SH. HAKIM ALI, J.--- Through this civil revision, petitioner has approached this Court to get a judgment and decree dated 2.4.1994 passed in Civil Appeal No. 57 of 1993 (Mst. Zainab Mai and another v. Ghulam Nabiand another) by learned Additional District Judge, Bahawalpur, set aside which had reversed the judgment and decree dated 26.'10.1992 of the learned Civil Judge, Ahmedpur East passed in suit titled "Ghulam Nabi and others v. Mst. Zainab and others".
2. A Mutation No. 484 with regard to an oral gift sanctioned on 20.12.1918 was challenged by Ghulam Nabi and others (successors-in-interest of Khuda Bakhsh deceased) against Mst. Zainab Mai and others (legal representatives of late Hafiz Karim Bakhsh) on 22.1.1985. Disputing the validity of this transaction which had taken place as long as 66 years ago, it was stated in the plaint by Ghulam Nabi and others that Khuda Bakhsh was their predecessor-in-interest who was owner of agriculture lands. In Mouza Ismailpur Tehsil Ahmedpur East and had allegedly remained in possession as owner till his death and that Mutation No. 484 sanctioned on 20.12.1918 in favour of Hafiz Karim Bakhsh, predecessor-in-interest of Mst. Zainab Mai and others defendants was against facts, illegal and the result of collusiveness of the revenue officials with aforesaid Hafiz Karim Bakhsh. Another Mutation No. 953 sanctioned on 19.11.1984, which was sanctioned in favour of Mst.
Zainab Mai and other defendants as legal representatives of Hafiz Karim Bakhsh was also challenged in the aforesaid suit. It was averred in the plaint that Khuda Bakhsh, deceased was shown in the impugned mutation to have no children while he was never to death, although aforesaid Khuda Bakhsh had contracted three marriages and the plaintiff, were his legal representatives. So, according to them this mutation was against ground realities.
3. Refuting the plea raised by the plaintiffs in the plaint, the defendants raised preliminary as well as factual objections. At the very out set, in para. No. 1 of preliminary objections, defendants asserted that the suit was hopelessly time-barred, as the gift-dated 20.12.1918 was challenged in the year 1991.. As regards the possession they alleged that the defendants were in possession of the lands in dispute and not the plaintiffs . It was also urged that the plaintiffs had no right to challenge the gift, which had been completed, in fact and under the law, in the year 1918. It was also included in the written statement that after the sanction of the aforesaid mutation, the facts recorded in it were continued to be entered as such in the next coming record-of-rights, which were prepared thereafter. The entries of these records were clearly known to them but were not objected by them.
Issues were framed by the learned Civil Judge and the parties led their oral as well as documentary evidence in the case.
4. The learned Civil Judge decreed the suit on 26.10.1992 against which the appeal was accepted by the learned Additional District Judge on 2.4.1994 and the suit was dismissed. Hence, this civil revision.
5. Learned counsel appearing on behalf of the plaintiffs-petitioners has argued that the learned Additional District Judge had wrongly shifted the burden of proof of issue No. 2, from defendants to the shoulders of the plaintiffs, which was framed with regard to the limitation of the instant suit. It was stated that suit could not be held to be barred by limitation as it had raised the question of inheritance and the mutation in question had got no presumption of truth. It was further argued that the defendants were bound to prove the factum of gift, as they had failed in this regard, so the suit was to be decreed in favour of plaintiffs-petitioners. Learned counsel has also referred to evidence of the witnesses produced by defendants to prove that the gift was not proved on the record from the statements of those witnesses.
6. Opposing to the arguments of the learned counsel for the petitioners, the learned counsel for the respondents has replied that the donor had remained alive even after the transaction of gift sanctioned through the impugned mutation, and had expired in the year 1962 but had not challenged the validity and the genuineness of the factum of the gift in his life-time. There was no cogent explanation by the plaintiffs as to why they and their predecessor-in-interest had remained silent and had not filed the suit within limitation. As regards the factum of gift, they have stated that Hafiz Karim Bakhsh was not an heir and was not a co-sharer prior to the sanctioning of the gift but had remained in possession of the lands in dispute on the basis of gift. As to how Hafiz Karim Bakhsh entered and could enter into the possession if there was no gift has not sufficiently been proved and explained. The donor having not challenged the gift even after about 44 years of his life, the plaintiffs-petitioners who were successors-in-interest cannot impugn the validity of the gift.
It has further been stated by the learned counsel that Ghulam Nabi, who was the eldest son of Khuda Bukhsh was born in the year 1932 and the statement of the donor being issueless recorded in the mutation was correct and so the fact endorsed into it with regard to the wife of the donor.
