KHALIL-UR-REHMAN RAMDAY, J. - This petition is directed against a judgment dated 10.3.2000 of the Lahore High Court passed in Civil Revision No. 771-D of 1995 which impugned judgment had affirmed the original and the appellate judgment and decrees dated 5.5.1992 and 12.10.1995 passed respectively by a learned Civil Judge and a learned Addl. Distt. Judge at Vehari.
2. The dispute relates to 128 kanals and 12 marlas of land situated in MAUZA TiBBA SULTAN PURA of Tehsil Melsi of Distt. Vehari which was owned by one Siddique Khan. This siddique Khan died on 24.3.1991. He had only one child i.e. a daughter, namely, Mst. Saeeda Begum who had died about a year prior to the death of her father Siddique Khan. This Mst. Saeeda Begum had also left behind only one child, namely, Khalil Ahmad Khan who is the petitioner before us. It was the case of this Khalil Ahmad Khan that his above-mentioned maternal grand father, namely, Siddique Khan had gifted his above-mentioned land to him through mutation No. 1445 dated 30.11.1988 which gift had thus allegedly been made about 2 years and 4 months prior to the death of Siddique Khan donor.
3. Shah Muhammad Khan was the father of the said Siddique Ahmad Khan donor. This Shah Muhammad Khan had a brother by the name of Muhammad Abbas Khan Who had to sons, namely, Basharat Khan and Yasin Khan. Abdul Jabbar, Abdus Sattar and Dildar Khan respondents are the sons of the said Basharat Khan while the fourth respondent before us, namely, Jewan Khan is the son of the said Muhammad Yasin Khan.
4. Claiming thus, to be the collaterals of the late Siddique Khan, the said Abdul Jabbar, Abdus Sattar, Dildar and Jewan Khan filed a suit on 7.5.1991 in the Court of the learned Senior Civil Judge Vehari praying for a decree for a declaration that they were the owners in possession of V2 of the estate left behind by the said Siddique Khan and that the above-mentioned mutation No. 1445 dated 30.11.1988 evidencing gift of the entire land of the said Siddique Khan in favour of Khalil Ahmad Khan was illegal and a fraudulent transaction which was ineffective against the rights of the said collaterals in the estate of Siddique Khan.
5. The Province of Punjab, being the first defendant of the said suit pleaded through its written statement that having personally appeared before the Revenue Officer, the said Siddique Khan had transferred the land in question in favour of Khalil Ahmad Khan by way of gift and had even put his thumb impression on the mutation in question. Khalil Ahmad Khan defendant pleaded that since Siddique Ahmad Khan had no male issue and since his mother Mst, Saeeda Begum was his only child, therefore, Siddique Khan used to live with the said defendant's mother and on the death of his said mother the said defendant used to look after his said maternal grand father and that it was during his life time and more than to years before his death that Siddique Khan gifted his entire land i.e. 128 kanals.And 1 2 marlas to him and that all the necessary ingredients of gift were duly completed and satisfied. He had added that the plaintiffs knew of this transaction and they never questioned the same during the life time of Siddique Khan and that it was after his death that they filed the suit in question. He had. Also pleaded that the gift in question was duly proved before the Revenue Officer i.e. The. Tehsildar who then attested the mutation in question. He had further declared that he had duly accepted the gift made by his grand father to him, which was followed by transfer of possession of the suit land in the presence of the respectables of the area including the LAMBERDAR and the councillor of the village. He had specifically denied the allegation that Siddique Ahmad Khan was suffering from MARAZ-UL- MAUT during the days that the gift in question was made by him or that the said donor was mentally or physically incapable of doing the needful.
