' This is a revision petition against the order, dated 7-11-1983 passed by the learned Additional District Judge, Bhakkar, whereby the appeal of the plaintiff/petitioner was dismissed, with costs.
2. The facts of the case are that the petitioner/plaintiff brought a suit for declaration to the effect that she is owner in possession of land to the extent of 1/3rd share of Khata No,14, Khatooni Nos.19- 12-1917 of all Khasra Nos. Comprising of 200 Qitat measuring of 1477 Kanals and 8 Marlas out of which the disputed alienated, land is 2 Kanals 18 Marlas and 1/11th share of land Comprising Khata No,542, Khatooni Nos.1918-1923 of all Khasra numbers comprising 127 at 4 fields area measuring 94'6 Kanal out of which the disputed area is 86 ,Kanals. 19/1056th share of land situated in Khata No,543, Khatooni Nos.1924 and 1925 of all Khasra numbers comprising 4 fields area measuring 31 Kanals and 19 Marlas out of which the disputed alienated land is 1 Kanal 10 and Marlas, 149/7392 share of land comprising Khata No,54, Khatooni No,1926 Khasra comprising 3 gnat area' measuring 22 Kanals out of which the disputed alienated land is 9 Marlas, 3/352th shares of land comprising Khata No,860, Khatooni No,3225/1 Khasra comprising 3 Qitat measuring 12 Kanals and 19 Marlas out of which the alienated land is 2 Marlas and total alienated land coming to 90 Kanals 17 and Marlas situated in Mauza Jandala, Tehsil Bhakkar entered in Peaister Zamin for the year 1978-79 and that the defendant had get no concern with it and mutation of gift bearing No,2817 sanctioned on 31-3- 1979 is against law and liable to cancellation and also for the issuance of permanent injunction restraining the defendant from interfering in the cultivation possession of the plaintiff.
3. The facts as alleged in the plaint were that the plaintiff is owner in possession of the suit land which she got from her father as inheritance while defendants are her real brothers and that in March, 1979 she became angry with her son and went, to the house of her daughter who was married to the son of Khair Muhammad and, therefore, the defendants' league with each other under undue influence persuaded the plaintiff that her sons were not obedient to her and she should live in their house and give the land-to the defendants on lease for cultivation' and that the plaintiff came in their undue influence and could not mentally decide and became ready to give the defendants her land on lease for five years but she was not prepared to give or alienate the land to them permanently as her sons were present though at that time they had annoyed her but even then she had no intention to deprive them and that the defendants in league with the revenue staff, Gohar Khan (Lambardar), Rabnawaz (Chairman, Union Council) got the mutation of gift sanctioned and attested on 31-3-1979 and that the plaintiff had not transferred the possession to the defendants and that the said mutation No,2617 was passed on fraud, undue influence and was void and ineffective on the right of the plaintiff. It was also averred that on the basis of mutation No,2617 the defendants are expressing themselves as owners and were threatening interference in the possession of the plaintiff. It was averred that the property was not joint between the complainant and the defendants and partition as yet to take a place and that the defendants have refused to accept the plaintiff as owner in possession of the land. In the written statement the defendants admitted that they were 'real brothers of the plaintiff but denied having exercised any undue influence on the ' plaintiff and stated that she has gifted them. The land of her own consent and even handed over the possession to them and that as such the gift was completed and she has no right to bring the suit.
4. The learned 'Civil Judge framed the following issues:-
(I) Whether the plaintiff is owner in possession of the suit land? OPP.
(2) Whether the plaintiff is entitled to the relief claimed? OPP.
(3) Whether mutation of gift No,2617 is void and ineffective upon the rights of the plaintiff because of undue influence, pressure and coercion? OPP.
(4) Whether the suit is not maintainable in the present form? OPD,
(5) Relief.
5. The parties led their evidence and the learned Civil Judge decided issues Nos.1 and 3 against the plaintiff and on the basis of the said findings also decided issues Nos.2 and 4 against the plaintiff and finally dismissed the suit.
