This revision petition is directed against the order dated 17-2-2000 passed by the learned Additional District Judge, Faisalabad, dismissing the appeal of the petitioners against the judgment and decree dated 15-11-1994 of the learned Civil Judge Faisalabad whereby the suit for declaration filed by the petitioners was dismissed.
2. The brief facts of the case are that the predecessor of the petitioners instituted a suit for declaration to the effect that the plaintiffs are the occupancy tenants and in possession of the land in dispute situated at Chak No,106/GB, Tehsil Samundari District Faisalabad, measuring 107 Kanals, 17 Marlas and Mutation No,40 dated 29-9-1941 and subsequent mutations are ineffective upon the rights of the plaintiffs with consequential relief of permanent injunction restraining the defendants from dispossessing the plaintiffs.
3. It was alleged that the land in dispute was jointly owned by Muhammad, Sher, Palu and Noor. The aforesaid persons have expired and the land has devolved upon the present petitioners. It is further stated that. Mutation No,40 dated 29-9-1941 was procured through fraud, misrepresentation and collusion. It was also maintained in the plaint that possession was not delivered, as such, the so- called gift was void ab-initio and the three legal requirements of a valid gift has not been fulfilled.
4. The defendants Nos,6 to 17 filed confessional written statements. However, defendants Nos,2 to 5 resisted the suit. From the divergent pleadings of the parties the following issues were framed by the learned trial Court:--
(1) Whether the Court has no jurisdiction to bring this suit? OPD.
(2) Whether the defendants are barred by their conduct and words to bring this suit? OPD.
(3) Whether the suit is mala tide and frivolous? OPD
(4) Whether the suit is barred by time? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the suit is liable to be dismissed because the same has not been signed 'and thumb- marked by the plaintiffs ? OPD
(7) Whether the suit is frivolous and vexatious? If so, whether the ' defendants are entitled to special costs under section 35-A of Civil Procedure Code? OPD
(8) Whether the plaintiffs are occupancy tenants of the suit land? OPP
(9) Whether the Mutation No,40 dated 29-9-1941 and the subsequence mutations, if any, are illegal, ultra vires void and ineffective against the rights of the plaintiffs? OPP (9-A) Whether the amendment made in the plaint is unauthorized, if so, its effect ? OPD 2-5 (9-B) Whether the relief with respect of defendants under Order 6, rule 17 is barred by res judicata?
OPD (9-C) Whether the defendants Nos,6 to 17 are also the occupancy tenants in possession so the suit land against the plaintiff ? OPP (10') Relief.
5. The learned Civil Judge, Faisalabad under Issue No,6 held that the suit of the plaintiffs was barred by time. Regarding the disputed Mutation No,40 dated 29-9-1941, under Issues Nos,8 and 9, the learned Civil Judge. observed that: "the plaintiffs have failed to prove that Mutation No,40 of 1941 is null and void and they are still occupancy tenants of disputed property."
Under Issue No,9 the learned Civil Judge recorded the finding that the defendants Nos,6 to 17 have withdrawn their earlier suit regarding occupancy tenant, therefore, to their extent the suit is barred under Order 23, rule 1(3) of Civil Procedure Code. Consequently the suit of the petitioners-plaintiffs was dismissed. Appeal filed by the petitioners was also dismissed by the learned Additional District Judge, Sheikhupura on 17-2-2000 by observing that: "I am of the opinion that as the donors had themselves made a gift.in favour of Syed Mahboob Hussain Shah out of their own foundness and liking in favour of Syed Mahboob. Hussan Shah and they had been cultivating the land under him as his tenants, henceforth it does not now lie with, appellants to challenge the said mutation for being fraudulent and void etc."
Regarding the Issue No,4 of limitation, the learned Additional District Judge held that the suit was barred by time.
6. In support of this revision petition the learned counsel for the petitioner has argued that under the gift possession was not delivered to the donee. Reference has been made to the copy of the Mutation No,40 (Exh.P.2) to show that no possession was delivered by the donors to the donees.
Further submits that the Khasra Girdawari (Exh.P.7) has been misread by the learned trial Court as well as the learned First Appellate Court which shows that the possession in fact remained with the donors ever since, hence without delivery of possession gift was not complete, therefore, the finding of the Courts below on Issues Nos,8 and 9 were result of complete misreading of evidence.
Further contends that the transaction through the impugned Mutation No,40, dated 29-9-1941 which was challenged by institution of the suit on 31-3-1991 was void, abinitio, therefore, no limitation will run against the void attestation of the mutation and therefore, the finding of both the Courts on Issue No,4 is not sustainable.
