' Mst. Gul Faroosha petitioner/plaintiff filed suit against the respondents/defendants in the Court of learned Senior Civil Judge, Charsadda seeking declaration to the effect that she was owner of land measuring 36 Kanals situated in Mauza Katozai, more particularly described in the heading of the plaint. Perpetual injunction restraining the respondents/defendants to claim to be owners of the suit property and to interfere into the same was also prayed for as consequential relief. In the alternative a decree for possession was also sought. The suit was resisted by the defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree, dated 7-4-2000. Feeling aggrieved with the said judgment and decree the petitioner filed appeal in the Court of learned District Judge, Charsadda, which was allowed vide judgment and decree, dated 23-9-2000.
Muhammad Rahim respondent filed civil revision petition before this Court, which was allowed vide judgment and decree, dated 16-1-2003 and the case was remanded back to the learned Appellate Court for decision afresh in accordance with law. The learned District Judge after hearing the learned counsel for the parties dismissed the appeal vide judgment and decree dated 19-11-2003.
Being not contented with the judgments and decrees of the Courts below the petitioners have filed the revision petition in hand.
2. Mr. Mian Muhammad Younis Shah, Advocate the learned counsel for the petitioners argued that the property in dispute belonged to Abdul Munaf who has gifted the same to his son Sardar vide gift-deed, dated 20-2-1953 Exh.P.W.2/3 but on the same day transferred the same in favour of Mst.
Gul Faroosha in lieu of her dower vide dower deed Exh.P.W.2/1, therefore, the petitioner became owners of the property in dispute.
3. It was also argued that the Courts below have failed to appreciate the law applicable to the case in hand. Both documents i.e, gift and dower deed were more than 30 years old and the law presumed that to be genuine which presumption was ignored by the Courts below.
4. It was also argued that the petitioners/plaintiffs had proved the gift as well as dower deed through convincing documentary and oral evidence, which was misread by the Courts below.
5. It was also argued that the Courts below have given undue importance to the Revenue Record without realizing the fact that mutation proceedings were not judicial proceedings and mutation does not confer any title. Reliance in this regard was placed on AIR 1926 PC 100.
6. It was also argued that the Courts below failed to appreciate that the gift deed does not require consideration under section 17 of the Registration Act. Reliance in this regard was placed on 1987 SCM R 1403, PLJ 1987 SC 149, 1989 CLC 1317 and PLD 1984 Pesh.
260.
7. It was further argued that it was the duty of the Court to apply proper law which in the case in hand was not relied upon. Reliance in this regard was placed on AIR 1942 All. 82 and AIR 1963 SC 1917.
8. On the other hand Mr. Ziaur Rehman, Advocate the learned counsel for the respondents argued that Abdul Munaf died in the year 1958. His inheritance Mutation No,3223 was attested in favour of his. L.Rs, including Sardar on 9-10-1958 Exh.P.W.1/16. After the alleged execution of gift and dower deed Abdul Munaf remained alive for 5 years but property was never transferred in the name of Sardar in the life time of Abdul Munaf. Sardar died in the year 1971 and his inheritance Mutation No,3977 was attested on 18-1-1971 Exh.P.W.1/D-1. Sardar in his life time did not raise any objection over inheritance mutation of his father and so was the case of petitioner because she did not raise any objection on the inheritance of Sardar.
9. It was also argued that the suit in hand was filed as counterblast because Muhammad Rahim one of the L.Rs, of Abdul Munaf had filed suit for rendition of accounts in the Court of Revenue Officer Shabqadar and as a counterblast the petitioner filed the suit in hand. This fact was admitted by Tiladar P.W.3 in his statement.
10. It was also argued that if the petitioner was to place reliance on 30 years old document, it was their duty to prove the same which she failed to prove. Reliance in this regard was placed on 1999 SCJ 433 and 1997 M LD 754.
11. It was also argued that there was concurrent findings of Courts of competent jurisdiction, which needed no interference in exercise of revisional jurisdiction by this Court.
