' The facts giving rise to this case are that Mst. Sultana Razia Begum widow of Nawab Major Talib Mehdi Khan gifted a residential plot measuring 5-Kanals out of Khasra No,71, a bungalow situated at 3-Civil Lines, Jhelum, in village Khawaspur, Tehsil Jhelum, but within the limits of Jhelum Municipal Committee in favour of Mst. Nirmala Mehdi, widow of Raja Ghulam Mehdi, through registered deed dated 6-4-1960. Mutation No,226 was entered but was cancelled by the Revenue Officer. Thereafter, the petitioner moved an application and Mutation No,366 was entered but again cancelled on 24-12-1975 on the ground that transaction was hit by the provisions of MLR 115.
Subsequently, some illegalities allegedly came to the notice of the Deputy Commissioner/Collector and he allowed the review of Mutation No,366 vide his orders dated 17-12-1979 and 20-1-1980. That order was challenged by the respondents in appeal before the Additional Commissioner (Revenue) which was rejected on 240-1980.
2. In pursuance of Deputy Commissioner/Collector's order dated 20-1-1980, the AC-I/Tehsildar again rejected the mutation on 29-8-1981, by saying that possession of the gifted land was not delivered to the petitioner. The petitioner challenged that decision in appeal before the Assistant Commissioner/Collector who dismissed the same on 26-5-1982. Thereafter, the petitioner went in revision before the Additional Commissioner (Revenue) which was dismissed Nide his impugned order dated 18-12-1982. Hence this revision petition under section 164 of W.P. Land Revenue Act, 1967.
3. The learned counsel for the petitioner contended that a Revenue Officer cannot refuse implementation of a registered document for the purposes of attesting a mutation and in this regard he cited PLD 1964 West Pakistan Rev.77. According to him, the Revenue Officer should have implemented the registered gift deed. If the respondents were aggrieved, then they should have tried to have the gift deed set aside. Reference to Civil Court was unnecessary for this purpose as the revenue authorities have to do their own duties as held in 1985 M LD 924; PLD 1950 Punjab 144 and PLD 1954 Punjab 60. A valid gift was made by the donor and the respondents were estopped as their father Raja Afzal Mehdi, i,e,, the donor, was a signatory to the gift deed. It was therefore prayed that the impugned order may be set aside.
4. The learned counsel for the respondents maintained in rebuttal that the gift deed dated 6-4- 1960 was not a conclusive proof of the delivery of possession of the concerned property. The delivery of possession was one of the three essential ingredients of the gift. The first mutation (No,226) was rejected on 7-5-1963 on the basis of non-delivery of possession. No appeal, revision or review was filed against that order which thus became a closed and past transaction. The petitioner again approached the Revenue Officers on 16-8-1975 after 12 long years, without explaining the delay. Mutation No,366 was entered but again she was not found in possession. MLR 115 was not applicable to this case. The petitioner again kept quiet against rejection of the Mutation No,366 for four years and in 197 the Deputy Commissioner/Collector took suo motu notice without saying it so in his order. The petitioner at no stage had claimed that she enjoyed possession of the land. The learned counsel referred to section 149 of Mulla's Mahomedan Law and 1972 SCM R 50 (the learned counsel for the petitioner at this stage objected that this citation related to proceedings in the Civil Courts). The judgments of the Supreme Court take precedence over the rulings of the Board of Revenue as laid down in Article 189 of the Constitution of Pakistan. A mere recital in a gift deed was not a conclusive proof of possession as held in PLD 1956 SC 309. It is for the petitioner to prove her possession and she ultimately preferred a c. It suit in June 1982 which was dismissed on 11-11-1984 as withdrawn. No fresh suit had been filed thereafter and any fresh proceedings therefore would be hit by res judicata. The Collector's order dated 17-12-1979 was apparently not made on suo motu consideration under section 163 of West Pakistan Land Revenue Act. No notice for hearing was given to the respondents and the order was thus without lawful authority. According to record, the petitioner had never been in possession as is evident from the Collector's order dated 26-5- 1982 and the petitioner had come up against the concurrent findings of the three Courts below. The Board of Revenue had always declined to interfere in the concurrent findings of the Courts below without any exception. It was therefore prayed that the revision petition may be dismissed. S. The learned counsel for the petitioner, exercising his right of reply with the permission of the Court pointed out that if the concurrent findings of the Courts below were against law, then these must be set aside by the revisional authority and that sanction for review of the mutation was given by the Deputy Commissioner/Collector, Jhelum, under section 163 of the Land Revenue Act; hearing of the parties was not necessary while granting permission to review.
6. I have considered the arguments and perused the case record. The most important and, in fact, the crucial point involved in this case is the question of possession. The three essentials of a gift laid down in section 149 of the Mulla's Mahomedan Law are as follows:-- "(i) a declaration of gift by the donor;
(ii) an acceptance of the gift, expressed or implied, by or on behalf of the donee; and
(iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150.
' If these conditions are complied with the gift is complete."
' Section 150 ibid, deals with the delivery of possession and is reproduced hereunder:-
150. Delivery of Possession.--(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, 'the taking of possession of the subject-matter of the gift by the donee, either actually or constructively', is necessary to complete a gift.
(2) Registration.--Registration of a deed of gift does not cure the want of delivery of possession.
(3) If it is proved by oral evidence that a gift was completed as required by law (Ss.149 and 150), it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act.