7. The learned counsel has relied on the case of Azam Khan v. Malik Muneeb Khan etc. (2001 CLC 34), to argue that mere recital in gift deed about the delivery of possession would not be sufficient to prove possession unless delivery of possession is positively proved by the cogent evidence.
Further relied on the case of Mst. Ghulam' Sughran and others v. Sahibzada Ijaz Hussain (PLD 1986 Lahore 194), to argue that. it is necessary to keep three essentials of gift i,e, No,(i) a declaration of gift by the donor (ii).
An express or implied acceptance of the gift by the donee and (iii) delivery of possession of the gifted property by the donor to the donee, while examining the validity of the transaction of gift. The learned counsel on the basis of the case reported as Mst. Noor Fatima and another v. Begum Bibi and another (1990 SCMR 629) contends that mere mutation does not confer any right. On the question of the limitation, the learned counsel had placed reliance on the case of Abdul Nabi etc. v.
Jan Muhammad etc. (1998 CLC 1842) and argued that person in knowledge of adverse mutation entries but in possession of property in dispute is not supposed to file a suit within limitation period until his possession is threatened. On the strength of the case reported as Zafar Iqbal etc. v.
Yaqoob etc. (1995 CLC 7) and Siraj Din v. Mst. Jamilan and another (PLD 1997 Lahore 63), the learned counsel contends that it was obligatory for the respondent to prove the valid gift in their favour.
8. It is contended that there is not an iota of evidence on record that Boota Singh, has ever attorned to the so-called donees. The reality is that admittedly the predecessor-in-interest of the petitioners and subsequently the petitioners are in open, exclusive and hostile possession of the land in dispute and gift without delivery of possession is void. The documents Exh. 11.1 and Exh. D.2, were inadmissible if the same would have been excluded keeping in view the rule laid down in the case of Khan Muhammad Yousaf Khan Khatak v. S.M. Ayub and two others (PLD 1973 Supreme Court 160), the suit could have not been dismissed on inadmissible evidence. It is further Lontended that the learned trial Court, has altogether omitted from, consideration that it is always open to the donor to revoke the gift before the delivery of possession but this aspect of the matter has not been taken into consideration and the rule of law laid down in the case of Anjuman Islamia reported in (PLD 1967 Lahore 336), has been ignored and the impugned judgment and decree are revisable on this ground alone that the admitted law laid down by the Constitutional Courts has not been taken into consideration.
9. There is no dispute about the fact that under Islamic Law, there are following three essentials for establishing the valid gift:-- (i)a declaration of gift by donor; (ii)an express or implied acceptance of the gift by donee and (iii)delivery of possession of the gifted property by donor to donee.
It is, therefore, necessary to keep the above three ingredients while examining the validity of the transaction of gift. On the touch stone of the above principles of law the evidence produced by the parties has been examined by the learned trial Court as well as the learned first appellate Court.
The objection of the learned counsel for the petitioner that Mutation No,40 (Exh.P.2) by Sher, Pallu, Muhammad and Noor sons of Nawab in favour of Syed Mahboob Hussain Shah, is silent about the delivery of the possession is not entertainable because the predecessor-ininterest of the respondents was under the cultivated possession under the Colonization Act, 1940 on behalf of the Provincial Government and the mutation was sanctioned in pursuance of Rapat Roznamcha Waqiati Exh.P.6, dated 31st July, 1940. No doubt the mutation is not the proof of title but the Rapat Roznamcha Waqiati Exh.P.6 which has been exhibited without objection on behalf of the petitioners, is enough to prove the fact that gift was made by the donor in favour of the donees after obtaining the permission from the Collector. It has been held in the case reported in NLR 1998 Civil 289 (sic) that Rapat Roznamcha Waqiati is a public document under Article 49 of the Qanun-eShahadat Order and the presumption of trath is attached to it, therefore, the objection of the learned counsel that there was no valid gift is not entertainable. An application Exh. D.1 moved by the Sher, Pallu, Muhammad and Noor on 28-7-1941 before the Collector through which they requested to allow them to transfer their rights to Syed Mahboob Hussain Shah under section 19 of the Colonization of Land Act, 1912. The order of the Deputy Commissioner (Exh.D.2) shows that 'the sanction was accorded according to the request of the donors, the predecessor-in-interest of the plaintiffs. The entries in the Revenue Record were never challenged by the plaintiffs. The contention of the petitioners' learned counsel that donors were in possession at the time when the gift was made is against the record. Copy of Khasra Girdawar of Kharif 1940, Rabi 1941 and Kharif 1941 (Exh.D.19) makes it clear that Sher, Pallu, Muhammad and Noor were not in possession of the land in dispute at the time of gift. In fact Boota Singh son of Chandar Singh who was in possession of the disputed property. The consolidation proceedings were conducted in the village in the year 1962-63 and this is evident from mutation for consolidation (Exh.D.7) and (Exh.D.8). No objection was taken by the plaintiff-petitioner regarding the ownership on the basis of the gift in favour of Syed Mahboob Hussain Shah. On the strength of case reported as Azeem Khan v. Malik Mubeen Khan' (2001 SCMR 34), it has been argued by the learned counsel that mere recital in gift deed for the delivery of possession would not sufficient to prove possession unless delivery of possession is positively proved by the cogent evidence, there is no cavil with the principles enunciated in the above referred judgment but here in the present case there is no recital in the mutation but the gift has been sanctioned on the basis of intention-declaration of the donor made by them submitting an application before the learned Collector and therefore, the entry was made in the Rapat Roznamcha Waqiati and on the basis of that mutation gift was sanctioned in favour of the donee.