6. An appeal was preferred against the judgment and decree, dated 23-5-1981 which was also dismissed on 7.11-1983, The petitioner/plaintiff has now come to this Court under section 115, P.P.C.
7. Learned counsel for the petitioner has contended that the judgment and decree of both the Courts below are based on misreading of the evidence on record.
8. The record shows that 'the plaintiff examined Ibrahim (P.W.1) Allah Dewaya (P.W.2), , plaintiff herself as (D.W.3) and produced copy of mutation No,2617 (Exh.P1) and copy of Register Haqdaran- e-Zamiti for the year 1968.69 (Exh.P2).
9. On the other hand . The defendant examined Manzoor Hussain, Naib.. Dater Qandongo (D.W.1) and. Habib, Ullah ' Consolidation Officer Kalorkot (D.W.2), Lainbarciar Gauhar Khali (D.W.3), Rab Nawaz, Chairman., Udion Council (D.W.4), Khair Muhammad (D.W.5), Patwari Allah Yar (D.W.6) and produced copy of mutation. No,2617 (Exh.D1), copy of Khasra Girdawarl for Khareef 1978 and Rabi 1980 (Exh.02).
10: The total evidence brought on record by both sides' is reproduced hereunder without any addition 'or omission:--- ' Ibrahim (P.W.1) deposed in his examination-in-chief: "Mst, Fateh Mai is my maternal aunt and defendants are my cousins. My sister is married to Ahmad.
Mst. Fateh Mai is our sister. For the last about two years she has done from here. There has been, no gift. The possession is .Of the plaintiff. Now' the defendants have forcibly taken the possession. She has not appeared before the Tehsildar. The plaintiff had gone to ' defendants being annoyed with her sons."
' In his cross-examination P.W.1 deposed:- "I am maternal nephew of Sardar, the husband of Mst. Fateh Mai. I reside in village Nehari while the disputed land is situated in village Jandanwala. Fateh Mai resides: in village. Shaheedan. Whenever Tehsildar comes on tour 1 also go ,there. .(Again said) I go only when there is* some job. She has a dispute with her sons. She had gone two years back.. Now the defendants have occupied the land.
The defendants had occupies this year. I do not remember how many months have passed in this year."
' Allah Dewaya P.W.2 deposed:-- ' Fateh Mai had gone to the defendants being annoyed with her sons. The defendants had brought her to Jandanwala. She remained at Jandanwala. The possession is of the plaintiff. Her sons cultivate the land.
' In his cross-examination this 0.W.2 deposed:-- ' The name of the husband of the petitioner is Sardar. Her sister is Golai and.The name of my mother is also Golai. I am not relative of Sardar. I am illiterate and cannot tell how much area is in possession of Sardar.
' Mst.. Fateh Mai plaintiff (P.W.3) .Deposed:--- ' The suit land belongs to me and I am in possession. The defendants are my brothers. I had not given the land to my brothers. I had not gone to Tehsildar nor made a statement that I had gifted away the land. The matter was that with one of my sons, I quarrelled about two years ago and I came to my brothers. I remained with them for two days. On the third day they took me to the house of Habib Ullah and I gave the land on lease. I gave it on lease for five years. I did not give the possession. If anyone had taken it later on I did not know. .41 did not give any application.
' In her cross-examination the plaintiff deposed: ' I had appeared for lease. It was incorrect that I had given the possession. I had given the statement for lease. The possession was taken forcibly and the *possession is since two years. It is incorrect that 1 had made any gift.
' The learned , Civil Judge had recorded a note at the end of the deposition of the plaintiff that she is not a Pardanashin lady.
' From defendants side Manzoor Hussaih Naib Qanoongo (D.W.1) appeared and produced copy of the mutation No,2617 (Exh.D1). He was not cross-examined nor there is mention in the evidence- sheet that opportunity was given to the plaintiff to cross'-examine him.