According to the learned counsel, the marriage of the donor had taken place in the year 1927.
Therefore, the words {{URDU TEXT}}ihr:-.):4z-53J1)/1--zoibtille_zi.5,.-4.,,-({{URDU TEXT}}4.Written in the mutation were correct. He has referred to citations reported in NLR 2004 Civil 207 (Gul Nawab, etc. v. Naimat Ullah, etc.) in support of his version that a declaratory suit filed to challenge mutation, which was sanctioned 71 years ago was held hopelessly time-barred. As regards the validity of mutation, the learned counsel submitted that a gift wherein possession had been delivered was irrevocable and was not to be compulsorily registered. It vvas an oral gift, which was permissible in the eyes of law.
He has sought support from 1999 MLD 1687 (Lah.) (Mst. Hamida Bibi v. Wali Muhammad). The learned counsel has further placed his reliance on 1994 MLD Lah. 734 (Allah D/tta v. Mahboob A.I and others) in which a gift mutation was challenged on the basis of misrepresentation, fraud and it being a fictitious transaction , the onus to proof that gift in such case was placed upon the plaintiffs who had filed a suit to challenge the validity of mutation.
7. After considering the arguments of the learned counsels for the parties, examining and scanning the record minutely, my findings alongwith reasons are delineated in the following paras.
8. Before discussing the case on merits it is necessary to address to the important points of factual and legal importance, which have been shaped in issues Nos, 2, 4 and 5, in the case, which are:-
(2) Whether the suit is barred by limitation? OPD".
(3) Whether the impugned mutation No. 484, dated 20.12.1918 and No. 953, dated 19.11.1984 are illegal, void, against law and facts and liable to be cancelled? OPP
(5) Whether the plaintiffs are owners in possession of the suit property? OPP.
These issues have raised factual and legal controversies for resolution, which are necessary for the just decision of the case. The learned counsel appearing on behalf of the petitioners-plaintiffs has raised two main objections with regard to these questions:-
(i) The incorrect placement of burden to prove issue No. 4 upon the plaintiffs by he learned Appellate Court.
(ii) The suit was not barred by limitation as it had involved a question of inheritance.
9. To Judge the correctness and soundness of the first objection presented by the learned counsel, I would like to say that a person who comes into the Court especially for the cancellation of document/annulment of a contract or declaration of a record, to get it declared to be illegal and without lawful authority or of such kinds averments has to prove his case because he has asserted against the tenor of an old document and wanted to get the declaration from the Court against the validity of facts recorded in a document of more than 30 years old of age. A material question crops up as to why 30 year's (Old Section 90 of the Evidence Act, 1872 and Article 100 of Qanun-e-0Shahadat, 1984) of passing to a document creates a presumption in favour of the validity of a document. The answer and philosophy behind it is evident. After about or within this period plus counting their age at the time of transaction a generation is perished who has settled a transaction. Parties, witnesses generally are vanished from the scene of this word. So, the presumption of correctness (although rebutted in some cases) becomes the fate of that document. So, to rebut such document, as the plaintiffs have approached to the Court after this period, they are bound to prove their case, because they have challenged not only the validity of mutation but also the facts/events recorded therein on the basis of collusiveness, against facts and law, They want that the Court should believe their version of invalidity with regard to the document must come within the prescribed period of limitation for such purpose. So, the issue was rightly framed in such a manner that burden was placed upon the plaintiffs. It may be reminded here that. Old transactions recorded in revenue record such as mutations and the entries of those carried into record-of-rights, if uninterrupted gets initial presumption of correctness. From 1918" uptill the filing of the suit, at least two settlements of 924 and that of 1932 had occurred in-between these mutations and the suit, which had got presumption of correctness, but were not challenged by the plaintiffs. The plaintiffs have knowingly not produced the record of rights for the period commencing from the sanctioning of impugned mutation up till the institution of the suit except one Jamabandi of the year 1982-83 (Ex.P-2).
The non-production of all these permanent and periodical record-of-rights have not only cast doubt to the correctness of the version of the plaintiffs but have raised adverse presumption against them also. This fact goes to establish that the entries with regard to possession and of ownership, in fact were recorded against the plaintiffs. Due to non-production, provisions of Article 129(g) of the Qanun-e-Shahadat, 1984 have become fully attracted to the instant case. As regards the improper framing of issue, it is settled that it cannot be considered a ground to remand a case or to set aside a judgment/decree unless it has caused a grave prejudice or injustice to a party. As the learned counsel has not referred to any such prejudice having been caused to the plaintiffs- petitioners due to this fact, therefore, it cannot be given any weight. It is also pointed out here that the onus of an issue initially shown on a party, can be shifted from one party to another during the pendency of proceedings of a case. When a fact is proved or an issue is proved through evidence, the burden to disproof is in fact the change of the onus. There are many instances in which the onus to prove is changed or shifted during the pendency of proceedings from one party to other. It is not a hard and fast rule that onus to prove cannot be shifted. This point of agitation cannot be considered to be a matter of material illegality or irregularity, which should attract the exercise of revisional jurisdiction of this Court.
