1. ' This second appeal is by Ghulam Haider, a defendant in the suit and is directed against confirming judgment and decree, dated 23-1-1980 of Additional District Judge, Sahiwal. Facts giving rise to the litigation in brief are: Allah Ditta son of Nizam Khan was owner of agricultural land measuring 300 Kls. 1 M. Situated in Chak No,115/12-L, Tehsil and District Sahiwal. He breathed his last on 19-4-1973 at the age of 85 years and left behind three sons namely, Ghulam Haider, Ghulam Jafar, Feroze and four daughters namely Mst. Suban Bi, Mst. Rasoolan Bi, Mst. Bakht Bhari and Mst.
2. Saidan Bibi. There is no dispute about the date of death of the deceased and the heirs. On 25-3- 1973, Ghulam Jafar reported to the village Patwari that Allah Ditta had donated 2/3rd of his holding measuring 200 Kls. 1 M, to his three sons. On this report, Mutation No,143 was entered and sanctioned in favour of Ghulam Haider, Ghulam Jafar and Feroze on 26-3-1973, vide Rapat 287, dated 3-4-1973, Mutation No,144 was entered and the remaining land i.e. 100 Kanals was also mutated in favour of three sons. Mutation was sanctioned on 3-4-1973. Mst. Suban Bi alongwith Mst.
3. Rasoolan Bi and Bakht Bhari brought a civil suit to claim 3/10th share in the land of their father and alleged that Allah Ditta deceased prior to his death suffered from a serious stroke of paralysis which had totally incapacitated him. He could neither speak nor move about and was also deprived of his sense of understanding and comprehension. It was averred that Gift Mutations 143, 144, dated 26-3-1973, 3-4-1973 were based on fraud and misrepresentation and were solely intended to deprive the daughters of their due share in the inheritance. It was specifically pleaded that deceased had not appeared in the mutation proceedings and it was also alleged that deceased, at the time, mutations are shown to have been attested, was afflicted with death malady. On these allegations, correctness of gifts and mutations in which the gifts were given effect to, were challenged before the Civil Court. Alongwith the three donees, Mst. Saidan Bibi, the fourth daughter was impleaded as a defendant. As regards her, plaintiffs claimed that she was'entitled to 4/10th share in the suit property.
4. ' Defendants 1 to 3, in a joint written statement offered a common defence, and supported gifts in their favour. It was pleaded that the plea of Marzal Maut or Paralysis was incorrect and Allah Ditta deceased was ill for a week's time only. It was further urged that deceased was hale and hearty and himself appeared before .He Revenue Officer to donate his property. In para. 3 of the written statement, it was alleged that vide Mutation 143, Allah Ditta, had gifted 200 Kanals of land to defendants Nos. 1 and 2 (Ghulam Haider, Ghulam Jafar) and gift mutation was sanctioned on 26- 3-1973. As regards the remaining land, it was averred that Allah Ditta had donated the same to defendant No,3 (Feroze) on 3-4-1973 vide Gift Mutation 144. It was specifically pleaded that gifts were sanctioned in the relevant revenue estate i.e. Chak No,115/12-L. In the preliminary objections, defendants objected to the maintainability of the suit on the ground that the claim was not set forth in proper form. It was stated that plaintiffs were not in possession of the suit property and the suit for declaration simplicitor did not lie. Objection was also raised on ground be misjoinder of causes of action. On the pleadings of the parties, learned Judge of the trial Court framed issues, which for facility of reference are reproduced below:-
(1) Whether the plaintiff is in possession of suit land. If not, its effect ? O.P.P.
(2) Whether the suit is bad for misjoinder of parties and causes of action ? O.P.P.
(3) Whether the impugned mutations are based on fraud, or illegal, collusive and not binding on the plaintiff ?
(4) 'Whether Allah. Ditta deceased was of unsound mind and physically infirm to make the gift mutation ?
(5) Whether the gifts in dispute were made by Allah Ditta deceased during death-bed illness ?
