' This is a Regular Second Appeal against the judgment of a learned Additional District Judge, Sahiwal, dated 15-1-1989,, whereby, he maintained the judgment and decree passed by the trial Court by dismissing the appeal of the appellant. It arises in the circumstances briefly stated below:
2. Rehmat Bibi and Mst. Jeena, two real sisters, had filed a suit for possession against the appellant and respondent No,3, who is father of the appellant, that Mutation No,139, dated 5-5-1970 whereby a gift of the land belonging to them was purported to have been made in favour of the appellant, was illegal and result of collusion between the father and the son. They had denied of any such gift made by them. The suit was contested by the appelIant/defendant. Issues arising out of the pleadings were framed by the trial Court, whereafter, the parties produced evidence in support of their respective pleas. On consideration of the evidence, the suit, was, decreed, by the learned trial Judge on 11-10-1984 recording the finding that the respondents/plaintiffs had never gifted their land. On an appeal, filed by the appellant, *learned Additional District Judge, affirmed the finding recorded by the learned trial Court and dismissed the appeal. This is thus, second appeal by the appellant/defendant.
3. It is contended by the learned counsel for the appellant that the findings recorded by the two Courts below are result of misreading and non-reading of the evidence which need to be set aside.
It is further contended that the suit, filed by the respondents/plaintiffs ought to have been for declaration and not for possession.
4. The learned counsel for respondents Nos.1 and 2 supports the concurrent findings and view taken by the Courts below and contends that the alleged mutation of gift itself was of no value unless the factum of gift had been proved by independent evidence. According to him, even the Lambardar, Patwari and the Revenue Officer, who are alleged to have identified entered and sanctioned the mutation, had not been produced by the appellant. Reliance is placed by him on Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lahore 194), Mst. Hawa v.
Muhammad Yousuf and others (PLD 1969 Karachi 324) and Nisar Hussain v. Mst. Sufaidan (1988 CLC 109).
5. The onus of proving Issue No,2 as to a valid gift in favour of the appellant/defendant was on him, connected therewith was Issue No,3 as to whether the respondents/plaintiffs were the owners of the suit land. The appellant had produced Noor Muhammad D.W.1, Juma D.W.2 Ali Muhammad D.W.3, Ibrahim D.W.4, whereas, he himself appeared as D.W.S. The respondents/plaintiffs had produced Aziz P .W .1 Muhammad Sharif P. W.2, Muhammad Akram P.W.4, whereas Mst. Rehmat Bibi appeared as P.W.5 and Mst. Jeena appeared as P.W.6. The Mutation No,139, dated 15-5-1970 is Exh.
P.4. The learned trial Court considered and appreciated the statements of the witnesses analytically noting the material aspects of the same and discrepancies which made the factum of gift by respondents/plaintiffs in favour of the appellant doubtful. The non-production of Patwari and the Revenue Officer, who had allegedly entered and sanctioned the mutation of the purported gift in the context when there was emphatic denial of any such gift by the respondents/plaintiffs was also noted which gave rise to an adverse inference against the appellant. It was also noted that the two ladies who are real sisters had their own children and family, there was no reason for having alienated the land in favour of the appellant by them who is son of their brother Sardar Muhammad, respondent No,3, herein. He was, thus satisfied that the respondents/plaintiffs who were illiterate women were defrauded by their brother Sardar Muhammad by showing the gift on their behalf in favour of his son, the appellant. In appeal, the learned Additional District Judge has noted the relationship of the parties and that respondent No,3 father of the appellant had been cultivating the land. It was also noted that the mutation of purported gift was not sanctioned in the revenue estate. It was further noted that "Abdul Aziz and Sardar Muhammad who allegedly testified the factum of transaction of gift were also not produced in this case in order to prove the transaction. The Patwari who entered the fact of gifting away of the property in favour of the appellant-defendant No,1 was also not produced in this case. "Thus considering the evidence and non-production of the persons whose testimony would have great bearing in the matter he affirmed the findings of the trial Court recorded in Issues Nos.2 and 3.
6. I have gone through the evidence with the assistance of the learned counsel for the parties in order, to determine the correctness of the findings and the conclusion drawn by the Courts below.
On consideration of the same, I find that the findings are based on correct appreciation of the evidence on the record. The statements of the witnesses produced by the appellant/defendant were discrepant in material aspects and were not of credible nature. It was for the appellant to have produced evidence of convincing nature to prove the gift by the two ladies who were illiterate and had their family and children. There was no rationale, motive or necessity for them to have made any such gift in favour of the appellant. The view taken by the Courts below finds support from Nisar Hussain's case (supra). In Mst. Ghulam Sughran's case (supra) a learned Division Bench of this Court noted the importance of non-production of the Revenue Officer who had attested the mutation and the witnesses testifying the alleged transaction of gift. In the present case as well, none of the testifying witness, the Patwari or the Revenue Officer have been produced. In Laloo and another v. Ghulaman (2000 SCMR 1058) it was observed that where a transaction purports to have been made by an old lady and is denied by her the onus shifts on the other side to prove the transaction. In Naja and 2 others v. Shamand and 4 others (PLD 1985 Lahore 607) it was observed that a mutation is only a piece of evidence which does not take the place of the transaction itself of its own force and the transaction even in the presence of the mutation need to be proved by an independent evidence. In the instant case the appellant and his father, respondent No,3, failed to discharge the onus of proof of the factum of gift by the two illiterate ladies i.e, respondents Nos.1 and 2. No evidence of credible nature was produced by them in this regard.
7. The contention of the learned counsel for the appellant that the suit should have been for declaration has also no ubstance not only that it was never the case of the appellant/defendant before the Courts below but also in view of the extensive scope of Issues Nos.2 and 3. 'The controversy was fully known to the parties who had full opportunity of substantiating their respective pleas. The form of the suit thus would not have made any difference in the facts and circumstances of the present case.
' In view of the above, the concurrent findings of fact recorded by the Courts below and the conclusion drawn by them do not suffer from any illegality. No justification exists to interfere with them by this Court in second appeal. The appeal is accordingly dismissed. No order as to costs.