' This regular second appeal arises out of a suit for possession of land and payment of compensation instituted by the respondent against the petitioner, the relevant facts of which are as under:- ' Mst. Balqis Begum appellant is the niece of Ali Sher respondent. After the death of her father Chiragh Din, her mother Mst. Bassi contracted marriage with the respondent but after sometime in 1968 he divorced her. According to the respondent after the divorce his relations with Mst. Bassi and the appellant were strained. On 26-5-1974 Mst. Bassi, Jamal Din, husband of the appellant and his brother Kamal Din in collusion with the Patwari got a report recorded in the Roznamacha that land measuring 28 Kanals 4 Marlas situated in Chak No,296 R.B. Tehsil and District Faisalabad owned by the respondent had been transferred to the appellant under an oral gift. On the basis of the aforementioned report Mutation No,374 giving effect to the oral gift was sanctioned by the Revenue Officer on 11-6-1974. On 27-7-1974 All Sher respondent instituted the suit, out of which the present R.S.A. Has arisen, contending that Mutation No,374, dated 11-6-1974 was illegal as it was sanctioned in his absence and was the result of fraud. He sought possession of the suit land and prayed for payment of compensation by the appellant for the period the land had remained in her illegal possession.
2. The suit was contested by the appellant. She controverted the respondent's allegations and pleaded that the respondent himself had transferred the suit land to her under an oral gift and that he had reported the factum of gift to the village Patwari and had admitted the same when he appeared before the Revenue Officer at the time of attestation of the mutation. She denied the respondent's allegation that her relations were strained with him after he had divorced her mother Mst. Bassi. The appellant also challenged the valuation of the suit for purposes of court-fee. From the pleadings of the parties the learned trial Court framed the following issues: -
(1) Whether the plaintiff is estopped to bring this suit? O.P.D.
(2) Whether the suit has not been properly valued, if so what is the correct valuation? O.P.D.-1.
(3) Whether the plaintiff has no cause of action? O.P.D.
(4) Whether the plaintiff had made a valid gift of the suit land in favour of the defendant and gift Mutation No,374, dated 11-6-1974 was validly attested in favour of the defendant? QED.
(5) Relief.
3. On 22-10-1975 the following additional issue was also framed by the learned trial Court:- "4-A. Whether the alleged gift by the plaintiff in favour of the defendant through Mutation No,374, 11- 6-1974 is fictitious, forged, based on fraud, male fide and in connivance of the Revenue Staff and is ineffective against the rights of the plaintiff? O.P.P."
4. The learned trial Court recorded the evidence of the parties. After considering the evidence and hearing the parties' counsel the learned trial Court found issues Nos.1 to 3 against the respondent.
Issue No,4 was decided against the appellant, while issue No,4-A was found in respondent's favour.
As a result of the above findings the learned trial Court decreed the respondent's suit with regard to possession of the land but rejected his claim for payment of compensation vide judgment, dated 28-4-1979. The appellant preferred an appeal against the judgment and decree of the learned trial Court but the same was dismissed by the learned Additional District Judge, Faisalabad on 4-10-1982. The appellant has challenged the judgments and decrees of the Courts below by filing the present regular second appeal in this Court.
5. Learned counsel for the appellant has submitted that the conclusion arrived at by the learned trial Court while deciding issue No,4 is not sustainable as the alleged irregularities committed by the revenue officials in the matter of attestation of Mutation No,374 do not affect the validity of the gift of the suit land made by the respondent in favour of the appellant because the three essential requirements of a valid gift under Muslim Law i.e. Declaration by the donor, acceptance of gift by the donee and delivery of possession of the subject-matter of the gift to the donee are amply fulfilled.
6. Learned counsel for the respondent, on the other hand, has contended that apart from the irregularities noticed by the learned trial Court, which are quite material and cannot be ignored, the factum of gift of the disputed land by the respondent in favour of the appellant is not proved by any evidence. There was no basis or any consideration for the respondent to transfer his entire land to the appellant after he had divorced her mother Mst. Bassi.
7. On going through the record it has been noticed that the Courts below have attached too much importance to the procedure followed by the revenue officials in the attestation of Mutation of gift of the suit land. After noticing some irregularities committed by them the Courts have reached the conclusion that the respondent had not made gift of the suit land in favour of the appellant. The learned trial Court has noticed that the provisions of section 42(1)(b) and (c) of the Punjab Land Revenue Act, 1967 were not complied with by the revenue officials. According to subsection (1) a person acquiring any right in an estate as a land-owner is required to report his acquisition of right to the Patwari. In the instant case, the appellant who claimed to have acquired the suit land by gift did not make any report to the Patwari. Under clause (b) of subsection (1) of section 42 the Patwari was required to furnish copy of the report to the person making the report. Similarly under clause
(c) of subsection (1) of section 42 the Patwari had to forward a copy of the report to the Union Council concerned. Both the aforementioned provisions were not complied with by the Patwari.