12. After hearing the learned counsel for the parties at length I admit the revision petition to full hearing and since the learned counsel for the parties addressed full arguments, I therefore, proceed to decide the same on merits.
13. In order to prove her case, the petitioner/plaintiff examined Tauheed Ali, Patwari Halqa as P.W.1 who placed on record Fard Jamabandi for the year 1926-27 to 1992-93 Exh.P.W.1/2 to Exh.P.W.1/15, inheritance Mutation No,3223 attested on 9-12-1958 Exh.P.W.1/16. Haji Muhammad Yousaf appeared as P.W. 2 and exhibited dower deed dated 20-2-1953 Exh.P.W.2/1. Tiladar attorney of plaintiff appeared as P.W.3. He placed on record his power of attorney Exh.P.W.3/1, gift deed Exh.P.W.3/2.
14. In rebuttal Muhammad Rahim appeared as D.W.1 and placed on record copy of the suit filed by him for rendition of accounts in the Court of Revenue Officer Shabqadar, copy of the same was placed on record as Exh.D. W . 1/1.
15. The question that requires consideration in this case is as to whether Abdul Munaf had gifted land measuring 36 Kanals in favour of his son Sardar vide gift deed dated 20-2-1953 Exh.P.W.3/2 and whether Sardar had further transferred the said property in the name of his wife, Mst.
Gulfaroosha in lieu of her dower vide dower deed dated 20-2-1953 Exh.P.W.2/1 or not. Burden to prove the abovementioned deeds was on the plaintiffs but the evidence available on record indicates that she failed to prove the same through convincing and reliable evidence. There is no denial of the fact that Abdul Munaf was owner of land measuring 36 Kanals alongwith other property. Abdul Munaf had four sons namely Sardar, Gul Rahim, Muhammad Rahim and Said Rahim. He also had a wife. It is the claim/case of the petitioner/plaintiff that Abdul Munaf in his life time gifted land measuring 36 Kanals in favour of his son Sardar vide gift deed, dated 20-2-1953 Exh.P.W.2/3, who in turn on the same day transferred the said land in favour of his wife Mst.
Gulfaroosha in lieu of her dower vide Exh.P.W.2/1. In order to prove the abovementioned documents plaintiff only examined Haji Muhammad Yousaf P.W.2. This witness was son of deed writer namely Latif. He (P.W.2) stated that deed Exh.P.W.2/1 dated 20-2-1953 was scribed in the hands of his father.
The said document was placed on record under objection from the other side. This witness neither produced the deed writer's Register, wherein the said deed was entered nor did he state a single word with regard to gift deed Exh.P.W.3/2. Though the said deed was also stated to have been scribed by Latif (late) deed-writer.
16. No doubt both the deeds i.e, gift deed Exh.P.W.3/2 and dower deed Exh.P.W.2/1 were more than 30 years old documents but under Article 100 of Qanun-e-Shahadat Order,1984 (old section 90 of Evidence Act) presumption about their genuineness is discretionary with the Court because Article 100 of Qanun-e-Shahadat Order, 1984 lays down that a Court "may presume" and not that 'shall presume", but it is also by now established law that the discretion under Article 100 ibid should be exercised judiciary. The Court could refuse to raise presumption where it has reasons to believe that the documents which were claimed to be 30 years old were fabricated and suspicious. A similar question came up for hearing before the august Supreme Court of Pakistan in Lutufur Rehman and others v. Zahoor and others 1999 SCJ 433 in which it was held:-- ' "Syed Safdar Hussain, learned A.O.R. In support of this petition, contended that under Article 100 of the Qanun-eShahadat Order, 1984, the Court may presume that the signatures and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested, therefore, the learned Single Judge has gone wrong in holding that the execution of the impugned registered deed is not proved. No doubt documents thirty years old, produced from proper custody and otherwise free from suspicion proved themselves and no evidence of the handwriting, signature, sealing or delivery need, in general, be given. The presumption mentioned in Article 100 is, however, permissive and not imperative. Even if a document is 30 years oid and is produced from proper custody, the Court is not bound to presume its genuineness. The Article lays down that the Court 'may presume' and not that 'shall presume' a document 30 years old and produced from proper custody to be genuine. It is, therefore, discretionary for the Court to raise or to refuse to raise presumption where it has reasons to believe the document to be a fabrication or mere grave suspicion attaches to it. See Shafiqunnisa v. Shabar Ali Khan 30 IA 217. It is settled law that the effect of presumption may be weakened by circumstances which tend to raise doubts as to the authenticity of a document."
