Through this civil revision, the petitioner has challenged the judgment, dated 18-12-1994 passed by the learned Additional District Judge, Khanpur vide which the appeal filed by the respondent- plaintiff against the judgment and decree, dated 22-2-1993 passed by the learned Civil Judge, Khanpur, was accepted and the suit filed by the appellant was decreed in her favour.
2. Brief facts leading to the filing of this civil revision are that the respondent-plaintiff instituted a suit against the petitioner-defendant for a declaration that she was owner in possession of suit land measuring 5 Kanals and 6 Marlas situated in Mauza Fareed Abad as detailed in the head note of the plaint and that mutation of Tamleek No.103 sanctioned on 14-12-1980 was bogus, collusive, void and inoperative against the rights of the respondent---plaintiff. It was averred in that plaint that the suit land was inherited by her from her father and it was part of the joint holding which was in possession of petitioner-defendant being her brother and he used to pay the share of the produce to her. Two months prior to the institution of this suit, it was alleged, the petitioner- defendant started denying the title of the respondent-plaintiff qua the suit land. When the record was checked, it transpired that the petitioner-defendant had got sanctioned the impugned mutation in his favour.
3. The suit was contested. In terms of the written statement filed by the petitioner-defendant, following issues were framed:--- "(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the plaintiff is estopped to file this suit? OPD
(3) Whether the defendant is in possession of the suit land on behalf of the plaintiff? OPP
(4) Whether gift Mutation No.103, dated 14-12-1980 is void and ineffective against the rights of the plaintiff? OPP
(5) Whether the plaintiff is entitled for consequential relief of perpetual injunction as prayed for?
OPP.
(6) Whether, suit of the plaintiff is false and vexatious and the defendant is entitled to compensatory costs, if so, its extent? OPD (6A) Whether the suit is time-barred? OPD
(7) Relief."
4. During trial, the respondent-plaintiff produced P.W.1 Bashir Ahmad (her son), P.W.2 Muhammad Bakhsh (her son-in-law) and she herself appeared as P.W.3. Copy of the impugned mutation was produced as Exh.Pl and copy of Jama Bandis are Exh.P2 to Exh.P4. The evidence was to the effect that Mst. Rahiman never appeared before any Revenue Officer in connection with the mutation in question. The petitioner-defendant, on the other hand, produced D.W.1 Ghulam Muhammad, D.W.2 Maula Bakhsh and he himself appeared as D.W.3 Exh.Dl was also produced which is the impugned mutation. D.W.1 Ghulam Muhammad is a witness who is shown to be present when the mutation in question was attested. D.W.2 is Maula Bakhsh. He claimed to be present during the proceedings of mutation but unlike Ghulam Muhammad he is not mentioned as a witness in the impugned mutation.
5. The learned Additional District Judge, Khanpur, accepted the appeal filed by the respondent- plaintiff and set aside the judgment of the learned trial Court on the following grounds:---
(i) The respondent-plaintiff has categorically denied having gifted the property in dispute to the petitioner under any Tamleek or having appeared before the Revenue Officer or having affixed her thumb-- impression. It is also on record that she is an illiterate lady. In this view of the matter it was the duty of the petitioner-defendant to prove the 'factum of Tamleek through the impugned mutation. The petitioner-defendant could have produced the Revenue Officer, the Tehsildar or Patwari to prove the mutation in question or her thumb-- impression could have been sent to the Handwriting Expert for comparison. The petitioner-defendant failed to adopt either of the course.
(ii) Mutation by itself does not confer any title. It is a weak type of corroborative evidence.
(iii) The three essential ingredients of gift i.e. Offer, acceptance and delivery of possession must exist to constitute a valid gift in law. In the instant case, there is nothing in evidence that the respondent-plaintiff ever declared her intention to gif it the said property to the petitioner--- defendant.
(iv) Though Khasra Girdawari was brought on record to show that earlier possession of the suit land was with the respondent-plaintiff through her son. It has also not been explained as to why and under what special circumstances, the respondent-plaintiff gifted the property to the petitioner-defendant when she has her own children.
6. In support of this civil revision, the learned counsel for the petitioner has urged the following pleas: --
(i) That the finding of the learned Appellate Court is against the weight of evidence.
(ii) That D.W.1 and D.W.2 have categorically stated that the respondent---plaintiff have appeared before the Revenue Officer and they identified her.