5. ' In support of the claim set forth in the plaint, plaintiffs, relied on; the statements of Mumtaz Ahmad P.W. 1, Muhammad Aslam P.W.2, Saeed Alam P.W.3, Allah Bakhsh P.W. 4, Ghulam Raza P.W.5 and also relied on copy of Khasra Girdawari from Kharif 1969 to Rabi 1973 Exh. P.1, copy of death entry Exh. P.2, copy of Register Haqdaran Zamin pertaining to the suit property Exh. P.3, copies of Mutations 143, 144 Exh. P.4 and P.6 and copy of Roznamcha Waqiati Exh. P.S. As against this evidence, defendants relied on testimony of Ghulam Rasool, Khuda Bukhsh, Ahmad Khan, Muhammad Afzal, Ghulam Shabbir D.W.1 to D.W.6 and the statement of Ghulam Jafar defendant. On examination of the material placed before it, learned Juoge of the trial Court expressed opinion for plaintiffs and found in their favour vide his judgment and decree dated 1-4-1975. Under Issues Nos. 3 and 4, the Court, found that impugned mutations whereby entire holding of Allah Ditta was conveyed to his sons, were based on fraud and that the deceased at the time of- donations was incapable of making any such statement. Accordingly, gift mutations were set aside and were declared ineffective qua the-rights of the heirs of the deceased. Similarly issues Nos.1 and 2 were also found in favour of the plaintiffs. Issue No,5 was left undecided. Appeal against the decision of the trial Court was taken to the District Court by defendants 1 to 3. In course of the appeal, parties entered into a compromise.
6. On the basis of statements of Ch. Noor Ellahi Advocate, counsel for the appellants, Ghulam Jafar, one of the appellants and Ghulam Raza special attorney of the plaintiffs, appeal was allowed and plaintiffs were given agricultural land measuring 72 Kanals. Their suit relating to the remaining land was dismissed and the appellants, namely, the donees were declared owners to that extent. This decision was made on 8-1-1979 by Mr. Muhammad Ramzan Malik, learned Additional District Judge, Sahiwal. Ghulam Haider, one of the donees felt dissatisfied with the compromise decision and preferred his second appeal (R.S.A. No,71 of 1979) in the Lahore High Court. On the respondents side, Ghulam Jafar and Feroze were impleaded. On 18-6-1979 a learned Judge of this Court, allowed the appeal, set aside the compromise decision and 'remanded the case back to Mr. Inayat Ullah Cheema, learned Additional District Judge, Sahiwal. In course, of the hearing of the remand appeal, it appears that Feroze and Ghulam Jafar submitted an application and stated that they did not object to the decision of the trial Court, dated 1-9-1979 and had no objection if - their sisters were allowed their due share in the suit property. Learned Additional District Judge, after hearing counsel and examination of the record, did not find favour for Ghulam Haider appellant and after affirming the decision of the trial Court which dismissed the appeal on 23-4-1980. It is this decision of the appellate Court which is under challenge in second appeal at the instance of Ghulam Haider. It was admitted on 23-9-1980 and has come up for hearing before me today in presence of the counsel for the parties, I have examined the record and heard the counsel at length.
7. ' Mr. Muhammad Hussain Awan, Advocate appearing for the appellant addressed arguments on Issues No,1, 3 and 4. Issue No,2 was not pressed. Counsel contended that both the Courts below were guilty of error of misappreciation of evidence and consequently arrived at incorrect conclusions. It was submitted that there was adequate material brought on file .To show that Allah Ditta had appeared before the Revenue Officer on both the occasions and made confirming statement in support of the gifts and transfer of possession of the suit property in favour of his three sons. Counsel also argued that there was no tangible evidence to show that Allah Ditta at the time of making of gifts suffered from any infirmity which could have disabled him from appearing before the Revenue Officer and disposing of his property. Mr. Bokhari, counsel for the respondents submitted that both the Courts below have examined the evidence in depth and were in agreement to hold that valid gifts were not made by Allah Ditta deceased. Counsel submitted, that, the fact that the entire holding was transferred through two gift mutations, shortly before the death with an interval of few days, casts serious aspersion and doubts on the factum of gifts and also on their validity.
8. ' After hearing learned counsel at length and examination of the trial Court's record, I find that this appeal must be dismissed. Certain facts which are not in dispute may presently be referred to.
9. Allah Ditta was an aged person of 80/85 years at the time of his decease on 19-4-1973. First mutation was entered on 25-3-1973 and in this mutation Allah Ditta was shown to have donated 200 Kis. 1 M, 2/3rd share of his entire holding in favour of his three sons. In the order of the Revenue Officer, dated 26-3-1973 made on gift mutation, it is stated that Allah Ditta donor admitted the gift by signs/gestures ({{URDU TEXT}}). This obviously gives rise to an inference that he was unable to speak. Order of the Revenue Officer shows that the mutation was taken up and sanctioned in the Revenue estate (115/12-L), whereas the witnesses for the defendants are one in .Deposing that mutation was sanctioned at Sahiwal. Mutation No,144 was entered and sanctioned on 3-4-1973.
