This civil revision assails judgment and decree dated 10.3.1996 passed by the learned Additional District Judge, Kalurkot, accepting appeal of Respondent No, 1 and dismissed suit of the petitioners by reversing judgment and decree dated 27.9.1995 passed by the learned trial Court.
2. A short factual background of the case is that one Mst. Sahib Khatoon wife of Jam Ali was owner in possession of 120 kanals of land ,allotted to her in Chak No, 3 (Rakh Rulay Wala) Tehsil and District. Bhakkar, under Chashma Barrage Scheme vide Mutation No, 43 sanctioned on 21.11.1989.
She had five daughters, out of whom two namely, Mst. Ghulam Zainab and Mst. Alam Khatoon, claimed an oral gift of the entire land, in their favour as their mother Mst. Sahib Khatoon, was claimed to be living with them throughout her life. These two daughters of Mst. Alam Khatoon filed a suit for permanent injunction against their sisters and descendents of sisters, who had died, raising their title on the basis of above-mentioned oral gift by Mst. Sahib Khatoon and claimed therein that they are owners in possession of the land. and had also paid all the installments and dues which were payable against the land allotted to their mother and thus prayed that respondents should not interfere in their possession.
3. Respondent No, 1 besides resisting suit by the petitioners by filing written statement, filed a separate suit for declaration, wherein Ghulam Rasul and Ghulam Muhammad respondents were also defendants. to the effect that he is owner in possession of the suit property on the basis of an agreement of Hiba dated 1.7.1974. This suit was resisted by the petitioners on the similar basis, as urged by them in their plaint.
4. Both these suits were consolidated by the learned trial Court and consolidated issues were framed, whereover parties were required to lead their evidence in support of their respective stances. Learned trial Court after recording of evidence on the eight issues framed by it, on 27.9.1995 decreed the suit filed by the petitioners and dismissed the suit of Respondent No, 1.
5. Respondent No, 1 feeling aggrieved of dismissal of his suit and decree in favour of the petitioners, filed two separate appeals before the learned Additional District Judge, Kalurkot, who vide his judgment and decree dated 10.3.1996 accepted Civil Appeal No, 122/1995, reversed findings of the learned trial. Court on Issue No, 4 and dismissed the suit of the petitioners. Learned Additional District Judge simultaneously through a consolidated judgment, dismissed Civil Appeal No, 321/1995 filed by Respondent No, 1 affirming judgment and decree dismissing his suit by the learned trial Court, Respondent No, 1 has not further come up before this Court to challenge the judgment and decree of the Appellate Court, passed in Civil Appeal No, 321/1995 and thus to his extent concurrent judgments of the two Courts below, refusing to accept his claim on the basis of gift by an agreement dated 1.7.1974 stands concluded and only issue with regard to gift in favour of the petitioners remains alive as they have filed the revision petition in hand, assailing the above referred judgment and decree.
6. Learned counsel for the petitioners submits that oral gift in favour of the petitioners was proved on the file and thus the Appellate Court has incorrectly dismissed their suit, by reversing a well- reasoned judgment. He further submits that other daughters of the donor except Mst. Amir Khatoon had given concurrence to the gift and this admission goes a long way to support stance of the petitioners. It has also been contended by the learned counsel for the petitioners that earlier petitioners' suit for permanent injunction was decreed against Respondent No, 1 and that decree till today remains intact. He then referred to the decision by the Assistant Commissioner dated 12.4.1993, whereby "Supurdari" of the crops was decided in favour of Mst. Ghulam Zainab, one of the petitioners. He further elaborating his submissions stated that tenant of the land in question has also supported the claim of the petitioners of gift, by making a statement in Court, who though was not examined as a witness, but made a statement in presence of the respondents that he is tenant under the petitioners. This tenant (Sher Muhammad) is also claimed to have sworn an affidavit with regard to his status of tenant under the petitioners. Learned counsel further argued that suit of the petitioners was decreed by the learned trial Court, whereagainst, none-else filed appeal before the Appellate Court except Respondent No, 1 and thus all the other sisters of the petitioners accepted the decision and indirectly have given consent to the gift in favour of the petitioners. He adds that the petitioners' witnesses who deposed regarding the factum of gift in their favour, the respondent did not cross-examine them on that point and under law their statements to that extent, will be deemed to have been admitted. In this behalf he referred to the case of Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi (1991 SCM R 2300). In the last, he submits non-attestation of mutation in favour of the petitioners carries no weight, as mutation is not a document of title and is sanctioned only for fiscal purposes. In this behalf he referred to the judgment given by the Honourable Supreme Court of Pakistan in the case of Muhammad Ali and 25 others vs. Hassan Muhammad and 6 others (PLD 1994 S.C. 245).
