' ZIA MAHMOOD MIRZA, J.---Petitioner through this petition seeks leave to appeal against the judgment of a learned single Judge of Lahore High Court, Rawalpindi Bench, dated 9-5-1994 dismissing the petitioner's revision petition (C.R. 282 of 1994) directed against the judgments and decrees of the Courts below whereby suit of the plaintiffs/respondents was decreed.
2. Facts necessary for the disposal of this petition briefly are that the respondents brought a suit to challenge the validity of a gift of landed property measuring 62 Kanals 19 Marlas said to have been made by Mst. Bhag Bhari in favour of Said Amir petitioner vide Mutation No, 75 sanctioned on 17-3- 1981. The mutation in question was entered on 15-3-1981 and placed before the Tehsildar in the Office of the Union Council on 16-3-1981, on which date, the Tehsildar was stated to have recorded the statement of Mst. Bhag Bhari who was identified by Gul Sher Khan Lumberdar and Ghulam Shah, a real uncle of the petitioner. The mutation, however, was sanctioned on 17-3-1981 as the requisite fee was deposited on that date. It was alleged by the plaintiffs that Mst. Bhag Bhari made no gift in favour of the petitioner nor did she appear before the Patwari or Tehsildar. According to the plaintiffs, Mst. Bhag Bhari was admitted in the Christian Hospital, Taxila on 16-3-1981 as she had a Cancerous tumour in her stomach. Her condition allegedly deteriorated on 16-3-1981 and she was taken to and admitted in the Hospital on the same day where she died on 22-3-1981 after operation. Case of the respondents was that the mutation in dispute was got attested by the petitioner through fraud, forgery and impersonation. Respondents claimed that Mst. Bhag Bhari was unmarried and they were her only legal heirs.
3. Petitioner contested the suit and controverted the allegations made by the plaintiffs. He asserted that Mst. Bhag Bhari with her free will and consent gifted the suit land to him and that she herself appeared before the Revenue Officer and admitted the factum of gift. Pleadings of the parties gave rise to the following issues:-
(1) Whether the impugned mutation dated 17-3-1981 was procured through impersonation and fraud? OPD.
(2) If the above issue is not proved whether Mst. Bhag Bhari was in state of Marz-ul-Maut and if so its effect on the impugned mutation? OPP.
(3) Whether the plaintiffs are the legal heirs of Mst. Bhag Bhari deceased? OPD.
(4) Whether the suit is bad for non-joinder of necessary parties? OPD.
(5) Whether the impugned mutation is in operative upon the reversionary right of the plaintiff, if so to what extent?
(6) Whether the defendant is entitled to special costs?
(7) Relief.
4. Both the parties led evidence, oral as also documentary, in support of their respective contentions. Learned trial Judge after considering the evidence in some detail ruled out "the possibility of a seriously ill lady appearing before the Revenue Officer, particularly on a day when she is being taken to the hospital, for gifting her property to a person who was not closely related to her and to whom she was not under any obligation too." It was also noted that there was nothing on the record to show that the petitioner had rendered any services to Mst. Bhag Bhari or that she had any special love and affection for the petitioner. Precise finding recorded by the learned trial Court was that "The mutation was entered at the back of Mst. Bagh Bhari and it is fully proved and established that on 16-3-1981 she was seriously ill and was taken to the hospital, therefore, there was no question of her appearing before the Revenue Officer in that state of health. The presence of Mst. Bagh Bhari in the whole transaction i,e. From the entering of the mutation uptil its attestation is not concretely proved. Rather it is established that the defendant and D.W.3 being closely related to each other took advantage of the sickness and absence of Mst. Bagh Bhari and by playing foul play got the mutation in question attested and sanctioned by way of impersonation and by deceitful and fraudulent means. Mst. Bagh Bhari is not proved to have taken part in it personally."
Issue No, 1 which epitomizes the controversy between the parties was accordingly found in favour of the plaintiffs and their suit was decreed by the trial Court vide judgment dated 31-1-1988 with the observation that the impugned mutation is inoperative and ineffective qua the reversionary rights of the plaintiffs.
