' This Regular Second Appeal impugns two concurrent judgments of the Courts below. The suit was decreed on 24-2-1976 and the judgment and decree of the learned trial Court was upheld by the learned Additional District Judge, Sargodha vide his judgment and decree, dated 8-10-1977.
2. Mst. Sardaran, who is now represented by her legal heirs after her death, had filed a suit for declaration that she being the widow of Noor Muhammad was owner in-possession of 1/8th share of property located in Village Lak, Tehsil and District Sargodha. Additionally she claimed to be the beneficiary of 1/3rd share of the suit property on account of a will made by her husband in her favour. She also asked for perpetual injunction restraining Allah Bukhsh now petitioner from interfering into her possession.
3. The cause of action arose when she learnt about a gift allegedly made by her husband Noor Muhammad, transferring his entire land in the name of his son Allah Bukhsh from his first wife through Mutation No .36 of 21-4-1970.
4. Allah Bakhsh contested the suit and challenged the validity of gift. The learned trial Court had framed the following issues which are reproduce below in extensor:--
(1) Whether the suit is not maintained as alleged'? OPD.
(2) Whether Noor Muhammad (deceased) made a valid gift of the suit land in favour of defendant No,1 Allah Bakhsh and the plaintiff was a party to it? OPD.
(3) Whether Noor Muhammad (deceased) made any will in favour of the plaintiff, if so, what is its effect? OPP.
(4) To what extent, if any,. The plaintiff is entitled to? OPP.
(5) Relief.
5. The learned trial Court was of the view that the gift was void, created no rights and declared that Mst. Sardaran as widow of Noor Muhammad was owner-in-possession of 1/8th share. The learned trial Court did not believe the fact of gift.. He also granted perpetual injunction in favour of Mst.
Sardaran and against Allah Bukhsh restraining him from making any interference in her use and occupation of the land so declared. On the fact of the gift, the findings of the learned trial Court were:-- "In this respect I am supported by the abovementioned authority where his Lordship has further held that a mere recital in the gift deed that the possession has been delivered to the donee is not enough. The plaintiff has produced Exh.P.1, a copy of the 'Khasra Girdawari' for the crops Kharif, 1967 to Rabi, 1971, in these entries nowhere the name of the defendant No,1 either as the owner or a cultivator is mentioned. The assertion of the learned counsel of the defendant No,1 that it is the duty of the Revenue Officials to correct the entries in the Revenue Record is of no avail as it was indeed the duty of the defendant No,1 to have caused the fact of his possession and occupation of the land entered in the Revenue Record. His Lordship has further held in the above-quoted authority that 'it has never been that a simple declaration as to the delivery of possession in the deed of gift would effect a transfer of possession if land was in possession of tenant in the present case too, there is no evidence to show that the tenants of the land had attorned to the donees.
7. It has also been held in PLD '1964 (W.P.) Pesh. 159) that 'orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense to the inclusion of all claims of the other members of the family as co-owners or for maintenance or otherwise, as Revenue Authorities have no jurisdiction to pronounce upon the validity of such a claim.'.
' The mutation produced as the solitary and sole evidence by the defendant No,1 in the support of his claim of possession of the land in dispute is of no avail to him. None of the tenants is produced by the defendant No,1, who could depose that he has been giving 'Betai' to the defendant No,1. 1, therefore, held that Noor Muhammad deceased did not make a alid gift in favour of the defendant No,1 and decide Issue No,2 against him.
6. Allah Bakhsh then came in appeal before the learned First Appellate Court of Mr. Muhammad Aril Chaudhry, Additional District The learned First Appellate Court while affirming the decision given by the learned trial Court with respect to Issue No,2 relating to the question of gift did not accept the theory of Allah Bakhsh. The detailed findings given by him arc reflected in para. 8 of his judgment which are reproduced below in extenso:-- "In the context of the pleas raised by the learned counsel for the appellant, I have perused the record. The three ingredients required by Muhammadan Law to make a gift valid are proposal by the donor which should be accepted by the donee and both the proposal and acceptance should be coupled with the delivery of possession of the property under. Gift. Delivery of possession as conscious, unequivocal and distance act on the part of the donor is necessary to constitute gift and mere entry in the Tutation or in the recital of the gift deed would not be sufficient to establish the delivery of possession. In this view of the matter, it was imperative for the appellant who was charged with the onus of Issue No,2, to have established that he was delivered the possession of the land in pursuance of the gift by his father Noor Muhammad. However, a cursory glance at the evidence produced by him is ample to indicate his miserable failure in this context. What we find from him is evidence which is scanty in every respect. He has examined Muhammad Bakhsh D.W.2 who identified the parties in the proceedings of Mutation No,36 but this witness has not stated anything about the delivery of possession, therefore, his testimony is of no help to Allah Bakhsh appellant. This leaves us with the solitary statement of Allah Bakhsh appellant which he made as D.W.3 and there he claimed to have obtained the possession at the time of its gift by his father. This solitary statement which stands. Refuted by the opposite-party, in no way can establish that the possession of land in question had been given to Allah Bakhsh appellant. Hibba Mutation No,36 was undisputedly sanctioned on 21-4-1970 hence Allah Bakhsh appellant would have been shown in possession of the