7. I have considered the arguments of the learned counsel for the petitioners and have examined the record appended with this petition, with his assistance. Precise dispute in the case in hand is whether Mst. Sahib Khatoon wife of Jam Ali, mother of the petitioners, did make gift of her land in favour of the petitioners through an oral transaction. Petitioners, who claim title on the basis of an oral gift, with was not reduced to any kind of writing, was not reported to any of the revenue officials and no mutation on A the basis thereof was sanctioned, were required to prove it, by cogent and solid evidence because it is now settled that in case of gift even through a registered gift-deed, beneficiary is to prove independent of the deed, transaction of gift, as a fact and if any precedent is needed in this behalf, we again have a support from the case of Zafar Iqbal etc. vs. Yaqoob etc. (NLR 1995 CLJ 147). Comparing the case of the petitioners in whose favour there is no document of any kind to support the gift, with the persons getting title out of registered gift-deeds, petitioners stand on a' much weaker wicket and keeping in view this fact, their evidence will be scanned, inspite of my handicap to do so in revisional jurisdiction because learned counsel for the petitioners submitted, that the alleged transaction, in favour of the petitioners, is proved on the file.
Petitioners produced PW. 3 Zia Ullah Khan son of Aslam Khan and PW. 4 Mubarak Khan son of Muhammad Khan. PW. 3 deposed that Mst. Sahib Khatoon was an owner of 120 kanals of land, which was in her possession, and she lived with her daughters Mst. Ghulam Zainab and Mst. Alam Khatoon. He further deposed that Mst. Sahib Khatoon in lieu of services rendered by the petitioners to the donor gifted her land in their favour and directed one Ghulam Rasul, her attorney, to convey to the tenant that in future, share of produce should be given to the petitioners. A similar statement was made by PW.
4. Both these witnesses have not given time, date or place of making of gift by the donor and have not explained the occasion on which such declaration was made by the donor and how these witnesses happened to be present at that time. PW. 3 has named Mubarak Khan son of Muhammad Khan and Ghulam Rasul son of Raza Muhammad. besides the parties to the suit, who were present at the time of making of the gift by Mst. Sahib Khatoon, whereas PW. 4 has named Mubarak Khan, Ghulam Rasul and another Raza Muhammad to be present at the that time, but out of these named persons only Mubarak Khan and Ghulam Rasul were produced to prove the alleged transaction and rest of them were withheld. PW. 5 Ghulam Rasul has simply deposed that since Mst. Sahib Khatoon was living with the petitioners, she made gift in January, 1989 in favour of the petitioners and died after four months of period. From this narration of evidence produced by the petitioners, it is clear that they failed to prove time, date or place of gift in their favour. Though learned counsel for the petitioners has attempted to show that from cross-examination of these witnesses, one can determine the time and day of the gift, but in absence of any such assertion in the plaint, some fake assertions in cross-examination, which also do not specify the time and day of gift, the transaction of gift is not proved.
8. It is in the evidence that other sisters of the petitioners were living in some other village and were not on good relations with the donor. Any decision in injunction suit or "Supurdari" matter, as relied by the learned counsel for the petitioners, to which they were not party, does not, ipso facto, prove the transaction of gift. Similarly concessional written statement by two of the sisters, in presence of contesting written statement by one sister of the petitioners would' not make a non-existant gift, lawful. File in hand is absolutely thirsty of proof regarding the transaction of gift having in fact been made by the donor. There is no explanation, worth the name, as to why the transaction of gift was not brought into black and white, especially when the petitioners were aware that there are other heirs, as well, of the donor who will claim inheritance in her estate in case of her death. Petitioners have not at all bothered to report gift in their favour, at the time of its making or thereafter or even before filing their suit in 1991, to the revenue functionaries who are bound to incorporate such transaction under the provisions of Land Revenue Act, 1967. It is not shown why the donor lady was not carried before the revenue officer for attestation of mutation who, according to the witnesses of the petitioners themselves, is stated to have died just after four months of the alleged gift.
9. Adverting to the argument of the learned counsel for the petitioners that PWs. 3 to 5 were not cross-examined on the facts deposed by them in their examination-in-chief, touching gift in favour of the petitioners. I find that though this submission is not correct, yet any lapse in cross- examination would not make the petitioners owner of the land, without proof of any lawful transfer in their favour. Likewise his submission that since mutation is not a document of title and is entered only for fiscal purposes, has no much strength in it because had the petitioners got the mutation sanctioned or reported the matter to the revenue authorities, it would have been a strong circumstance in support of the transaction claimed by them.
10.No doubt that except Respondent No, 1, no one else challenged before the Appellate Court decree in favour of the petitioners but the Courts cannot act as silent spectators and are not meant to see acts which never happened. I am mindful of the fact that the case in hand relates to a far flung area of which people do not have much means to contest the protracted litigation, thus non-filing of appeal by any of the heirs .before the Appellate Court has no much reflexes because decree in their favour was rightly annulled by the Appellate Court on appeal of Respondent No, 1 and I exercising my revisional and supervisory jurisdiction, cannot contribute to an illegal act, as committed by the learned trial Court.
11. From what has been discussed above, I am of the affirmed opinion that gift in favour of the petitioners was not proved and thus judgment of the Appellate Court is strictly in consonance with the evidence on the file. The Appellate Court has not transgresed its jurisdiction as it has given lawful reasons for arriving at a just and lawful decision without committing any illegality or irregularity. This revision petition, having no substance in it, is accordingly dismissed, in limine, with no order as to costs.