Similarly the provisions of subsection (7) of section 42 were not duly complied with by the officer who attested the Mutation of gift because one of the persons who identified the donor was not Khewatdar of the estate within which the suit land was situated. Relying on the decision of the Federal Land Commission in State v. Faqirji and another PLD 1975 Rev.80 and Mst. Jaman v. Dilwar and others PLD 1978 Rev.13 decided by the Board of Revenue the learned trial Court has held that the gift of the suit land by the respondent in favour of the appellant is not proved and that the Mutation of gift sanctioned by the Revenue, Officer on 11-6-1974 is illegal and ineffective against the respondent's rights in the suit land. The learned first appellate Court also took note of the above irregularities and affirmed the finding of the learned trial Court. The other consideration which has weighed with the Courts below in holding that the gift of the suit land by the respondent in favour of the appellant is not proved is that after the respondent had divorced Mst. Bassi, the mother of the appellant, no basis was left for him to transfer his entire land to the appellant.
8. There is no doubt that the respondent had also challenged the validity of the mutation of gift while seeking declaration of his title to the suit land. But the real controversy between the parties was whether the respondent had made a gift of the suit land to the appellant or not. As the mutation is not considered as a document of title, the irregularities committed by the revenue officials while attesting the mutation are of no consequence. Reference in this connection may be made to Manzoor v. Hakim Khan 1979 CLC 276 where it was held that the report of the Patwari and the mutation thereof were not the documents of the title and the defect if there was any, did not affect the creation A of the gift. The irregularities noticed by the trial Court regarding the report made to the Patwari and the identification of donor at the time of attestation of the mutation of gift should not have been taken int consideration by the Courts below while determining the question whether the suit land had been transferred to the appellant through a gift. The evidence produced by the appellant in support of her claim of being a donee of the suit land has not been considered in its tru perspective by the Courts below. Nazir Ahmad, Patwari, who appeared as P.W.6 and D.W.3 made a categorical statement that the respondent had declared before him that he had transferred the suit land to the appellant under a gift. He had also stated that he had transferred the possession of the land to the appellant. The above statement regarding B delivery of possession of the suit land was supported by Ghulam Hussain D.W.5, whose father used to cultivate the suit land as tenant but on account of old age had surrendered his tenancy in favour of his son.
He stated that after the gift of the land by the respondent in favour of the appellant the share of produce was being regularly paid to the appellant. The above evidence was sufficient to prove the factum of gift.
9. In view of the positive evidence produced by the appellant t prove the factum of gift, the Courts below should not have attached much importance to the non-compliance of certain provisions of section 42 of the Land Revenue Act, 1967 by the revenue officials because non-observance of the prescribed procedure by them in the attestation of mutation would not disprove the transaction incorporated in the mutation. Irregularities committed by the revenue officials in sanctionin the mutation may justify interference by the appellate authority in appeal under section 161 and by the Board of Revenue in revision under section 164 of the Land Revenue Act. The civil Court, need not take notice of such irregularities while deciding the question of title as the determination of the question of title does not solely rest on the entries in the mutation.
10. The presence of the respondent before Haji Makhtar Ali D.W.2 at the time of attestation of the mutation of gift is proved by the statement of Faiz Muhammad D.W.4 who is Lambardar of the revenue estate in which the suit land is situated. He had identified the respondent at the time of attestation of the mutation of gift. Being a disinterested witness, there is no reason to discard his testimony. Thus, even if the identification of the respondent by Jamal Din the other witness, who happens to be the brother of the appellant's husband and is not owner of land in the revenue estate in which the suit land is situated is left out of consideration, it is fairly established by the deposition of Faiz Muhammad D.W. That it was the respondent who had appeared before Revenue Officer and had admitted the factum of gift at the time of attestation of the mutation. The fact that the parties were not personally known to the Revenue Officer (Haji Mukhtar All D.W.2) as stated by him is also of no consequence as he had attested the mutation after satisfying himself as to the identity of the donor by the Lambardar of the estate in which the land was situated.
11. One of the contentions raised by the respondent before the Courts below was that after he had divorced the mother of the appellant no basis was left for him to transfer his land by gift in favour of the appellant. This contention seems to have been accepted by the Courts below without keeping in view the fact that the appellant's relationship with the respondent was not merely through his divorced wife Mat. Bassi but she was the daughter of his deceased brother and had been living with him after the death of her father till her marriage. The Courts below also do not appear to have taken notice of the fact that the expenses on the appellant's marriage were also borne by the respondent as admitted by his witnesses. The mere fact that the respondent had divorced the appellant's mother does not lead to the conclusion that he had also severed his relations with the appellant. It is in evidence that the respondent is issueless. The transfer of the suit land by him by gift to his niece, who otherwise would have also succeeded him after his death, therefore, cannot be considered improbable.
12. The upshot of the above discussion is that this appeal is accepted. The findings of the learned trial Court under issues Nos.4 and 4-A as affirmed by the learned first appellate Court are reversed and as a result thereof the respondent's suit is dismissed with costs.