' JAVED IQBAL, J.---This petition for leave to appeal is directed against the order dated 25-6-2001 passed by learned Single Judge of Lahore High Court (Rawalpindi Bench) in Chamber whereby the revision petition assailing the concurrent findings duly arrived at by learned Civil Judge, Chakwal, vide judgment 31-5-1989 and affirmed by learned Additional District Judge vide judgment dated 6- 1-1994 has been dismissed.
2. Briefly stated the facts of the case are that Feroze Khan and Mst. Fattan instituted a suit for declaration to the effect that petitioner got sanctioned a forged, fabricated and fictitious Hiba mutation with the connivance of Revenue Staff showing that the donor namely Sher Zaman had gifted his land in their favour which in fact was never gifted and possession whereof was also not delivered to them. The above named respondent also prayed for permanent injunction restraining the petitioner from any interference. The suit was vehemently contested by the petitioner, according to whom a valid gift was executed concerning land in question by Sher Zaman (donor) which was mutated in their names vide Mutation No,3646. In view of the divergent pleadings of the parties issues were framed and after recording the evidence pro and contra the learned trial Court decreed the suit vide judgment and decree dated 31-5-1989. Being aggrieved an appeal was preferred by the petitioner which met the same fate and dismissed by learned Additional District Judge vide judgment dated 6-1-1994. The petitioner preferred revision petition assailing the judgment/decree dated 6-1-1994 passed by learned Additional District Judge which was dismissed vide order impugned.
3. Heard Chaudhry Muhammad Tariq, learned Advocate Supreme Court on behalf of petitioners who mainly contended that the gift made in favour of petitioner is genuine and legal, authenticity whereof was never challenged by the donor himself and accordingly the respondents have no locus standi to challenge the same. It is urged with vehemence that Tehsildar concerned had full authority to appoint Girdawar as local commission by whom the statement of donor was recorded on the basis whereof Mutation bearing No,3646 was got recorded after completion of all the necessary legal formalities which aspect of the matter escaped notice of the learned trial, appellate and revisional Courts. In order to substantiate the said contention it is argued that the learned Tehsildar had passed order on 27-11-1978 for recording the statement of Sher Zaman (donor) and in compliance whereof the statement of donor was recorded and no illegality whatsoever has been committed by Girdawar. It is also pointed out that insofar as admission regarding possession of the land in question by Muhammad Yaqoob (petitioner) is concerned that being an innocent admission would have no bearing on the merits of the case and can be ignored safely in view of the fact that the land in question was mutated on the basis of gift made by Sher Zaman (donor).
4. We have carefully examined the contentions as agitated on bahalf of the petitioners in the light of relevant provisions of law and record of the case. We have thrashed out the entire evidence. The judgment dated 31-5-1989 passed by learned Civil Judge, judgment dated 6-1-1994 passed by learned Additional District Judge and order impugned have been perused carefully. A carefully scrutiny of the entire record and evidence would reveal that no valid gift deed was ever executed in favour of petitioner whose entire case revolves around Hiba Mutation bearing No,3646 of village Dhudhial, Tehsil Chakwal, the then District Jhelum. It is worth mentioning that uncalled for pivotal role which smacks of mala fides had been played by Girdawar who allegedly got recorded the statement of Sher Zaman (donor) on the basis whereby verbal gift was made a base to get the land in question mutated by means of Mutation No,3646 with the connivance of Patwari. We are not persuaded to agree with Chaudhry Muhammad Tariq, learned Advocate Supreme Court on behalf of petitioners that Girdawar had acted in accordance with order dated 27-11-1978 passed by Tehsildar for the reason that .No such order could be produced before the Court which only finds a mention at the back of mutation entry having no legal sanctity whatsoever. It may not be out of place to mention here that Girdawar had recorded the statement of Sher Zaman (donor) who admittedly was ninety years of age and the Girdawar had not appeared before any Court to prove that he had recorded the statement of Sher Zaman (donor) under the direction of Tehsildar.
Whether such direction could have been given or not by Tehsildar would be another question, determination whereof is not necessary as order dated 27-11-1978 allegedly passed by Tehsildar could not be produced in Court and thus can be treated as nonexistent.
5. The possession of land in dispute was never handed over to I petitioner and no evidence would be required in this regard as petitioner Muhammad Yaqoob has admitted it himself. We are not persuaded to agree with Chaudhry Muhammad Tariq, learned Advocate Supreme Court that admission of Muhammad Yagoob be treated as an innocent admission as it would be a new phenomenon having no legal foundation at all as no one would like to make any admission against his own interest unless the same was true. In this regard reference can also be made to Article 31 of the Qanun-e-Shahadat Order, 1984 and thus the principle that no one would make any admission against his own interest has rightly been taken into consideration by the learned forums below.
6. The delivery of possession of the land in question was essential ingredient to constitute a valid gift, is lacking in this case and thus gift without, possession being ab initio void cannot be made to get the land in question mutated in favour of petitioner. In this regard we are fortified by the dictum laid down in the following cases:--
(i) Shamshad A. Shah v. Hassan Shah (PLD 1964 Supreme Court 143);
(ii) Hedaya (Vol. III, Second Edition, page 482);
(iii) Amir Ali's Muhammadan Law (Vol. I, Chap. V);
(iv) Baillie's Digest of Muhammadan Law (Part 2, Second Edition, pages 203, 204);
(v) Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Nair and another (AIR 1945 PC 54);
(vi) Jamma-ush-Shittat;
(vii) Sharaya-ul-Islam;
(viii) Ghulam Hassan and others v. Sarfaraz Khan and others (PLD 1956 SC (Pak.) 309);
(ix) Sadik Hussain Khan v. Hashim Ali Khan (LR 43 IA 212), and
(x) Bashir Ahmed v. Muhammad Rafiq (2002 SCM R 1291)
7. We are of the considered view that factum of gift could not be proved by adducing cogent and convincing evidence. Besides that there appears to be no justification for the exclusion of legal heir from the inheritance of Sher Zaman (donor) which makes the authenticity and genuineness of the gift doubtful.
8. The impugned order is eminently correct, just and does not suffer from any error of jurisdiction and legal flaw calling for interference by this Court in the concurrent findings of fact arrived at by the learned trial Court upheld by the learned Appellate Court and concurred by the learned High Court. The petition being devoid of merits is dismissed.