10. The other main remonstration against the impugned judgment, by the learned counsel for the petitioners is that this was a case of inheritance; therefore, in cases of such nature, the question of limitation was not involved but the learned Court below has not correctly appreciated this legal aspect. To support his argument, he has placed reliance on the following authorities, which have laid down this
(i) NLR 2003 Rev. 100 (Muhammad Akram, Muhammad Aslam v. Altaf Ahmad).
(ii) KLR 2003 SC 330 (Sherbaz Khan and others v. Mst. Malkani Sahibzadi Tiwana).
(iii) 1973 SCMR 284 (Muhammad Hakim v. Sher Alam).
(iv) 1987 SCMR 1295 (Shahana (deceased) through Mst. Rashidan Bibi and 2 others v. Khushi Muhammad and 2 others).
(v) PLD 1964 S.C. 143 (Shamshad A.I Shah and others v. Syed Hassan Shah and others).
(vil PLD 1964 S.C. 559 (Muhammad Jamil v. The Chairman Industrial Court, West Pakistan and The Orient Match Factory Limited, Shandara).
(viii 2000 CLR 687 (Abdul Rahim, etc. v. Mrs. Jannatay Bibi).
(viii) NLR 2003 Civil 108 (Juma Khan and others v. Mst. Bibi Zenab and others).
(ix) NLR 1995 S.C.J. 339 (Wali, etc. v. Akbar, etc.).
(x) NLR 1984 Civil 529 (Shamas-ud-Din v. Mst. Jewan, etc.).
(xi) 1997 SCMR 281 (Nazir Ahmad and others v., Abdullah and others).
11. But I cannot endorse the view propounded by the learned counsel for the plaintiffs/petitioners because it is not a case of inheritance rather it is a case where an old gift transaction of 1918 is being sought to be declared illegal. Unless this declaration is granted, no question of inheritance arises. It may be noted that after the death` of a person the legal heirs of the deceased becomes spontaneously owner of the property left by the deceased when it is proved that the property was owned by the deceased at the time of his death. The mechanical devolution without any intervention or declaration from any Court, authority or . Forum, in fact gives birth to the right of ownership from the deceased but it has necessarily to be shown that the property was abandoned or left by the deceased,. Upon his death. The successors, who have become owner, their ownership thereafter cannot be taken or snatched away except by the method/manners, prescribed and provided by law. In other words, when a deceased cannot be held to be owner of a property at the time of his death, then the question of inheritance cannot be brought into, invoked or agitated unless the impediment of the way is washed away by the plaintiffs/petitioners through a legal way.
When an obstacle cannot be removed, the question of inheritance or its benefits cannot come into play. In the instant case, where the plaintiffs had to get rid of the obstacle of the impugned gift and the entries of old mutation which were carried into subsequent Jamabandis, which had expanded over a period of 66 long years, now could not claim inheritance. If that gift is disproved by them on the record, then they would become legal heirs to claim the inheritance of K.Huda Bakhsh, deceased. When a hurdle, obstacle or impediment lies in-between the claim of inheritance and the ownership, then the case would not to my mind be termed as a. Case of inheritance. And the plaintiff has to approach the Court to get a document cancelled, record to be asseverated null and void, or the transaction affirmed annulled, within the prescribed period of its limitation. So, in this case the learned counsel for the respondents has rightly placed reliance on NLR 2004 Civil 207 (Gul Nawab V. Na/mat U//a', etc.) in which a declaratory suit filed after 71 years against mutation of its attestation was held badly barred by limitation. To the same effect is another reported judgment 2001 MLD 1790 (Miskeen and others v. Mst. Khudeja alias Mirza Noor and others).
12. Another important fact, which has refrained me to accept this _revision, is the inception of possession/ownership and its continuance up till the filing of the suit.