6. At the Trial Abdul Jabbar plaintiff appeared as PW. 1 and deposed that Siddique Khan used to live with him and he was the one who used to look after him; that about 5/6 years before his death siddique Khan had met an accident as a result of which his back bone had got fractured and he had become bed-ridden; that Siddique Khan, because of his old age, had become incapable of understanding his affairs; that even during the said Siddique's life time it was the tenants who used to cultivate his land and these tenants used to give a share of the produce to the plaintiffs; that they were thus in possession of the said land and that Siddique Khan never made any gift of this land to Khalil Ahmad Khan. During the course of cross-examination the said Abdul Jabbar plaintiff admitted that Siddique Khan used to live in his on house but he insisted that the plaintiffs were the ones who used to look after him. The only other witness produced by the plaintiffs was one Muhammad Iqbal who was a MAMUN ZAD of Abdul Jabbar plaintiff. He went on to add that Siddique Khan had lost his mental balance and that it was not his spine which had got fractured as a result of the accident but it was his hip bone which had got broken. He also maintained that it was Abdul Jabbar and his wife who used to look, after Siddique Khan and admitted that Abdul Jabbar plaintiff had never taken Siddique Khan to any doctor. He also declared that Siddique Khan had never appeared before any Revenue Officer in support of any alleged gift made by him nor had he gifted his land to Khalil Ahmad Khan.
7. The said Khalil Ahmad Khan defendant appeared as DW. 1 and his case was that his maternal grand father had sound mental faculties and that it was in the presence of Haji Nasir LAMBERDAR Kabool Ahmad Councillor, Khuda Bukhsh goldsmith and Nazir that his grand-father had made a gift of-the said land to him and had even delivered possession thereof to him. He denied the allegation that the back bone of his grand father had ever got broken though he admitted that Siddique. Khan had injured his knee in a cycle accident. He had further deposed that though Siddique Khan could not move around freely but claimed that he could walk around in the house.
He denied the suggestion that he had produced some other person at the time of the ' attestation of the mutation in question and that Siddique Khan had never appeared before the Tehsildar for the purpose. Ghulam Nasir appeared as D.W.
2. He was the LAMBERDAR of the village.In question, namely, T/BA SULTAN PURA and knew the parties. He declared that it was in his presence and in the presence of others including Kabool Khan and Khuda Bukhsh Goldsmith that Siddique Khan had gifted his land to Khalil Ahmad Khan defendant. He further declared that Siddique Khan always lived with Khalil defendant and it was the said Khalil who used to look after him. He had further deposed that he had appeared before the Revenue Officer at the time of the attestation of the mutation in question; that he had identified Siddique Khan at the said occasion and had verified the factum of gift in question. He denied the suggestion that some other person had been produced before the Revenue Officer in place of Siddique Khan at the time of attestation of the mutation in question. Similar was the stance taken by Kabool Ahmad D.W. 3 who was the councillor of the area at the relevant time. Khuda Bukhsh D.W. 4 also appeared as defence witness. He deposed that he as a resident of TIBA SULTAN PURA; that he was the one who had taken Khalil Ahmad and Siddique Khan donor to the Revenue Officer in his motor car and had then also appeared before the Tehsildar alongwith other witnesses at the time of attestation of the mutation of gift.8. It may be mentioned here that Kabool Khan D.W. 3 had admitted that he had not gone to the PATWARMor securing entry of the mutation in question nor had siddique Khan donor gone to the PATWARI for the said purpose.
9. Issue No. 2 framed at the trial was to find out whether the '.Hiba' mutation No. 1445 dated 30.11.1988 was void, illegal, against law and facts, without consideration, based on fraud andmisrepresentation and as such inoperative upon the rights of the plaintiffs. The burden of proving this issue was on the plaintiffs. Another relent issue was Issue No. 4, which was to the effect whether the 'Hiba' in question was made during ' Maruzul-Mout' of Siddique Khan donor. The onus of proving this issue was also on the plaintiffs. The third relevant issue was Issue No. 5 to determine whether a valid 'Hiba' was made by Siddique Ahmad Khan in favour of Khalil Ahmad defendant and the burden of proving this issue was on the said defendant. The learned Trial Judge decided issue No. 2 in favour of the plaintiffs. He, however, found under issue No. 4 that Siddique donor was not suffering from ' Marzul-Mout' at the time when he had made the gift in question. He resolved issue No. 5 against the defendant and consequently decreed the suit. As has been mentioned-above, this judgment and decree was then maintained by the learned appellate Judge and finally affirmed by the Hon'ble Revisional Court. .10. We have heard the learned counsel for the petitioner as also the Learned counsel for the respondents:caveators. We have also gone through the available record in the light of the submissions'made by the learned counsel for the parties. .