(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor. But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a father or guardian--section 156) was on the facts held to be insufficient to support a gift as against the heirs of the donor."
It is thus evident from subsections (2) and (4) above that registration of a deed of gift does not cure the want of delivery of possession and mere recital in the gift deed that the possession had been delivered is not enough.
7. In view of the importance of the question of possession, the learned counsel for the petitioner was requested to file additional information and clarifications. It was stated by him in writing that the gift pertained to land measuring 5 Kanals out of Khasra No,71 which was a part of the residential Bungalow No,3, Civil Lines, Jhelum, with a total area of 19 Kanals 3 Marlas, hounded by a pacca boundary wall. The entire bungalow was rented out to the Executive Engineer in 1960 and thereafter in the year 1965 it was given on rent to the Education Department where presently Normal School for Boys is functioning. The learned counsel also filed an attested copy of forms PT.I regarding Property No,B-I-297 (i,e, the entire bungalow) for the years 1960- 61/and 1965-66 which mention the names of Mst. Sultana Razia and the petitioner widows of Malik Nawab Talib Mehdi Khan in the ownership column. However, the division of the property was not shown and the learned counsel did not file any document to show or suggest that the petitioner had been receiving the rent or part thereof of the said property from its occupants.
8. The learned counsel for the petitioner has mainly relied on the gift document regarding transfer of possession. Since the registration of the gift deed, the petitioner did not take any steps which would prove her possession, whether physical or constructive, over the property gifted to her in so far as she did not raise any wall on the part of the property gifted to her to separate it from the main bungalow and as has been seen in paragraph 7 above she also did not produce any document for receiving the rent of the property. She apparently also did not take any steps to have a house constructed thereon which was the stated purpose of the gift and is duly recited in the gift document. The contention of the learned counsel for the petitioner regarding estoppel due to respondents' fathers being a signatory to the gift deed can only be considered when the gift is found to be complete in all respects.
9. The question of possession of the petitioner on the basis of entries in the Revenue Record, i,e,, khasra-girdawari and the record-of-rights is required to be examined. The contention of the learned counsel, for the petitioner during the course of the arguments was that no presumption of truth was attached to khasra-girdawari. While this is the legal position, yet this record i,e, khasra girdawari in itself can be used to corroborate other pieces of evidence. Taken together with the record-of-rights, it is one of the most important and arguably the most formidable pieces of evidence to prove possession or otherwise. Indeed a Revenue Officer has to start from and base his findings upon this record while determining question of possession. The disputed property lies within the Municipal limits and the learned counsel's contention that no field inspection takes place in the Municipal limits, is not correct. In fact, wherever there are large tracts of land in Municipal limits, as is the case in the Civil Lines Jhelum, and such land is cultivated for agricultural purposes, harvest inspections do take place. These khasra girdawaris or field inspections are incorporated into the record-of-rights after 4 years, then presumption of truth is attached to this record. During the past thirty years or so there is no entry in the khasra girdawari or the record of-rights to substantiate petitioner's contention of possession over the gifted property. Thus, the petitioner's case fails on this score also.
10. The argument of the learned counsel for the petitioner regarding the role of the revenue authorities in attesting a mutation on the basis of a registered deed is only partly correct; it is so when the facts are not disputed.
In the case of a gift under Muslim Law the question of possession is essential for completion of the gift. As has been seen earlier no steps seem to have been taken by the donor to complete the gift in favour of the petitioner as embodied in section 152 (1) and (2) of the Mulla's Mahomedan Law.
The donor and the donee were not residing in that property at the time which is stated to be in the occupation of tenants and the donor never made any request to the tenants to pay rent of the gifted part of the property to the donee and no mutation was entered at that time in the Revenue Record. The first mutation was rejected in 1963. The question of possession is therefore disputed.
Under section 42(6) of the Punjab Land Revenue Act, 1967, it is mandatory for a Revenue Officer to enquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and the Revenue Officer shall in each case make such order as he thinks fit. This provision of law therefore duly vests the Revenue Officer to look into the entries in the mutation register entered even on the basis of a registered deed and make appropriate orders. A Revenue Officer has not merely to follow a registered deed but has also to enquire into the correctness thereof. I, therefore, hold that the Revenue Officers had acted within the law by rejecting Mutations Nos. 226 and 366.
11. This now brings me to the order of review passed by the Collector under section 163 of the Land Revenue Act, dated 17-12-1979. The Collector's order does not mention the source of his information.
Even if this order is treated as made under section 163 of the Land Revenue Act, it obviously suffers from lack of consideration of the question of limitation. From the wordings of the first sentence of this order, "It has been brought to my notice that , it cannot be said to be a suo motu order of review because the source of information appears to be extraneous and this information did not come to the notice of the learned Deputy Commissioner during the inspection of the record etc. Anyway this order did not result in any change as far as Mutation No,366 was concerned.
12. The point of revision against concurrent findings of three Courts below raised by the learned counsel for respondents is valid but the Board of Revenue consider all petitions brought before them on their merits, on case to case basis, and do not reject a petition solely on the ground of concurrent findings of the Courts below. This is especially so when rights in property are involved and in cases where important questions of law and fact are raised before the Board.
13. The upshot of the foregoing discussion is that I do not see any reason to interfere with the impugned orders and dismiss the revision petition accordingly.