' Instant Civil Revision is directed against the judgment and decree, dated 9-12-1991 passed by the Additional District Judge, Jhelum whereby he confirmed the judgment and decree, dated 30-4- 1990 passed by Mr. Mazhar Hussain Chaudhry, Civil Judge, Jhelum.
2. Briefly stated the facts are that land measuring 43 Kanals was owned by the plaintiff/respondent.
The defendant/petitioner alleges that he acquired the same by way of Mutations Nos.2158 and 2159 entered on 9-6-1986 and attested on 21-6-1986. The plaintiff/respondent filed suit for declaration whereby he challenged the said alienation of suit land vide mutation referred above on the ground of fraud and misrepresentation and further alleged that he was not in a fit mental condition to alienate the property referred above. The stand of plaintiff/respondent was controverted by the defendant/ petitioner wherein he raised some preliminary objection and further asserted that suit land referred above was mutated in his favour by way of gift mutation referred above.
3. From the divergent pleadings of the parties the trial Court framed the following issues:--
(i) Whether the plaintiff is estopped by his conduct and act to file the suit?
(ii) Whether the plaintiff has no locus standi to file the suit?
(iii) Whether the suit is not maintainable in its present form?
(iv) Whether the plaintiff is owner in possession of the suit land?
(v) whether the plaintiff is of unsound mind?
(vi) Whether the Mutations Nos.2158 and 2159 were sanctioned in favour of the defendant through fraud and with the collusion of Revenue Officials and are therefore, liable to be set aside?
(vii) Whether the documents, dated 30-7-1987 was also result of fraud and misrepresentation and is liable to be cancelled?
(viii) Relief.
4. In support of the stand plaintiff/respondent examined P.W.1 Matloob Hussain, P.W.2 Muhammad Aslam, P.W.3 Mansab Khan, P.W.4 Muhammad Sharif Constable, P.W.5 Abdul Salam, P.W.6 Noor Muhamamd, P.W.7 Raja Muhammad Aslam, Advocate and appeared himself as P.W.B. In rebuttal defendant/petitioner examined D.W.1 Tariq Mehmood, D.W.2 Iftikhar Ahmad, D.W.2/1 Zafar Iqbal Patwari, D.W.3 Ali Ahmad, D.W.4 Muhammad Siddique, and recorded his own statement as D.W.S.
5. After going through the evidence produced by the parties, the trial Court decreed the suit vide judgment and decree, dated. 30-4-1990. Having felt aggrieved of the said judgment and decree,' the defendant/petitioner filed an appeal which was dismissed vide judgment and decree, dated 9- 12-1991. Hence the instant civil revision.
6. Arguments have been heard and record perused.
7. The main contention of the learned counsel for the defendant/petitioner is that trial Court decreed the suit mainly on the ground that possession was not delivered by the plaintiff/respondent to the defendant/petitioner. He contends that as the property was jointly owned by the plaintiff/respondent and defendant/petitioner so there was no need of handing over the possession by the donor to the donee. In support of his contention he has relied upon Alif Khan v. Mst. Mumtaz Begum and another 1998 SCM R 2124 and Muhammad Sadiq v. Sardar and other 1995 SCM R 710. He further contends that trial Court had also relied upon document Exh.P.2 which is report alleged to have been lodged at the instance of defendant/petitioner. His contention is that trial Court was not justified in relying upon this report as he was not confronted with the contents of the said report while he appeared as D.W.5 in the trial Court. He next argued that mutation of gift vide mutations referred was in accordance with law as plaintiff/respondent could alienate the property being of sound mind at the relevant time. He contends that according to section 12 of the Contract Act a person who is usually of sound mind but occasionally of unsound mind, may make a contract when he is of sound mind. He referred to the averments of plaint contained in para. No,3 wherein plaintiff/respondent has contended that occasionally he had been facing the fits of insanity. He further contends that every person is presumed to be sane and as such if the plaintiff/respondent wanted to get the benefit of insanity he has to prove that he was insane when the mutation were entered on 9-6-1986 and were attested on 21-6-1986. He thus submitted that the trial Court as well as the First Appellate Court has not appreciated the evidence which has come on record in its true perspective.
8. Conversely the impugned judgments and decrees have been supported by the learned counsel for the plaintiff/respondent.
9. The plaintiff/respondent filed a suit for declaration whereby he challenged the Mutations Nos.2158 and 2159 alleged to have been sanctioned on 21-6-1986. His main contention is that he was of unsound mind when the alleged mutation was got rendered and attested. To support his contention he has examined as many as 8 P. Ws. Including himself. To rebut his said contention the defendant/petitioner has brought on record 5 D.Ws. Including statement of defendant/petitioner.
The plaintiff/respondent has brought on record a Rapt Exh.P.2 alleged to have been got registered by the defendant/petitioner on 27-8-1986. This Rapt reveals that the plaintiff/respondent was unsound mind about two months prior to the said report. Conversely the stand of defendant/petitioner is that had the plaintiff/respondent been of unsound mind the marginal witnesses D.W.3 Ali Ahmad and D.W.4 Muhammad Saddique would have not attested the said mutation. The statements of D.Ws.3 and 4 no doubt reveals that they were present at the time of attestation of said mutation. Their statements, however, throw ample light about the family relations of the parties. It is admitted by them that parties are brothers inter se. They further admit that daughter of the plaintiff/respondent was married with the son of the defendant/petitioner.
They further admit that relations between the spouses had become strained even prior to entering Mutations Nos.2158 and 2159, as son of the defendant/petitioner had divorced his wife (daughter of the plaintiff/respondent). Again it stands verified even by P.W.7 Raja Muhammad Aslam, Advocate that possession of the property in dispute had not been delivered to the defendant/petitioner and the same was still in possession of plaintiff/respondent. Again this fact hardly appeals to reason that plaintiff/respondent shall be alienating the lands in favour of his brother by way of gift vide mutations referred above when their relations are strained to the extent referred above.
10. The upshot of above discussion is that both the Courts have analysed, scanned and appreciated the evidence in its true perspective. The judgments and decrees do not suffer from any misreading or non-reading and as such revision petition fails and is hereby dismissed.