disputed land subsequent to this date if actually the possession had been delivered to him. However, the true copies of Khasra Girdawari Exhs.P.1 and P.2 do not contain the name of Allah Bakhsh appellant as the person in possession of land. These documents reveal that actually some tenants are in possession of the said land but Allah Bakhsh appellant has not produced any of them so as to establish that they store him as the landlord. With regard to the possession of agricultural land, Khasra Girdawari is the best evidence and the same is to be believed unless cogent and patent evidence to the contrary is adduced. The learned counsel for the appellant has placed reliance upon the true copy of Register Haqdaran for the year 1969-70 which appears as Exh.D.1 so as to contend that appellant is recorded in possession of the land in question. The learned counsel for the appellant urged that Register Haqdaran carried presumption of correctness which is not the case of Khasra Girdawari, therefore, these entries are to be given preference over Khasra Girdawari. I have given an earnest thought to this proposition. Mere entry of Allah Bakhsh as being in self-cultivation of the land in the Jamabandi of 1969-70 in no way would establish the delivery of possession to him since the entries showing him as owner in possession of the land in question were incorporated on the basis of Mutation No,36. Jamabandi forthe year 1969-70 at the best could prove Allah Bakhsh appellant to be in possession after attestation of Hibba mutation, but in no way would prove that prior to the attestation, of the disputed lane Ilan been delivered to Allah Bakhsh appellant in pursuance of the gift claimed by Allah Bakhsh appellant is void, therefore, the learned trial Court has rightly decided Issue No,2 against him."
7. The judgment and decree of the learned First Appellate Court has been challenged through the present R.S.A.
8. It may be mentioned that Mst. Khatoon Bibi who is represented by her legal heirs is the sister of the appellant.
9. During the arguments in the Regular Second Appeal, the learned counsel for Alllah Bakhsh has vehemently contended that the gift was complete in all respect and Courts below fell in error in not appreciating the a proven gift. He further went on to say that in fact the suit was vague as it gave no description of the property and was liable to be dismissed. That the gift mutation in question was validly proved and was validly attested. That there has also been a misreading of evidence of P.W.3 and D.W.1. It has been pointed out that an application was moved under Order 41, Rule 27, C.P.C. Before the learned First Appellate Court asking for permission to produce Talacinama said to have been executed by Noor Muhammad while divorcing the present respondent Mst. Sardaran on 20-10-1969. While submitting his written statement, no such objection was taken by him on 13-10- 1971 and the application in this respect was moved on 19-4-1976, after about four years. Whereas Noor Muhammad died in. This application was replied and the facts controverted. The learned First Appellate Court did not accept the application. The photocopy of the divorcee deed has been placed on the record very belatedly and there was every possibility of its fabrication. Therefore, in the present of the written statement accepting Mst. Sulnatdow of Noor Muhammad such a document and which was placed so heatedly made no difference to the already established facts on record. None of the witness had spoken about the divorce.
10. Even before this Court, the factum of this application was taken up lastly. This application gave rise to this presumption that it was being used as a ploy. I I . According to the learned counsel for the appellant,' P.W.3 had mentioned about the possession of the appellant on the suit land. The relevant excerpt from the statement of this witness is reproduced below. In his examination-in- chief, he has said:-- {{URDU TEXT}} ' In excerpt from his cross-examination, in which he spoke about the possession of Allah Bakhsh is reproduced below in extenso:- {{URDU TEXT}} 11 The learned counsel next based his arguments on the statement of Muhammad Bukhsh (D.W.2).
In the last sentence of his examination-in-chief, Muhammad Bakhsh has said that the plaintiff/respondent Mst. Sardaran was present at the time of the gift mutation. He too was present there. According to him, thumb-impression of Mst. Sardaran was not obtained on the Parat Sarkar of the mutation whereas he had scribed his presence. It has also come from his statement that the deceased Noora had separated his son, the petitioner during his lifetime and got a separate house made for him. That the plaintiff and her husband Noora deceased used to live together until he died. He further stated that the death of Noora took place 3/4 months after the mutation. D.W.2 does not help the learned counsel for the appellant with respect to the actual and physical change of possession. It has come from the mouth of the witnesses that until his death the deceased Noora lived with his wife Mst. Sardaran.
13. After hearing the learned counsel for both the sides, this Court is of the view that the learned counsel for the petitioner has not been able to successfully assail the concurrent findings of the two Courts on the aspect of possession. When it came through the evidence that the tenants were in possession of the suit property, the petitioner did have any opportunity of producing any one of them to establish that he was receiving the rent immediately after the death. The date of the alleged gift and the date of death of the donor have a very short interregnum.
14. In fact in a case like this, where close relations are involved and where the interregnum between the mutation and the death was so short, the petitioner had to establish actual delivery of possession in the first Khasra Girdawari after the mutation, which was of Kharif, 1997.
15. I do not find any material irregularity committed by the Courts below. The judgments and decrees which are concurrent' are, therefore, upheld. The appeal is dismissed with costs.