13. Both the parties have produced oral as well as documentary evidence on the record, which has not impressed me much.
The reason is obvious as the transaction relates and dates back to 1918, and it is not possible to produce witness of a person, who had seen or participated in the settlement and completion of the transaction, the oral evidence in such would in fact be based mainly upon hearsay. In such situation, the only material evidence would be the documentary evidence, which I have scanned it in the following Paras:- 14; I am conscious of the fact that the transactions recorded in a mutation are to be proved independently and especially by those persons who are beneficiary of it. There is no cavil to this proposition but there are also exceptions to it A transaction recorded in the mutation, carried into Jamabandis for more than thirty years (Article 100 of the Qanun-e-Shahadat Order, 1984), never objected to by the person entitled to challenge it, but acted upon without any impunity or interruption, and corroborated by the factum of possession has to be given its due weight. Into evidence , plaintiffs have produced only . Three documents Ex.P-1, Mutation No. 484, dated 20.12.1918, Jamabandi for the year 1982-198.3 as Ex.P-2 while Khasra Girdwari for the year Kharif 1983 to Kharif 1984 as Ex.P-3. It is interesting to state that plaintiffs although have challenged Mutation No. 953, dated 19.11.1984 regarding the inheritance of Noor Muhammad son of Hafiz Karim Bakhsh, in their suit, yet failed to produce it into their evidence. The impact of which is evident that it would be considered that plaintiffs have abandoned this fact. The analysis of Mutation No 484, dated 20.12.1918, the main disputatious document show that the Revenue Officer in his attestation order has given a correct and true picture of the events, occurring before him. He has not felt shy to record that the donor had no wife and was issueless person who was near to death but was gifting this land to Hafiz Karim Bakhsh who was a Hafiz Quran and pious man, and was engaged in imparting of religious education to children/students f for whose residence and meal, he was managing. From these sentences and inquiry by the Revenue Officer, the real intent of donor and the circumstances, which prompted the donor to make the gift, becomes clear. From the deeper examination of the evidence of the parties, these facts are supported and it is found that plaintiffs had not taken birth at the time of attestation of mutation. So, this gift was in fact made to participate and to take part into the religious and pious deed/work, started by Hafiz Karim Bakhsh, as indicated above. No cogent evidence has been brought on the record to disprove these facts.
The donor remained alive after about 40/50 years of this mutation but he did not raise any objection to it. This acquiescence on his part in fact has marred the fate of the case of the plaintiffs.
Upon death of Hafiz Karim Bakhsh, his ownership devolved upon his son Noor Muhammad, who died in the year 1984 and his inheritance Mutation No. 953, dated 19.11.1984 (not produced into evidence although copy is placed in the revision) had proved that this third generation- ownership was being kept in tact through the revenue record and no challenge was being put to it. The intervening succession/the devolution was not challenged. Therefore, it can safely be held that gift in fact was made which continued even till the filing of the suit.
16. Possession factor plays a vital role in determining the factum of gift. As earlier noted, plaintiffs have failed to produce the copies of Jambandis and Khasra Girdawaris for the pre and post period of the impugned gift. Copy of Jamabandi for the year 1982-83 (Ex.P-2) does not contain the names of plaintiffs in the column of ownership or even of Khuda Bakhsh son of Ghulam Mustafa, donor.
Due to production of this Jamabandi, it is proved that petitioners/plaintiffs have not been recorded owner during the period between Mutation No. 484 to the date of filing of the suit, otherwise they would not have withheld the copies of those documents. As a consequence, it shall also be presumed that defendants are continuously being recorded as owners as their names find mention in column of ownership of the aforesaid Jamabandi.
17. Plaintiffs have tried to prove their possession through manoeuvring in the revenue record. In column of cultivation, in Khatuni No. 552, the name of Ghulam Nabi and others have been shown as "Khud Kasht" which entry was got recorded in this column in the Jamabandi on the basis of Khasra Girdawari (Ex.P-3), with the apparent collusion of revenue officials because for the words "Khud Kasht", there was no basis shown through any record, to be incorporated in it. To rebut these entries, defendants/respondents have produced Ex.D-1 to Ex.D-3, copies of Khasra Girdawari from Kharif 1975 to Rabi 1985, in which possession of defendants is shown.
18. So, from this analysis, it is proved that possession of defendants/respondents has continued prior to the filing of the suit, which has been retained even upto the filing of the suit, while the entry showing possession of plaintiffs/petitioners upon two Killas (16 kanals) out of the total lands of 93 kanals, 9 marlas of the khata does render them any help to disprove the possession of the defendants, which has got the backing of ownership also.
19. 20. 1 9. The not result of the above discussion is that plaintiffs/petitioners have failed to prove illegal, fictitious, collusive, and against real facts the impugned gift Mutation No. 494, dated 20.12.1918.
20. Accordingly, the suit of the plaintiffs /petitioners has rightly been dismissed by the learned Appellate Court, in which judgment no jurisdictional defect/flaws have been found, attracting the exercise jurisdiction of this Court under Section 115 of the C.P.C. So, the revision is dismissed with no order as to costs. .