' Habib Ullah (D.W.2) is Consolidation Officer who deposed:--- ' I had sanctioned mutation No,2617 which was presented before me at Jandanwala. Other mutations were also presented along with it. Exh.P1 bears my signatures. It was attested on the identification of lambardar and former Chairman Gohar Khan. Two applications were presented against the mutation in dispute. The applicants were the sons of Fateh Mai and the applications were read over to them. She had come and stated that she is giving the property to her brothers. In his cross-examination D.W.2 stated:-- ' In that year there had been consolidation and he was appointed in the circle in March-April, 1978. I gave the information of my arrival on tour to the -Patwari and that programme of each month was separate and that programme of March was sent and its copy was kept in office and it was notified through patwari. I attested the mutation in the Rest House. On that day 20 mutations were attested which were attested on the identification of Gohar Khan lambardar. It is incorrect to suggest that the said mutations were attested at the house of Masti Khel. The mutation was attested at the personal presentation of Ramzan and Muhammad Sher. Both appeared and they were heard. The applications were read over to Fateh Mai and in the order of 31-3-1979 it was written that Fateh Mai had been read over the order. Ramzan and Muhammad Sher were heard as they were present on the spot.
' Gauhar Khan lambardar (D.W.3) deposed: ' Exh.Dl bears his signature as identifier of Fateh Mai. She had stated that she had gifted away 90 Kanals and 17 Marlas land to her brothers.
' In his cross-examination he deposed: ' There are two Lambardars of Jandanwala and their Pattidars are separate and that he know Fateh Mai from the very beginning. She was married to Sardar and she is daughter of Soota. Her age is 55 years. She had four children. I myself take note when Tehsildar is to come. Other Lambardar is Sher Muhammad. Sher Muhammad is resident of Satta Khel. I am resident of Masti Khel. Tehsildar came in the morning and he was sitting in the Rest House. I know Habib Ullah who is Masti Khel. The mutation was not attested at his Bungalow. I do not remember in which mutation he appeared. Fateh Mai and her brother had come and Tehsildar was sitting in the Central room and I went inside. The plaintiff, her four brothers, Chairman Rab Nawaz were present. In their presence Tehsildar had asked Fateh Mai and she stated that she was getting the mutation attested voluntarily. No text were read. It is incorrect that it was I who had attested the mutation.
' Rab Nawaz (D.W.4) stated:--- ' I had identified Fateh Mai whom I know personally in the matter of mutation No,2617. She does not observe parda. She had stated that she would give the land to her brothers. I told her that her sons were giving applications and she should think over it.
' In his cross-examination he deposed: ' I came to know of the tour of Tehs'ildar on the very day. It was incorrect to suggest that Tehsildar resided in the Bungalow of some one rather he resided at the Rest House. I am unable to tell as to which mutations were attested on that date. Tehsildar sat in the hall. I Gauhar Khan and Tehsildar were present. Fateh Mai and her brothers were also present. I do not know the names of her sons nor I can tell the names of the persons who had appeared there. Fateh Mai stated,that she was giving the land to her brothers voluntarily. All the four brothers were present there. There are two Lambardars of Mauza Jandanwala. It is incorrect to suggest that said patti was under the Lambardari of Shaheed. There are two patties in Jandanwala. Gauhar Khan is Lambardar of patti Masti Khel. Both the parties belongs to Pour party. The land in dispute comprises in Matas Nos.541, 542, 543, 544 and 560 in which the plaintiff is co-sharer along with her brothers.
' Khair Muhammad.(D.W.5) deposed: ' The land was given to us by Fateh Mai as a gift which is in our possession. We have not taken the land under threats.
' In his cross-examination he deposed: ' We are four brothers and three sisters. Our father had died 6/7 years back and we got the land by inheritance. Each one of us got 7 Kanals of land. The name of one of sister is Subhai and the other is Golai. Fateh Mai and Subhai had taken their share while Golai gave her share to her sons. It is incorrect that we give batai to the sisters. He stated that Fateh Mai had come 10/15 days back from 40/50 karams and that she had sons and daughters and one of her daughter is his daughter-in- law. We all brothers live jointly. It is incorrect that the plaintiff had given the land for cultivation for five years.
