On 19-1-1992, the petitioners filed a suit against the respondents. In the plaint it was stated that the suit land measuring 94 Kanals and 9 Marlas was owned by Sharaf Din and Mst. Hajran Bibi son and daughter, respectively of Raheem Bakhsh; that the said Hajran Bibi had died and the petitioners, being husband and children of the said Hajran Bibi are entitled to 1/3rd share from the said suit land; that Hajran .Bibi had been in receipt of her share of the produce in her lifetime; that Hajran Bibi was an illiterate village lady. Sharaf Din was her brother. He managed to get a Mutation of Gift No, 102 attested in his favour on 20-1-1971 when Hajran Bibi had never gifted away the property to the said Sharaf Din. With these averments, a declaration was sought that the petitioners are owners of 1/3rd in the suit land and the said mutation is illegal and void. The respondents in their written statement proceeded to plead that the land was validly gifted to Sharaf Din and after his death they being his widow and children are in possession as owners. Following issues were framed by the learned trial Court:-
(i) Whether the suit is barred by time? OPD
(ii) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD
(iii) Whether the suit is not maintainable in its present form? OPD
(iv) Whether the plaintiffs are estopped by their words and conduct from filing this suit? OPD
(v) Whether the suit is hit by section 42 of the Specific Relief Act? If so, its effect? OPD
(vi) Whether the suit is liable to be dismissed under Order VII, rule 11, C.P.C.? OPD
(vii) Whether the suit is hit by Order VII, rule 6, C.P.C.? OPD
(viii) Whether the suit is false and vexatious? OPD
(ix) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(x) Whether the suit against the minor defendants Nos. 8, 9, 11 and 12 had not been filed under - Order 32,rule 3, C.P.C.? OPD ' Whether the plaintiffs are entitled to a decree for declaration and the Mutation No, 102, dated 20-1- 1971 in favour of the predecessor-ininterest of the defendants is wrong, illegal against the law and facts, without authority, vexatious, based on fraud and ineffective upon the rights of the plaintiffs?
OPP
(xii) Relief.
2. Evidence of the parties was recorded. The suit was dismissed vide a judgment and decree, dated 27-11-1993. A first appeal filed by the petitioners was dismissed by a learned Additional Sessions Judge, Sheikhupura on 2-5-1994.
3. Ch. Muhammad Hassan, learned counsel for the petitioners argues that the learned Courts below have misread the pleadings of the parties as well as the evidence on record. According to the learned counsel it stands conceded vide impugned judgment of the learned Additional Sessions Judge itself that the respondents have failed to prove their case yet he proceeded to dismiss the appeal. Mr. Ahmed Waheed Khan, learned counsel for the respondents, on the other hand, contends that the impugned judgments and decrees are in accord with the evidence on record and this civil revision cannot be sustained.
4. I have gone through the copies of the record appended with this civil revision with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties in some detail above. The case of the petitioner is that Hajran Bibi had never gifted away the suit land and she had not got any mutation attested. On the other hand, the respondents have positively asserted that she did make a valid gift in favour of Sharaf Din and delivered possession to him. In view of the said state of pleadings on record it was for the respondents to prove that the deceased lady had made a valid gift and got mutation attested accordingly. D.W.1 is Sultan Ahmad, Patwari who produced the original record pertaining to copy of Mutation No,102 (Exh. P-1).
Rasheed Ahmed is the D.W.2. He is a Naib-Tehsildar who attested the mutation. He has stated that Hajran Bibi had admitted having made a gift and she was identified by Rehmat Ali, Lumberdar and Jhanda and had promised to deliver the possession. Copy of Exh. P-1 is in his hand and signatures.
