informed that defendants had obtained mutation from their father; that father of the plaintiffs till his last breath was willing to give share to his daughters. Hakam Ali (P.W.3) also supported the stance of the respondent No.1/plaintiff. The respondent No. 1/Sakina Bibi herself appeared as (P.W.4) and reiterated the assertions made in the plaint.
5. Conversely, Muhammad Iqbal Khan, one of the petitioners/defendants, appeared as D.W.1 deposed that his father died on 28.12.2009 and he was owner of land measuring 35 Acre in Chak Hafiz Sadiq; that during his lifetime, he alienated his land to his sons Muhammad Abbas, Mustafa and Muhammad Khan and mutation was entered in Tehsil Office. During cross-examination, he deposed that: Muhammad Khan son of Khan Muhammad appeared as D.W.2. Fakhar Hussain son of Nabi Bakhash (attesting witness) appeared as DW3 who deposed that his father has passed away and he identified signatures of his father on mutations. Muhammad Maqbool (D.W.4) deposed that his father Muhammad Aman (attesting witness) has passed away and he identified his signatures on mutations Nos. 342 and 352. Muhammad Nawaz Patwari (D.W.6) deposed that he was posted in village Hafiz Sadiq; that mutation No. 342 was entered by him where Khan Muhammad orally gifted the suit land measuring 168 Kanal to his sons Muhammad Abbas, Muhammad Mustafa and Muhammad Khan. During cross-examination, he deposed that: Ahmad Raza Sultan, Tehsildar appeared as D.W.7 who only narrated the proceeding facts.
6. The respondent No.1/plaintiff in the plaint categorically pleaded that Khan Muhammad, predecessor-in-interest of the parties of the lis, did not make any gift of the suit land to the petitioners/defendants and the gift mutations had been got executed by the petitioners/defendants by committing fraud. To prove the stance, the Respondent No. 1/plaintiff herself appeared as P.W.4 and also produced P.W.1 to P.W.3 in support of her claim and they corroborated her version. Despite lengthy cross-examination, the stance of the P.Ws could not be shattered. Thus the plaintiffs substantially dissipated the onus. At the same time being beneficiary of the gift mutations (transaction), burden was shifted upon the petitioners/defendants to prove the validity of the gift initially by describing expediently the day, date, time, names of the witnesses and venue of the transaction as well as the offer made by the donor and acceptance of the offer, of gift by the donee as well as delivery of possession of gifted property under the gift transaction in their pleading (written statement) and said asserted stance shall be proved through believable and corroborative evidence as well as to prove subsequent event regarding registration of gift deed independently as prescribed under the law but in this case the petitioners/defendants have failed to prove the ingredients of gift which legal flaw vitiates the validity of the gift deed. Thus, non-proving of the asserted stance of gift transaction through corroborative, credible and trustworthy evidence is considered a material flaw which dismantle the very foundation of the stance of the petitioners/defendants. Reliance is placed on the cases titled as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others v.
Sakina Bibi and others (2020 SCMR 1021), Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad v. Ali Akbar and others (2021 SCMR 743) and Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85).
7. Even in the case of alleged gift, the donee has to plead and proved the ingredients of gift independently but the petitioners have miserably failed to prove the ingredients of gift through credible evidence. Reliance is placed on a judgment titled as Fareed and others v. Muhammad Tufail and another (2018), SCMR 139), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "The principal issue, whether the respondent-plaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned Courts below. In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Ghulam Rasool (2003 SCMR 1829) that a donee claiming under a gift that excludes an heir is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a donee is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this Court reported as Barkat Ali v. Muhammad Ismail (2002 SCMR 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan. Advocate who identified Gomaan before the sub-Registrar was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents."
Further reliance is placed on cases titled as Barkat Ali through Legal Heirs and others v.
Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) and Ghulam Haider v.
Ghulam Rasool and others (2003 SCMR 1829).
8. Moreover, Para Nos. 149 and 150 of the Muhammadan Law also describe three important prerequisites for a valid gift such as explicit offer of the gift by donor, acceptance of the gift by the donee and voluntary delivery of possession to the donee under the very gift transaction. The above ingredients are mandatory in nature and absence of proof of any ingredient whereof renders the very gift transaction as invalid. Here, in this case the above said ingredients have neither been pleaded in the written statement nor proved the same as DWs while appearing in the witness box did not depose the said facts in their testimonies and the same is considered a material flaw which dismantled the validity of the gift deed as well as mutation. The Hon'ble Supreme Court of Pakistan in a judgment titled as Mst. Saadia v. Mst. Gul Bibi (2016 SCMR 662) held as under:- "14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non- registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession": Reliance can also be placed on the cases titled as Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402), Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095), Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276), Mst.