' Allah Yar patwari,(D.W.6) deposed: ' I had entered the mutation in dispute. Khair Muhammad and Fateh Mai had appeared before me.
The mutation was sanctioned at the tour. Two applications were moved by the sons of the plaintiff.
I have brought Khasra Girdawari copy of which in Exh.D2 accordi.Ng to which the possession is that of the defendants. I also produce copy of Khasra Girdawari Exh.D3.
' In his cross-examination he stated: ' I have brought report Roznamcha in which there is entry No,525. When a mutation is entered a report is recorded. Fateh Mai was also present and mutation was entered at landanwala. I have no record of March.
1979. The Tehsildar had come at 9 a.m. The Tehsildar had attested the mutation at Rest House. The land in dispute is a joint khata. I have not conducted the Girdawari. Girdawari of 24-3-1979 was not conducted by me. He also deposed that Fateh Mai had come on her own free-will. She had stated 7/8 days before that she would get the mutation attested. The husband of Fateh Mai had himself gone and asked to prepare the mutation and that they would give the statement. At that time Fateh Mai was living with her sons. All the sons were asked and they showed their consent. It is incorrect that the land was given for five years lease.
11. The careful scrutiny of the above evidence shows that the petitioner is a lady living in a village having her own children and that there had been some annoyance of her with her own sons and she had gone to her real brothers, the defendants. The mutation was sanctioned on 29-3-1979 and suit was filed on 18-10-1979 i,e, within 6 months and 19 days and there is admission of Habib Ullah Consolidation Officer (D.W.2) that it was not recorded in his order that Ramzan and Muhammad Sher were also heard although they were present on the spot. Neither the Tehsildar nor the Consolidation Officer would tell about a single mutation out of the 20 mutations that were attested on the same day and in whose favour these were attested. The whole matter of gift as per evidence of Khair Muhammad (D.W.5) was completed within 15 days when Fateh Mai had come to the house of the defendants. Had she gifted away the property to the defendants, the question of making of applications 'by the sons to whom no hearing was given by the Revenue Officer and filing of the suit by the petitioner had arisen. The statement of Allah Yar Patwari (D.W.6) also throws light to come to the just conclusion. He stated that the husband of Fateh rvia-; had himself asked to prepare the mutation and that they would give statement. Admittedly at that time she was living with her brothers, the defendants being annoyed With her sons. She had stated that she intended to give the land on lease and did not intend to gift it away to the respondents. In this case not only the free consent of the doner is missing but also the delivery of possession to the donees is not proved.
12, The note of the learned Civil Judge at the end of. The evidence of Fateh Mai that the plaintiff was not a 'Parda Nasheen' lady is of no help to the defendants-respondents for the reason that our ladies in the villages who are not literate are not so well-aware of their rights, and the frauds are being played upon them by the people even by the near relatives. Islam is the State religion of Pakistan and keeping in view the letter and spirit of Article 2A of the Constitution, the Courts have to see that the injunction of Islam as laid down in the Holy Qur'an and Sunnah are not violated.
13. Under the Islamic Law the delivery of possession to the donee is a condition precedent to the validity of the gift. The Holy Prophet (p.b.u.h.) said, "a gift is not valid without seizing. In Hadaya it is mentioned, "tender and acceptance are necessary, because a gift is a contract and tender and acceptance are requisites in the formation of all contracts, the seizing is necessary in order to establish a right of property in the gift, because a right of property according to our doctors is not established in the thing given merely by means of a contract without seizing." (Hadya, Volume III, page 482).
14. In case of Ghulam Nabi and 2 others v. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the Hon'ble Supreme Court made the following observation which unveil the gross route evils with which our society in the matters of women at the hands of greedy relatives, be they the brothers or others. I produce the relevant portion of the, judgment as under:--- ' The pleas of estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent 'were required by the Islamic law to protect the property rights of .Their sister if ever they came into possession of the land in, any capacity. Here admittedly they, alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, particularly the one relating to hostility, would not be established. But as stated earlier one who is enjoined with the protection of the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The saying of the Holy Prophet (p.b.u.h.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolk. Under the property dispensation, therefore, in the present case there could be no claim of adverse possession Same would apply to the estoppel and waiver. Mores on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise. Control over it) would negate the plea of estoppel or waiver. The plea of ouster to say the least, is untenable; because it essential component, the plea of adverse possession, is obviously not available against a sister what to talk of her ouster.