(iii) That the respondent-plaintiff could have discharged the onus to prove that the petitioner- defendant was in possession of the suit land on behalf of the respondent-plaintiff prior to the impugned mutation.
7. The learned counsel for the respondent-plaintiff who was issued pre--admission notice has defended the judgment of the Additional District Judge, Khanpur, and has submitted that no credence can bye attached to the testimony of D.W.1 as he was neither a Lumberdar nor a close relative of the parties. He has wrongly been shown as a Lumberdar in Exh.Dl (the impugned mutation) but it is in evidence that he was not Lumberdar of the Mauza. Similarly, no credence can be attached to D.W.2 who is not shown as a witness in the impugned mutation. Both these witnesses admitted that during the proceedings of the alleged mutation, Mst. Rahiman did not say anything. This description of her demeanour shows that some other lady was produced as Mst.
Rahiman (respondent-plaintiff).
8. I have heard the learned counsel for the parties and have also gone through the record.
9. When the party alleges fraud with regard to a document the initial burden to prove the execution of the said document is on the party which is relying on the said document. Once this onus is discharged, the burden to prove the factum of fraud or undue influence shifts on the party which alleges fraud. To prove the execution of the impugned mutation, the petitioner---defendant besides himself produced only two witnesses. D.W.1 is mentioned as A a witness who claims to have identified respondent-plaintiff before the Revenue Officer. Surprisingly he has; been shown as Lumberdar as per Exh.D1 but during cross-examination he admitted that he is not Lumberdar.
Again D.W.2 is not related to either of the parties and claims to be present during mutation proceedings but he is not mentioned as a witness in the mutation. Both these witnesses admitted that during the mutation proceedings Mst. Rahiman did not speak. The misrepresentation of D.W.1 Ghulam Muhammad before the Revenue Officer that he is a Lumberdar and the non-mention of D.W.2 as a witness in those proceedings, despite his claim in Court to be present there, makes both these witnesses not worthy of much credit. The presence of Mst. Rahiman also becomes doubtful when both the afore-referred witnesses admitted that she kept silent during mutation proceedings.
The best evidence to prove mutation was Tehsildar, Patwari or the mother of three sisters who allegedly mutated their part of the inherited land in favour of the petitioner-defendant. None of these persons was produced to prove the impugned mutation. The petitioner-defendant, therefore, has miserably failed to prove the execution of the mutation in question.
10. As laid down in Mst. Noor Fatima and another v. Begum Bibi and another 1990 SCMR 629 a mere mutation does not create any right. Mutation or any entry in the records of right is only a piece of evidence and the transaction which has been evidenced through mutation has to be proved independent of it. In Naja and 2 others v. Shahmand and 4 others PLD 1985 Lah. 607 it was held: -- "Land Revenue Act, 1967 (W.P. Act XVII of 1967)---S.52---Records of Rights---Entries is---Evidentiary value of- --Held: Mutation being only piece of evidence, same not to take place of transaction itself nor to prove transaction per its own force."
Similarly in Ghulam Siddique v. Jameela 1989 MLD 3530 it was held: -- "Mutation of land procured by step-brother fraudulently and by keeping his step-sister in dark--- Would be illegal and inoperative on rights of sister---Held: Courts below were right in decreeing suit in favour of sister with declaration about illegality of mutation."
In Muhammad Amin v. Salamat Bibi 1988 MLD 2141, the afore--referred view was reiterated and it was observed as follows:--- "Mutation proceedings cannot be treated as substantive piece of evidence in a suit---Suit has to be decided on basis of evidence produced during trial of suit itself."
11. If the land or property of a Pardanashin lady or ignorant and illiterate woman has been transferred through a mutation or a document, the burden of proof qua the execution of the said document is on the person claiming title under the said document. In Mst. Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642, it was held as under:--- "----Question whether a lady is a Pardanashin lady is a question of fact---Burden of proof in respect of a document purported to have been executed by a Pardanashin lady affecting her right of interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act, and if she is illiterate, it must have been read over to her---Rule is also applicable to ignorant and illiterate women:"
12. For what has been discussed above, there is no material irregularity or illegality in the impugned judgment to warrant interference in the revisional jurisdiction of this Court. The judgment of the learned appellate Court is well --reasoned and is not against the weight of evidence on record. I find no merit in this petition which is hereby dismissed with no order as to costs.