On 26-5-1985 Mst. Rajan the deceased petitioner (hereinafter to be referred to as the petitioner) filed a suit against the respondent. In the plaint it was stated that the suit property mentioned therein was owned by her brother Rehmat Ali son of Nadir Khan who died on 28-8-1984 after a long illness. A mutation purporting to be a gift of the said property attested in favour of the respondent on 13-11-1984 was questioned on the ground that the deceased had never gifted the land through the said mutation. It was additionally stated that 3/4 years before his death, the deceased had lost his senses, was bed ridden and unable to move and as such was suffering from Marazul Maut. He was survived by the petitioner as sister and Ibrar Hussain respondent as brother's son of said Rehmat Ali. In his written statement the respondent stated that the property had been validly gifted to him by the deceased and he was in his senses and that the delivered possession. It was further stated that at the time of mutation the petitioner was also present and opted to remain quiet. It was then stated that the mutation was attested in presence of witnesses by the Tehsildar. Issues were framed. Evidence of the parties was recorded. The learned trial Court proceeded to decree the suit vide judgment and decree, dated 22-6-1992. A first appeal filed by the respondent was, however, allowed by a learned Additional District Judge, Rawalpindi who dismissed the suit of the petitioner on 24-10-1995.
2. Learned counsel for the petitioner contends that the learned Additional District Judge has acted without lawful authority while passing the impugned judgment and decree inasmuch as there is no evidence in support of the said gift on record. Learned counsel for the respondent, on the other hand, argues that the petitioner had taken upon herself the burden to prove that the gift was made during Marzul Maut and since she failed to discharge the said onus, the learned Additional District Judge has acted with jurisdiction and in accordance with law while dismissing her suit.
3. I have gone through copies of the records, appended with this petition, with the assistance of the learned counsel for the parties. I have already reproduced above the relevant portions of the respective pleadings of the parties. Now the gift is stated to have been made by means of a mutation attested on 10-11-1984. Now a plain reading of the plaint shows that in the first instance the deceased lady stated that her brother had never made a gift of the property in favour of respondent. Thereafter she proceeded to state the condition of the alleged donor. Now the respondent positively asserted that a valid gift was made, possession was delivered and not only the donor but the petitioner also appeared before the Tehsildar who attested the mutation in presence of the witnesses.
4. I have examined the evidence on record in the light of the said pleadings of the parties. Before I proceed further I may state here that in the case of Muhammad and others v. Sardul PLD 1965 Lahore 472. This Court laid down the criteria to prove the transaction evidenced by a mutation when it is disputed. It was insisted that the original mutation, the Patwari who entered the mutation, the witnesses who identified the transferor and the officer who attested the mutation are to be produced. Similar is the view of the learned Peshawar High Court. In some earlier judgments it was observed that where the mutation stands incorporated in the Revenue Records, the presumption of correctness would attach to the said entries. However, in a latter judgment in the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 the Hon'ble Supreme Court of Pakistan has observed that even where a mutation stands incorporated in the Revenue Records, in case of a dispute the beneficiary of the mutation has to prove the transaction independently of the entries of the mutation.
5. Needless to state that the mutation was attested on 10-11-1984 and the suit was filed on 26-5- 1985 and obviously it was not even incorporated in the Revenue Records.
6. Now it is a matter of record that the record of the said original mutation was neither summoned nor produced. The Patwari who entered the mutation was not produced. The officer who attested the mutation was not produced. Copy of the mutation EXh.P.1 discloses that Gulab Pattidar and Khan Bahadur Lumbardar identified the deceased Rehmat Ali on 25-8-1984. Out of these two persons only Gulab was produced as D.W.1 Now this witness states that when Rehmat Ali fell ill, he started living with the respondent who bore expenses of his treatment and there--after his death expenses and that before he died Rehmat. Ali got the mutation of gift attested in favour of Rehmat Ali and that he and the petitioner were present before the Tehsildar when he attested the mutation.
Now in his cross-examination the witness admits that Rehmat Ali used to live with the petitioner who used to look after her. About a month or so before the mutation the respondent who was working for gain in Karachi came to the village and left for Karachi 10/15 days after the mutation.
The respondent himself did not enter the witness-- box instead one Khan Muhammad, attorney appeared as D.W.2. He also stated treat Rehmat Ali used to live with the petitioner and when he fell ill he came to the respondent and then proceeded to make a statement before the Tehsildar at Chak Baili. He admits that he was not present when the mutation was entered but was there when it was attested.
7. It will be noted that unlike D.W.1 this witness does not state that the petitioner was also present.
Now the petitioner has entered the witness-box as P.W.3 and it has not been suggested to her that she was present at the time of attestation of the mutation.
8. It will thus be seen that there is no evidence on record of the factum of gift itself. None of the two D.Ws. Has even uttered a word that the possession was delivered to the respondent by the deceased under the gift. E None of the said two witnesses had stated that the deceased made a declaration of gift in favour of the respondent. There is thus not an iota of evidence on record in support of the alleged gift in favour of the respondent by the deceased Rehmat Ali.
9. Now coming to the judgment of the learned Additional District Judge I note that he got himself involved in the controversy as to when Rehmat Ali died. It is true that in the plaint it was stated that Rehmat Ali had died on 28-8-1984 whereas according to the death certificates Exh.P.2 and D.3 he died, on 13-11-1984. Now the learned Additional District Judge in the said process lost sight of the fact that even if he was to conclude that Rehmat Ali died on 28-8-1984 nothing would have turned on the same as the statement was recorded on 25-8-1984 and had the respondent proved the factum of gift in his favour and a valid mutation thereafter, then notwithstanding the fact that the deceased had died before attestation of the mutation on 10-11-1984, the mutation could have been treated as valid. The learned Additional District Judge also opted to be oblivious of the fact apparent on the face of the record that no evidence worth its name is there in support of the alleged gift in favour of the respondent.
10. Having thus examined the record find that the learned Additional District Judge has committed material irregularity in the exercise of his jurisdiction while reversing the judgment and decree of the learned trial Court and holding that valid gift was made in favour of the respondent by the deceased Rehmat Ali. This civil revision accordingly is allowed. The judgment and decree, dated 24-10-1995 of learned Additional District Judge is set aside, while the one passed by the learned trial' Court on 22-6-1992 is restored. The result' would be that the petitioner shall be deemed to be the co-owner in possession' of 1/2, scare in the suit-land while the remaining 1/2 shall vest in the respondent as brother's son of the deceased Rehmat Ali. No orders as to costs.