There is another distinguish feature of the above-referred case that the possession of the disputed house was with the donor. Here in this case the petitioners have acknowledged the respondents/donees as the lawful owners, by keeping silent for more than about 40 years. In case of Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lahore 194), it was held that neither the delivery of possession by the donor. no, the donee entering into possession of the disputed property under the gift or with the permission of the donor was proved from the evidence on record. It being a condition precedent casts serious doubt to the validity of the gift. To My mind the above-referred case of Mst. Sughran (PLD 1986 Lahore 194) (supra) is not applicable because in this case the donor obtained permission from the Collector and for this an application was submitted to the learned Collector which is on the record (Exh. P.6) and has been exhibited without any objection. In the case of Zafar Iqbal etc. v. Yaqoob etc. (1995 CLC 7) and Siraj Din v. Mst. Jamilan and others (PLD 1997 Lahore 633), it was held that the registration of gift deed is not equivalent to prove of its execution. Beneficiary of the registered gift deed is required to prove its voluntarily execution.
10. In this case the execution of the gift deed on the basis of the mutation is not in dispute. Only it has been asserted that the necessary ingredients of the gift are not complete.
11. On Issue No,4 both the Courts held that the suit of the petitioner was barred by time as the mutation was sanctioned on 29-9-1941 and the suit has been instituted on 10-7-1982. As stated above it was in the knowledge of the predecessor-in-interest of the petitioner that the mutation has been entered in favour of Syed Mahboob Hussain Shah as themselves submitted an application to get permission. Under Article 120 of the Limitation Act, the suit for declaration under section 42 of the Specific Relief Act has to be filed within 6 years'. The suit filed after 41 years of the sanction of mutation, dated 29-7-1941, on 10-4-1982 was thus hopelessly time barred. The other piece of the evidence against the petitioner is that the Mutations No,200, 201 which were sanctioned in result of consolidation proceeding (Exh.D 7) and Exh.D.8, on 30-8-1961 and 1962. If the date of limitation is to be taken from the attestation of the Mutation Nos,200 and 201 which were in the knowledge of the petitioners, the suit of the petitioners would become barred by 22 years.
12.The plaintiffs have not been proved to be in possession of the land in dispute, at the time of sanctioning of the mutation in favour of Syed Mahbob Hussain Shah and the statements of P.Ws. are that they were visiting the .respondents. In this view of the matter, there is concurrent finding that valid Mutation No,40 dated 29-9-1941 was attested in favour of Syed Mahboob Hussain Shah, the predecessor of the respondent. The same is not void or voidable, therefore, Article 120 of the Limitation Act will apply and the suit of the appellants-petitioners was barred by time. In the case reported as Aziz Ullah Khan v. Gull Muhammad Khan (2000 SCMR 1647), it has been held by the Honourable Supreme Court that concurrent finding of fact recorded by the competent Courts of jurisdiction cannot be interfered with in exercise of the revisional jurisdiction of this Court under section 115 of Civil Procedure Code unless the, same are passed by the Courts having no jurisdiction or the impugned orders are coram-non-judice. In this view of the matter, I see no force in this revision petition. It is dismissed. Parties to bear their own costs.