Parveen (deceased) through LRs v. Muhammad Pervaiz and others (2022 SCMR 64) and Mst.
Rasoolan Bibi v. Province of Punjab and others (2023 CLC 1171).
9. As per available record the petitioners/defendants tried to deprive the respondent No. 1/plaintiff from her inherited property by committing fraud and getting entered the alleged gift mutations in their favour, whereas such like custom/practice of depriving of the females from their accrued share in the inheritance has seriously been deprecated by the Hon'ble Supreme Court of Pakistan in its landmark judgment, cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under: "...As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time.
In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules.
But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'rights". up to the enforcement even in homes, through 'Social Security Laws, with web of network of 'Inspectorates etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights.. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone."
The above said principle has been reiterated by the Hon'ble Apex Court in a recent judgment cited as Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179). Reliance is also placed on latest judgments rendered by the Hon'ble Supreme Court of Pakistan cited as Mst.
Parveen (deceased) through LRs. v. Muhammad Pervaiz and others (2022 SCMR 64), Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85) and Tahsinullah v. Mst. Parveen (deceased) through L.Rs. and others (2022 SCMR 346). This Court has also elaborately discussed this issue in a judgment cited as Gul Muhammad and others v. Allah Diwaya (deceased) through his Legal Heirs and others (2021 MLD 1146).
10. Besides above, Section 42 of the Land Revenue Act requires the sanctioning of mutation with regard to permanent transfer of ownership of the land owner in the common assembly of the said village and the same revenue estate, so that information of said transaction may wide spread in the vicinity/village. The entrench intent and objective of the above provision is to eliminate element of fraud, collusion or secrecy in the transaction as well as to maintain the sanctity of the transaction. Here in this case, the one of the alleged donees/D.W.1 deposed that the alleged gift mutations were sanctioned at Tehsil Office which cannot be termed as Jalsa-e-Aam, and same is violation of Section 42 of Land Revenue Act. As per evidence and available record the gift mutations were not sanctioned in the common assembly of the village/ which amounts to non-observance of the above plain provision of law, thus it suggests the existence of mischief of fraud in the transaction and the said flaw necessarily vitiates the validity of the transaction of gift mutations whereof. Reliance is placed on the cases titled as Manzoor Hussain v. Shahadat Khan (2010 SCMR 1375) and Taj Muhammad Khan (deceased) through L.Rs and another v. Mst. Munawar Jan and others (2009 SCMR 598).
11. Further, the attesting witnesses of the alleged gift mutations had died and the petitioners/defendants produced sons of the said witnesses to corroborate their stance but the said witnesses (D.W.3 & D.W.4) did not get exhibit the signatures of the said attesting witnesses.
Thus, the petitioners/defendants failed to prove the validity of the alleged gift mutation through the mode prescribed under Article 80 of Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on cases cited as Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 SC 538) and Muhammad Ali v. Sohawa (deceased) through L.Rs and others (2019 CLC 626).
12. Another aspect of the case which shatters the claim of the petitioners/defendants is that Shamim Bibi, one of the plaintiffs appeared before the trial Court on 19.11.2014 and got recorded her statement on oath to the effect that she has received her share from the petitioners/defendants.
For ready reference, the statement of the Mst. Shamim Bibi is reproduced as under: Which statement has not been controverted or challenged any further, thus the beneficiary of the gift transaction themselves had dismantled the validity of the alleged gift mutations in their favour.
13. The trial court has failed to appreciate the legal and factual aspects of the case and dismissed the suit of the respondent No. 1/plaintiff whereas the appellate court, after discussing the facts as well as evidence of the parties, through a well-reasoned judgment and decree has rightly allowed the appeal of the respondent No.1 and decreed the suit to her extern as prayed for. It is well settled law that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.
Reliance is placed on the cases reported as Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398) and Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR 815).
14. Resultantly, this civil revision being devoid of any merit is hereby dismissed with cost throughout and respondent/plaintiff is also held entitled to receive rental of her share since filing of the suit till handing over possession of the land to her.