17. In the case in hand the deed Exh.P.W.3/2 and Exh.P.W.2/1 were not presumed to be genuine by the Courts below and this Court is also of the view that the same were fabricated and suspicious because; ' Firstly, the gift and dower deeds dated 20-2-1953 Exh.P.W.3/2 and Exh.PW..2/1 had not seen the light of the day right from the date of their purported execution on 20-2-1953 till filing of the suit on 7-1- 1993.
' Secondly, the learned trial Court had framed Issue No,6 "Whether the deeds mentioned in the plaint are forged and fictitious, based on fraud, unregistered and inadmissible in evidence, therefore, ineffective upon the rights of the defendants?" With the framing of the above quoted issue, the petitioner/plaintiff was aware of the fact that the learned trial Court had not presumed the two deeds Exh.P.W.3/2 and P.W.2/1 dated 20-2-1953 being 30 years old were genuine, hence need no proof, therefore, the burden to prove the deeds lay upon the petitioner. If the marginal witnesses of the deeds and the scribe were dead, at least this fact should have been brought to the notice of the Court. An attempt was made to prove the deeds by examining Haji Muhammad Yousaf P.W.2, son of deed writer namely Latif. He only stated that Exh.P.w.2/1 (dower deed) was in the hand of his father, but he did not state a single word about the other deed Exh.P.W.2/3. He also failed to produce the deed writer's Register, therefore, the two deeds were not proved in accordance with law.
' Thirdly, Abdul Munaf remained alive till 1958. His inheritance Mutation No,3223 was attested on 9- 12-1958 Exh.P.W.1/16. Sardar and Mst. Gulfaroosha were alive. Sardar was given his due share in the legacy of Abdul Munaf. If land measuring 36 Kanals had been gifted in his favour and he had further transferred the same to Mst. Gulfaroosha in lieu of her dower then why did they not raise objection to the inheritance mutation Exh.PW..1/16 is yet another question which creates grave suspicion about the genuineness of the gift deed Exh.P.W.3/2.
' Fourthly, Sardar died in the year 1971. His inheritance Mutation No,3977 was attested on 18-1-1971.
Exh.P.W.1/D- 1 . Mst. Gulfaroosha his widow did not raise any objection over the inheritance mutation of Sardar attested in the year 1971. If the land in dispute had been given to her in lieu of her dower, she should have challenged the inheritance mutation in the Revenue hierarchy or should have filed civil suit immediately thereafter but she kept mum till 7-1-1993 i.e, filing of the suit in hand.
' Fifthly, the alleged transfer in favour of Sardar as well as Mst. Gulfaroosha by virtue of impugned gift deeds did not fmd their way into the Revenue Record through attestation of mutation for more than 40 years i.e, from the date of alleged execution of the deeds till filing of the suit. This also shows that the gift and dower deeds were fabricated to deprive the other L.Rs, of Abdul Munaf of their share out of land measuring 36 Kanals.
18. The argument of the learned counsel for the petitioner that the gift- deed did not require registration had a force in it. It is by now settled that if the three ingredients i.e, declaration of gift, acceptance of gift and transfer of possession were proved, the gift was complete. Even oral gift of immovable property made by Muslim in favour of Muslim son was proper if the above mentioned three requirements were complete. It was held in Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCM R 1403 and Mst. Gul Bibi and another v. Mst. Sajida Bibi 2000 CLC 399.
I have not been able to find out any misreading or non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed with no order as to costs.
Revision .