Some 25 years ago now, one Bhagoo died leaving behind 30 Kanals 17 Marlas of land and a widow Mst. Allah Wassai, a son Muhammad Yar, the petitioner and four daughters, Mst. Qaim Khatoon, the respondent, Mst. Rehmat, Mst. Zainab and Mst. Pairan as his heirs. On 21-3-1978 Mst. Qaim Khatoon respondent filed a suit for declaration to get Mutation No.196 sanctioned on 21-1--1967, with regard to gift of land in favour of Muhammad Yar; annulled as being illegal, contrary to facts, void and ineffective on account of fraud and misrepresentation as also her ignorance. Petitioner defended the suit by pleading that the plaintiff and her other sisters, along with their mother, had voluntarily gifted to him the land fallen to their shares on the basis of inheritance. He also raised some technical objections in opposition of the suit which was consequently set down to be tried on a total of nine issues (inclusive of the relief) wherein the last three bearing Nos. 7-A and 7-B alone related to the merits of the suit and the gift pleaded by the respondent, the onus where about was placed on him. Parties led their evidence for and against the relevant issues wherein the defendant concentrated his attention on trying to prove the plaintiffs appearance before the Revenue Officer for the sanctioning of the impugned mutation.
After attending to the evidence of the parties, learned trial Judge was not satisfied with the trustworthiness of the defendant's witnesses on account of his fetternal ties of relationship with those witnesses and inconsistencies in their depositions. He found that there had not been led any evidence to prove the factum of gift and much less any to prove its ingredients. In result, by his judgment dated 24-10-1983, learned Judge decreed the suit of the plaintiff by disbelieving the assertion with regard to gift and also repelling the contention that estoppel stood in the way of her suing for the land.
2. An appeal there against filed by the defendant was considered by the learned District Judge who, after re-appraisal of the entire evidence existing on the record, affirmed the findings of the trial Court and upheld its decree into dismissing the appeal by his judgment dated 27-3-1984.
3. The defendant has now maintained this second appeal which, apart from the difficulty of being faced with concurrent findings of fact justified on the record reached by the two Courts below against the defendant with regard to questions of pure fact, suffers also from the absence of proof with regard to any gift made in favour of the defendant. Learned counsel has conceded that there is no direct evidence available on the record with regard to the gift propounded by the defendant beyond some vague statements of inconclusive nature made by some of his witnesses to the effect that talk about the gift had taken place in the village. Such evidence cannot be capable of entailing a finding in favour of the existence of gift set up by the defendant and the same cannot even be inferentially concluded to have been made in his favour by the ladies of the house, some of whom are clearly more interested in him on account of additional ties created by the bondages of marriages between their children. Such evidence has been rightly disbelieved in face of heavy onus of proof lying on the defendant to prove validity of the transaction claimed by him to have been made by a lady the plaintiff, and much less can her alleged appearance before the Revenue Officer though rightly disbelieved by the two Courts below on the basis of record, be capable of becoming the substitute of the gift itself even upon its being somehow accepted as correct because a mutation only incorporates existing transactions which are usually completed earlier and do not themselves partake of such transactions themselves. Neither may her such an appearance before the Revenue Officer and resultant sanctioning of mutation (even if it may have been in her presence) become a proof of the gift itself which had to be proved by the defendant as a fact for discharging the onus of proof thereof laid under issue No.6 nor can it have the effect of creating estoppel against her which, by its very nature, is a change of position by another to his disadvantage on the basis of belief in the correctness of the representation made to him.
Obviously enough nothing of the kind can be involved in such a sanctioning of a mutation and hence the defendant cannot possibly succeed on issues No.5 or 6 on the basis of the present record. The two Courts below have rightly adjudged the case against the defendant and no valid exception can be taken thereto.
4.Result of the above analysis is that there is not found to exist any case within the scope of Section 100 of the C.P.C. To entail interference by this Court.
This Second Appeal has no force and it is accordingly dismissed. However, there is no order as to costs.