11. As has been noticed above, it was the claim of the plaintiffs that Siddique Khan donor had broken his backbone in an accident in the year ?983; that he had become bed-ridden and that .
Because of having remained bed-ridden and also because of old age, he had lost his mental faculties. If Siddique donor had met any such accident which had resulted in the fracture of his spine then such a serious inquiry would have normally resulted in his admission in some hospital and some treatment by some doctor. No such evidence was ever led by the plaintiffs. No evidence was led also to prove that the said donor had become of unsound or had become incapable of understanding his affairs, It was, therefore, rightly held by the learned Trial Judge under Issue No. 4 that the said donor was not suffering from any mortal illness at the time that the gift in question was made. Despite all this, the learned Trial Judge in para 26 of his judgment declared that:- "Undeniably, Siddique Ahmad Khan was not capable of understanding his affairs and was. Under the influence of his maternal grand son, the defendant No. 2, who had managed to get the impugned mutation sanctioned................................... It is further admitted fact that Siddique Ahmad Khan's mental Capacity was effected on account of old age, mental and physical infirmity."
We have not been able to find any evidence which could have led the learned Trial Judge to the above- quoted inferences. We have also not been able to lay our hands on any admission by the defence witnesses on the basis of which it could be declared by the learned Trial Judge that Siddique Ahmad Khan donor was 'undeniably' incapable of understanding his affairs or that 'admittedly' his mental capacity had suffered on account of his age and mental and physical infirmity. Such like findings of the learned Trial Judge were thus based on gross mis-reading of record and, in fact, emanatedfrom some thing which did not exist on record.
12. The crucial question in this case is whether the gift in question had or had not been made by Siddique Khan in favour of his maternal grant-son, namely, Khalil defendant-petitioner.
13. Khalil defendant had appeared at the trial as D:W.
1. He had inter alia deposed that his mother was the only child of Siddique Khan; that he was the only child of his mother and that his mother had died prior to the death of his said maternal grand father. He had added that it was while his said grand father was possessed of his physical and mental faculties that he had gifted the said land to him on 30.11.1988 in the presence of Haji Nasir Lamberdar, Kabool Ahmad Councillor, Khuda Bukhsh goldsmith and Nazir. He had further declared that the said donor had even delivered possession of the land to him. Ghulam Nasir Lamberdar corroborated the defendant and deposed that it was in his presence and in the presence of the other above named persons that Siddique Khan had made a gift of the suit land to Khalil defendant and had even delivered possession thereof to the said done. He had also deposed that he had appeared before the Tehsildar at the time of the attestation of the mutation; had identified Siddique donor and had also verified the factum of gift. Kabool Ahmad Councillor also made a statement to the same effect and deposed that he had also appeared before the Tehsildar at the time of the attestation of the mutation of gift when Siddique Khan* donor had certified before the said Revenue Officer that he had gifted the land in question to Khalil defendant and had even delivered possession thereof to the said done.
Khuda Bukhsh goldsmith was the fourth witness who had appeared at the trial in support of Khalil defendant and had corroborated the said defendant about the factum of gift and about having appeared before the Tehsildar at the time of the attestation of the mutation in question.
14. As has been noticed above, the plaintiffs had not produced any un-impeachable evidence to establish that Siddique donor was not in a position to go to the office of the Tehsildar for the purpose of attestation of the mutation in question or that the said donor was mentally incapable of understanding his affairs or of making a statement before the Tehsildar about the factum of gift, It had found by the learned Trial Court and not falsified by the appellate and the revisional Courts that the said donor was not suffering from "MARAZ UL MAUT" at the time when the gift had been allegedly made or when the mutation has been allegedly attested.
