MAULV1 ANWAR-UL-HAQ J.-- On 14.8.1983, the respondent filed a suit against the petitioners. In the plaint, it was stated that the last owner of the suit land was Ahmed Din who had two wives, namely, Allah Jawai, the mother of the respondent and Mst. Allah Wasai, the mother of the petitioners; that Ahmed Din died on 18.10.1982 and remained in possession of the suit land as its owner till his death; that petitioner No. 1, Bashir Ahmed (Predecessor-ininterest of petitioners Nos. 2 to 8) managed to get a gift mutation No. 16 attested on 9.12.1972 purporting tc transfer the entire suit land in favour of the said petitioner; that his father had never gifted away the land to the said petitioners. In their written statements the petitioners objected that the suit is barred by time. On merits, they asserted that their father validly transferred the suit land in their favour by means of the said mutation.
Reference was also made to a suit earlier filed by the respondent. The suit was earlier dismissed summarily by the learned Trial Court on 23.11.1983. On an appeal filed, by the respondent, the learned Addl. District Judge, T.T. Singh remanded the case vide an order dated 26.3.1984. After the remand following issues were framed:-
(1) Whether the suit is barred by time? OPD
(2) Whether the suit is not maintainable in the present form? OPD
(3) Whether the plaintiff has no cause of action and locus standi? OPD
(4) Whether the suit is barred by res judicata? OPD
(5) Whether mutation of gift No. 16, dated 9.12.1972 by Ahmed Din in favour of defendants Nos. 1, 2 is illegal, void, collusive and based on fraud? OPP.
(6) Whether the plaintiff is entitled to the injunction prayed for? OPP Evidence of the parties was recorded. The learned Trial Court dismissed the suit vide a judgment and decree dated 29.11.1987. The respondent filed a first appeal. This time again the judgment and decree of the learned Trial Court was set aside and the case was remanded vide an order dated 27.9.1992, after framing the following additional issues:- (6-A) Whether plaintiff is owner in possession of 1/4th of the disputed land being legal heir of Ahmad Din deceased? OPP (6-B) Whether Ahmad Din deceased validly gifted the disputed land in favour of defendants Nos. 1, 2 and impugned mutation was rightly sanctioned in their favour by the revenue authorities? OPD (6-C) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction if so what is the correct valuation of the suit for both purposes? OP parties.
(6-D) Whether the plaintiff is estopped by his own conduct to institute the present suit? OPD.
Against this remand order both the parties filed Civil Revisions in this Court which were dismissed on 25.5.1993. The Trial Court conducted proceedings in terms of the said remand order and proceeded to dismiss the suit vide a judgment and decree dated 25..7.1993. The respondent feeling aggrieved filed a first appeal and this time the appeal was allowed by a learned Addl. District Judge T.T. Singh vide a judgement and decree dated 28.9.1995 and the suit of the respondent was decreed.
2. Mr. A.G. Tariq, Advocate for the petitioner argues that it had come on record that the respondent was not only disobedient but rude and even treated his father very badly and it was with intent to completely dis-inherent him; that Ahmed Din- proceeded to gift away the property to his said two sons. Further argues that the petitioners did discharge onus of the said issue No. 6-B and that the learned Addl. District Judge has mis-read the evidence on record while passing the impugned judgment and decree. Finally argues that since the mutation stood incorporated in revenue record the rigours of the several judgments of this Court as also of the Honourable Supreme Court of Pakistan in the matter of mutations transactions would not be applicable in the present case.
3. Mr. Atta Ullah Chaudhry, learned counsel for the respondent, on the other hand, argues that it was the learned Trial Court who failed to comprehend the impact of issue No. 6-B and proceeded in the matter as if it was for the respondent to disprove the factum of gift. Supports the impugned and decree of the learned Addl. District Judge.
4. I have gone through the record, copies whereof are appended with this Civil Revision, with the assistance of the learned counsel for the parties. Before I proceed to deal with the first two contentions of the learned counsel for the petitioners, I deem it proper to deal with the said third contention with reference to the incorporation of the mutation in the revenue record. I am afraid in view of the latter judgment of the Honourable Supreme Court of Pakistan in the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 S.C.M.R. 1245), there is no matter of doubt that the mere fact that the mutation stands incorporated in the revenue record would not absolve the beneficiary thereof from proving the transaction evidence by the said mutation.
5. Coming to the said first contention of the learned counsel, I am afraid instead of promoting the case of the petitioners the same derogates therefrom because to my mind no doubt a Muslim can gift away his property to any one which, of course, results in dis-inheritance of all or some of the heirs but in case the transfer is made with intent to deprive the heirs of their right of inheritance the gift would be void on this short ground alone. When confronted with the said proposition, the learned counsel does not press the said contention.
6. Now in order to discharge the onus of issue No. 67- B which lay squarely on the said donees, they produced Ahmed Khan, DW-2, who is a Revenue Officer, who attested the mutation. He stated that mutation No. 16 was entered vide report .No. 96, dated 27.11.1972 on 5.12.1972 and he attested it on 9.12.1972; that Ahmed Din donor was identified by Abdul Ghafoor, Lumberdar of Chak No. 712. Hassoo son of Muhammad, Khewat Day, in his cross- examination, states that he attested the mutation in the revenue estate of 58/1 in a general assembly DW.3 is Saeed Ahmed, Patwari who had entered the said mutation No. 16. He states that mutation was entered in his presence on 9.12.1972. In his cross-examination he/first stated tha; mutation was entered at the spot in 58/1 but then stated that the mutation was attested in Chak No. 7/12 at the Dera of Abdul Ghafoor, Lumberdar by the Tehsildar. Revenue Officer appearing as DW-2. He stated that the mutation was attested in Tukra 58/1 at the Dera of Rehmat A.I. This is the entire evidence in support of the said transaction. A bare look en the said statement made by the Tehsildar and Patwari and the said persons who allegedly identified Ahmed Din go to skew that all the three witnesses are making statements regarding three different transactions. Apart from this it will be seen that the mutation by itself is not a document of title even if it is. Proved that it was validly entered and attested.. There is no evidence at all of the factum of the gift itself on record.
None of the two donees have opted to appear and they have put in their attorney Abdul Wahid in the witness-box as DW-5. There is not a word in the statement of this witness as to when Ahmed Din made a declaration of gift as to whether it was accepted and whether possession was delivered under the gift. On the other hand, in his cross-examination he has stated that he is not a witness to any , mutation or other transaction. In this stage of evidence on record it cannot be said that the learned Addl. District Judge has misread the evidence on record while reversing the findings of the learned Trial Court on issue No. 6-B. There is accordingly no force in this Civil Revision which is dismissed, leaving the parties to bear their own costs.