' The question of , limitation has already been decided against the petitioners. No further comment is necessary in this behalf with reference to Islamic law and principles.
' The last argument of the learned counsel related to rights and interests of the subsequent alienees from the petitioners. They have not come before this Court nor they have been .Impleaded as respondents by the petitioners. It appears only the kith and kin; namely the brothers want to fight against the sister-respondent. Moreover, this question having been settled by the lower Court the subsequent alienees did" not raise any grievance before the higher Court--Nor as stated above have they come to this Court.
' On question of public policy, morality (section 23) lack of consideration (section 25) and undue influence (section 16) vis-a-vis Pardanasheen ladies it has to be reiterated and recapitulated that: ' Firstly, the relinquishment by the respondent, if any, is against public policy and morality which concepts are to be decided on the basis of Islamic teachings and principles. The respondent could not opt or contract out of this protection. Hence the act of relinquishment was void and ineffective.
Her inheritance; having accrued in her favour on her father's death remained intact at all the relevant times.
' Secondly, the question of lack of consideration loses much of its relevance on account of the firstly above. But had it been not so, the so-called exceptions in section 25 not being applicable in the context of Islathid rules and teachings would not have saved the disputed relinquishment.
' Thirdly, the relinquishment as such having been annulled, the same could not in this case operate as an ordinary alienation under the existing law for two amongst other reasons: ' One, the so-called relinquishments of accrued inheritance is neither recognized in Islamic law of Transfer nor is it treated as a 'transfer' under the Transfer of Property Act. If at all the nearest form being of 'gift' none of its essential conditions are satisfied in a 'relinquishment', so-called, if it is intended to be a gift, the latter's essentials would have to be gone through on principle and also as legal necessity. It cannot, be by way of 'relinquishment' simpliciter. Another form of alienation in this context would be by way of family settlement/arrangement, which it might be argued is permissible in Islam. It is a very important aspect of the controversy, but a very vital condition regarding existence of a bona fide family dispute' to be resolved or bona fide difficulty to be surmounted through such means, is lacking in this case. Moreover, the case-law on this point might require re-examination on the touchstone of which has been discussed above.
' Two, even if all the conditions for a valid transfer under the existing set and system of law after the due accrual of inheritance are satisfied the protection afforded by section 16 of the Contract Act against undue influence, to Pardanashin ladies and others similarly placed parties and entrenched in the case-law as also available under the Islamic law already discussed, would require so many conditions to be satisfied. Admittedly in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of alienee. The discussion in this behalf in MSt.
Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioner even then would have failed on account of undue influence, the presumption regarding which in respondent's favour, has not been rebutted. This and other issues discussed and answered in this summarization will, it is clarified in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality, which would remain the main ratio in the case.
' In passing, it.Is relevant, at this stage to comment upon the decadence which fell upon the prestigious position held in Islam by women and their rights as to status and property. As also. To think of some remedial measures. Although it is for the historians and the sociologists to examine the cause of the serious set back suffered by the rights of women---their recognition, protection and enforcement during certain periods and places in the past; year for the present discussion it is necessary to point out in this behalf a jurisprudential aspect relating to the South and Sould East Asia. Islamic law/culture had come in clash with a powerful entrenched and old culture had the habit of absorbing what came in contact with it, by many methods. 'Islam withstood the cultural attack, and it not only survived but also removed the process of absorption. In this gruesome fight to superiority. Muslims also suffered a small dent near about the end, in their adherence to the 'Maroof part of the Islamic norms. The Islamic laws were not ,changed but alien customs and customary laws were adopted mostly under the European force and umbrella. Provided to the adversary in this field. The creation of Pakistan. Where it is a manifestation of various other principles and realities is also a reaction to what has been stated above. Islam resisted absorption and Muslims overcame, by a democratic process, the weak bounds of some common customs and those of common history also. This case and few other cases and customs are the remnant of the influence of Hindu customs and laws, vis-a-vis the rights 'of woman particularly in the .Field of inheritance. The superior Courts are reinterpreting existing laws/legal concepts with reference to Islamic judicial norms and in the process. a Pakistani jurisprudence has developed and is developing for the interregnum wherein a lot of shedding off of the alien influences is taking place.