1 5. Khalil defendant was the only child of Siddique donor while the plaintiffs were the grand sons of a brother of the father of Siddique donor and were thus more than distant kinders of the said donor.16. The fact that Siddique donor was not suffering from 'Marzul-Mout' at the relevant time; the fact that he was not incapable of being physically present before the Tehsildar for the purposes of attestation of the mutation m question; the fact that no reliable evidence was available to hold that the donor was not .Capable of understanding his affairs; the fact that the alleged donee was closely related to the donor who had no other near ' relatives or heirs to inherit the donor's property and the fact that the factum of gift and the attestation of the mutation had been verified and confirmed by at least three independent witnesses out of whom one was a councillor of the area and the other a LAMBERDAR of the village, were more than sufficient factors to establish the fact in issue. These relevant and crucial pieces of evidence had been ignore by the1 learned Courts while reaching the decision that they did.
17. In confirming the to judgments of the learned subordinate Courts, as would appear from para 4 of its judgment, was influenced, by the fact that it had been admitted by Kabool Ahmad councillor that he .Anu Siddique donor had not gone to the PATWARI for the purpose of seeking entry of the mutation of gift and this admission accordingly the Hon'ble High Court had taken away the "very bottom" of Khalil defendant's assertion that a valid gift had been made in his favour and that the mutation in question had been lawfully entered and attested. We say with respect that entering a mutation or reporting the factum of acquisition of any right in an estate to the PATWARI was a mere ministerial act which did not confer or extinguish any right in any property and thus nothing really hinged on the same. As would be evident from Section 42 of the Land Revenue Act, ho witnesses or respectables were required either to accompany the person reporting acquisition of such an interest to the PATWARI nor to witness the entering of a mutation in the said connection. Therefore, even if it be presumed that the witnesses in question or even the donor himself had not gone to the PATWARI for the said purpose even then the same is of no consequence viz-a-viz the validity of a consequently attested mutation. What is relevant is the factum of attestation of the mutation which exercise had to be done by the Revenue Officer under Sub- Section (7) of the said Section 42 of the Land Revenue Act in the presence of the person who right had been acquired after such a person had been identified by at least to respectable persons preferably from amongst the LAMBERDAR or member of the Union Council etc. Needless to reiterate that a LAMBERDAR and a member of the Union Council were present when the mutation in question had been attested and, therefore, any discrepancy amongst the defence witnesses regarding any witness having accompanied the defendant to the PATWARI for reporting this accompanied of an interest in the land in question was of no real consequence.
18. Having thus examined the entire record in some detail in the light of the submissions made by the learned counsel for the parties, we find that the impugned judgments and decrees, although consistent with each other, were not entitled to the respect which attaches to such concurrent findings because the said judgments were based on mis-reading and 'nun-reading of the material evidence which was available on record and which had escaped the notice of the learned subordinate Courts and the attention of the Hon'ble Revisional Court. Our detailed examination of the available evidence leads us to conclude that Khalil defendant had successfully proved the making of a valid gift of the suit land by Siddique donor in his favour and further that the plaintiffs had failed to prove that the "Hiba" mutation in question bearing No. 1445 dated 30.11.1988 was void, illegal, against law and facts, without consideration, based on fraud and misrepresentation and consequently inoperative upon the rights of the plaintiffs and we hold accordingly. The findings of all the Courts on Issues Nos. 2 and 5 are, therefore, reversed. Since we have found the second Issue not proved, therefore, Issue No. 3 is answered by declaring that the suit land was not available for inheritance by the plaintiffs.
19. Consequently, this petition is converted into appeal and the same is allowed. All the three impugned judgments and decrees are set aside and the findings of the learned Courts on Issues Nos. 2, 3 and 5 having been reversed, the suit filed by the present respondents is dismissed with costs throughout.