5. On appeal, the learned Additional District Judge after re-appraising the relevant evidence on the record affirmed the findings and the reasoning of the trial Court and further observed that it was an admitted fact that the mother of Mst. Bhag Bhari was alive when the impugned was made and even thereafter and that there was no good reason forthcoming from the record as to why she should give away her entire property to the petitioner completely ignoring her own mother. Learned Additional District Judge also held that in the facts and circumstances of the case "chance of fraud, forgery and impersonation during the conduct of the proceedings of the impugned mutation cannot be excluded." Petitioner's appeal was thus dismissed by the Additional District Judge on 22- 2-1994.
6. Feeling aggrieved, petitioner took the matter in revision but with no better result as the same was dismissed in limini by a learned single Judge of the High Court vide the impugned judgment holding that the two Courts below after scanning the entire evidence recorded concurrent findings of fact regarding the impugned transaction of gift which were not liable to interference in revisional jurisdiction as no misreading or non-reading of evidence was pointed out by the petitioner. The learned Judge also scruitinized the evidence himself and affirmed the findings of the Courts below with the observation, "It does not appeal to reason that a woman suffering from serious ailment like cancer being taken to Hospital will appear before the Tehsildar for the purpose of transfer of her property and that too through an oral gift in favour of a non-heir. It appears that the Lumberdar as well as his uncle, who were not her lawful heirs, have made an effort to grab her property in collusion with Patwari Halqa as well as the Tehsildar, who attested the mutation. The transaction in question on the face of it appears to be a sham, therefore, mutation of gift in question has rightly been held so by the two Courts below.." It was further held by the learned Judge that as the transaction relied upon by the petitioner was allegedly made in his favour by an illiterate woman, the onus lay on him to prove that the transaction reflected in the mutation had really taken place and that at the time of effecting the alienation, Mst. Bhag Bhari had independent advice available to her and she acted of her own free will. The learned Judge took the view that the petitioner had not produced any cogent evidence to establish the transaction of gift and no evidence at all was led to prove the delivery of possession and that there was absolutely no evidence of independent advice being available to Mst. Bhag Bhari at the time when she allegedly appeared before the Tehsildar and made statement on 16-3-1981.
7. We have heard the learned counsel appearing in support of this petition. He has contended that while appreciating the evidence, the learned Judge of the High Court and the Courts below failed to give proper weight to the statement of Ghulam Shah D.W. 3 who had supported the factum of gift although it went against his interest. According to the learned counsel, Ghulam Shah was a prospective heir of Mst. Bhag Bhari being her maternal uncle and in the absence of the gift in question he would have inherited 1/3 share in the suit land on the death of Mst. Bhag Bhari's mother who had died before Ghulam Shah made the statement in Court. On our query, the learned counsel has admitted that there is nothing on the record to show that Mst. Bhag Bhari's mother had no sons surviving her. That being so, it cannot be legitimately argued that Ghulam Shah would have inherited a share in the suit land if it had not been gifted away. The argument is built on a premises having no basis on record. Even otherwise, the contention raised by the learned counsel relates to the appreciation of evidence which cannot be undertaken in exercise of revisional jurisdiction though in the instant case, the learned Judge of the High Court duly considered the evidence on record and after proper appraisal thereof upheld the findings of the Courts below. The matter in fact stood concluded by concurrent findings of fact recorded by the trial Court and the appellate Court and the learned Judge of the High Court was right in holding that no case was made out for interference in revisional jurisdiction as the learned counsel appearing for the petitioner was unable to point out any mis-reading or non-reading of evidence.
8. Learned counsel for the petitioner also sought to contend that in view of the finding of the learned Judge of the High Court regarding the gift in question having been made during the Marz- ul-Maut of Mst. Bhag Bhari, it should have been given effect to as a will. We find no merit in this contention as it has been found as a fact that no gift was made by Mst. Bhag Bhari and it was only a sham transaction. No other point has been argued by the learned counsel.
9. In view of what has been said above, no interference is called for by this Court. Leave sought is accordingly refused and the petition dismissed.