In field of inheritance for example, customary law which prevailed for few centuries has been replaced by Islamic Laws. See Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 SC 394) and the Federation of Pakistan through Secretary. Law and Parliamentary Affairs, Islamabad v.
Muhammad Ishaque and another (PLD 1983 SC 273) the latter case was decided by Shariat.
Appellate Bench of this Court. How can we uphold, the act of 'relinquishment' by a Muslim Female. It is the customary remnant of a concept of Hindu Law in the Mitakshra families. As is discussed in the case of Haji Nizam (approved in Muhammad Bashir's case) which was also a case of clash of Islamic Principle against those of other systems a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic Law and principles. This case also required similar, if not better treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and-enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence is yet to take its own time.
' In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct Rules.
But it is a wide guess as to how many females take the courage of initiating or continuing the legal battle with their close ones in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted.
Are to be blamed. The social oreanizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban Volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the.
Enlightened urban society? It is a pity that while an urbanized brother who is labourer in a neighbouring mill, has the protection of such mass of Labour Laws, which sometimes, even Courts finds it difficult properly to count right from the definition of 'rights' up to the enforcement even in homes, through social security Laws, with web of network of 'Inspectorates' etc. Who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights.
Of inheritance even today by her own kith and kin-sometimes by the urbanised brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women - have not succeeded in rural field. They may continue for the urban area where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles, dealing with women. It is not the re-interpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or methods alone.
' A large number of members of the legal fraternity have live contacts with the rural life from where the majority of them come. They also are aware of' the Malady and many may be involved in the tragedy. They can carry this burden adequately. While the Bar always seek the protection of its rights through legislation, an amendment therein to honour the honourable members thereof with the duty of the protection of the rights of (if not all the deprived classes of society) at least the womenfolk of rural areas to start with, will not be out of place. There can be statutory committees for this purpose of the Pakistan and Provincial Bar Councils with the collaboration of the Local Bar Association. They can be headed by the Judges of the Superior judiciary as it is for the other existing committees and tribunals. A network can be created with the inclusion of the lawyers who belong to the respective localities as also the departmental representatives of education, health, labour, social welfare and revenue departments. They also can. Point out prospective and actual cases of infringement of rights---failure to do so might also incur penalty, even for the lawyer, before his domestic disciplinary tribunal, of the respective Bar Council. The finances cannot be a problem. The Government the legislature, the tax-payer and the Urban elite will not grudge' this small facility for 80% of these have-nots of the social sector, while 20% get all the other facilities of the urban paraphernalia, which includes amongst others, better facilities and services in nearly all fields."
15. In the case of Hakim Khan v. Nazir Ahmad Lughmani and 10. Others (1992 SCMR' 1832) the Hon'ble Supreme Court observed:-- "Mutation by itself does not create title and the person deriving title thereunder has to prove that the transfer did part with ownership of the property and subject to mutation in favour of the transferee and that the mutation was duly entered and attested."
' It was also observed in the same precedent:--- ' Any person who acquires title through a mutation burden of proof of proving transaction embodied in the mutations is upon him.
16. The impugned mutation is declared the result of collusion by the revenue staff, brothers of the petitioner and the same should have been so declared by deciding issue No,3 by the Courts below and as such gross injustice has been committed by misreading and misinterpreting the evidence on record. The revision is accepted and the suit of the petitioner-plaintiff is decreed with costs.