10. This mutation apparently is shown to have been sanctioned in the revenue estate but was, in fact, taken up and attested at Sahiwal like the earlier Mutation No,143. However, this time Allah Ditta was not shown to be suffering from any infirmity. In the written statement submitted on behalf of defendant, it was expressly pleaded that Allah Ditta had donated 200 Kanals to defendants Nos.1 and 2 namely, Ghulam Haider and Ghulam Jafar and the remaining land was given to Feroze in the second mutation. This stand of the defendants taken in the written statment was clearly belied by the gift mutations. In both the mutations, donees are all the three sons. If Allah Ditta was minded to donate his entire holding to his sons, no plausible reason is shown to exist as to why the device of two gift mutations with an interval of nine days only was adopted. He could have easily in one mutation dispose of his entire holding and given the land to his sons. Another equally important factor is that mutations were entered and sanctioned at Tehsll Headquarters whereas in accordance with the mandatory provision's of section 42 (6)(8) of Punjab Land Revenue Act, 1967, of which neither the parties nor the Revenue Officer could be presumed to be ignorant of, mutations were to be taken up for inquiry and sanctioned in the relevant revenue estate.
11. Admittedly none of the Lambardars of the revenue estate were present at the time of the sanctioning of gift mutations. There was ample evidence on record to show that deceased was not in a fit frame of mind on the dates he is shown to have parted with his land. Oral evidence supporting mental and physical incapacity of Allah Ditta at the time of alleged gifts, receives aaequate strength from the order of Revenue Officer passed on Mutation No,143 also. Courts of fact have examined the evidence, relevant circumstances and probabilities of the case and then found that no valid gifts were made by Allah Ditta. Two of the brothers namely, Ghulam Jafar and Feroze have retraced- their steps and conceded the claim of their sisters, leaving Ghulam Haider alone to fight for his own rights. Neither village Patwari, Girdawar or the Revenue Officer who passed orders on gift mutations were produced in defence to prove that Allah Ditta himself appeared and of his own free act and volition donated suit property. To my mind, making of gifts in the circumstances disclosed by evidence were deeply shrouded in mystery and were not beyond doubt. No doubt onus of proof regarding issues Nos.1 and 4 was placed on the plaintiffs by the trial Court, yet if the matter had been intelligently looked at, it was for the defendants/beneficiaries to prove that such gifts were made in their favour by their father. In saying so, I fee supported by the observations of this Court in Muhammad and others v . Sardul PLD 1965 W P Lah.
472. It may be profitable to refer t. Relevant observations appearing at page 481, where his Lordship Mr. Justice Muhammad Akram had this to say: "From this discussion it follows that entries in a duly sanctioned mutation not incorporated in a Record of Right or Annual record have no presumption of the correctness of the facts mentioned in them. At best, these are relevant under section 35 of the Evidence Act. They are admissible as evidence in the case and they do no more. They are entitled to weight depending upon the circumstances of each case. It may turn out that they are in accord with the general bulk of evidence on record. But it would be incorrect to suppose that they are sufficient themselves to place the initial onus of proof on the party disputing their correctness.
12. It is for the party who relies on any admission recorded in the order of the Revenue Officer sanctioning the mutation to prove that admission is affirmatively against its maker both as regards the identity of th maker and the contents of the statement attributed to him. This admission has to be proved like any other fact in issue. This initial onus of proof of the sale in the present case must, therefore, rest on the defendant." It seems that the sons of Allah Ditta afflicted by wordly avarice and greed managed and manoeuvred the mutations to deprive their real sisters of their valuable rights in the property left by their father. This observation of mine is simply supported by evidence on record. On the available record, it cannot be said that the gifts impeached in the civil suit were the free mental acts of Allah Ditta.-. Mr. Awan in course of his address realising that mutations suffered from irregularities, submitted that apart from mutations, there was evidence to support oral gift. I do not agree. No reliable evidence exists to hold that oral gifts had already been made by Allah Ditta and the mutations were merely their acknowledgments. Additionally no reason has been shown to exist for depriving the daughters of their due share. Accordingly, I do not notice any infirmity in the findings of the Courts below which could justify interference in second appeal. Lastly it was pressed hard by Mr.Awan that since the plaintiffs were not in possession of any part of the suit property, suit for declaratio simplicitor could not proceed. He referred to section 42 of the Specific Relief Act and laid emphasis on its proviso to press his point. However, this contention is also without substance. Mr. Bokhari, counsel for the, respondents submitted that Ghulam Jafar and Feroze after having conceded claim of Mst. Suban Bi and others have put them in possession of the property. In the circumstances, plaintiffs being co-heirs and in possession of part of property were not obliged to sue for joint possession. Frame of the suit was, therefore, not defective. For the foregoing reasons, I would uphold the decisions of the learned Judges of the Courts below and dismiss the appeal with costs.