He also stated that Hadayat Ali, Patwari who had entered mutation in deed in his cross- examination, D.W.2 stated that he did not know Hajran Bibi personally. He says that he had no concern with the entries in the mutation. He says that he does not know as to where Hajran Bibi was residing and as to whether her husband accompanied her or not. He cannot tell the age of the lady. D.W.3 is Rehmat Ali. He has stated that in 1971 he was the Lumberdar and knew Hajran Bibi and had identified her at the time of mutation and she had stated before the Tehsildar that she had gifted away her property to her brother. In his cross-examination he sates that he is not related to Hajran Bibi or Sharaf Din. He does not know as to when Hajran Bibi's father died. He states that the land of Hajran Bibi was cultivated by Sharaf " Din. He admits that husband of Hajran Bibi is alive and that she has two sons. He sates that at the time of attestation of mutation Hajran Bibi's husband was not there but she was accompanied by her son Boota. He states that the Tehsildar had written down the statement of Hajran Bibi.
5. Now Ghulam Rasool has appeared as D.W.4 and he states that 20/22 years ago he was present in the house of the petitioners where Boota petitioner and Sharaf Din were also present; that Sharaf Din told Hajran Bibi that he is proceeding on Hajj and if she wants her share she may take the same in his presence. Hajran Bibi replied that she relinquishes her share in the name of God and Sharaf Din thanked her and proceeded for Hajj and died in Macca where he was burried. Khushi Muhammad, D.W.5 has made a similar statement. Abdul Rehman respondent as D.W.6 has also given a statement to the same effect. Now the learned Additional District Judge,had very rightly observed that there are weaknesses in the case of the respondents. This is so because they have pleaded a valid gift by Hajran Bibi in favour of Sharaf Din, while the evidence has been given of relinquishment which is not their case. It has been admitted by all the D.Ws particularly by D.Ws. 4, 5, and 6 that Hajran Bibi had been happily living with her husband and children; that she had no quarrel with her husband and her children were serving her well. There was thus no occasion for her to gift away her entire property in favour of Sharaf Din, neither is any reason for the same forthcoming on the record. In view of the statements of D.Ws.4, 5 and 6, the entire mutation proceedings are a sham. It is also admitted that even before the said alleged gift or relinquishment, Sharaf Din was cultivating the land. The said Boota petitioner who has been stated to be present when the so-called relinquishment took place as also when the alleged mutation was attested has appeared as P.W.4 and has denied that his mother never made any gift or any relinquishment.
6. I also find that Umer Din, husband of Hajran Bibi was examined as P.W. 3 on 11-5-1992. The story narrated by D.Ws.4, 5 and 6 had not at all been suggested to this witness, who according to the said witnesses was present.
7. The examination of the said entire evidence of the record would reveal that neither a valid gift nor any relinquishment stands proved either in law or in fact. The learned Courts below have been impressed by two facts. One that Hajran Bibi did not challenge the mutation in her lifetime and second that Umer Din had attested the mutation of inheritance of Sharaf Din which included the land of Hajran Bibi.
8. So far as the said first ground is concerned, suffice it to say that it is a case of the petitioners that Hajran Bibi had been in receipt of share-produce in her lifetime both from Sharaf Din and after his death from the respondent. The said fact thus would not be relevant particularly in the absence of evidence of a valid gift or relinquishment. So far as the second reason is concerned, the learned Courts below have lost sight of the fact that Qamar Din appearing as P.W. 3 was not at all confronted with the said fact. Even under the law there is no concept of estoppel by an attestation.
A witness cannot be presumed to be aware of the contents of the documents he is attesting. In the absence of any such confrontation in the witness-box it cannot at all be presumed that Umer Din who had attested the mutation was aware that the land of his wife is also being mutated in favour of her brother Sharaf Din. A reference may be made to the case of Ashiq Hussain etc. v. Nisar Ali etc. (1969 SCM R 341).
9. Even otherwise, the case is squarely covered of the judgment of the Supreme Court of Pakistan in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwer Naqvi, (PLD 1990 SC 1). The petitioners and their mother Hajran Bibi was a co-owner in the suit land and there is no question of the suit becoming barred by time or the respondents acquiring any adverse possession.
10. For all that has been discussed above, the civil revision is allowed. Both the judgments and decrees of both the learned Courts below are set aside and the suit of the petitioners is decreed, as prayed for, with no order as to the costs.