Mst. Razia Bibi etc. Respondents, had filed a suit for declaration against the petitioners to the effect that they were owners of suit-land according to ' their shares being legal heirs of Bahadar Shah and Mutation No.1875, dated 14-8-1971, was based on fraud, illegal and liable to be set aside. Also that, Mutation No.5090, dated 29-1-1995, sanctioned in favour of Mst. Mubashira Tanvir, petitioner, at the instance of Mubarak Shah, petitioner too was void. The respondents-plaintiffs stated that their father, Bahadur Shah, son of Janday Shah, was owner of agricultural land in villages Haveli Bahadar Shah, Khaki Makhi and Kot Bahadar Shah, Tehsil Shorkot and he had handed over possession of the same to the defendants (Fazal Hussain Shah and Mubarak Shah) and they had been paying them share of produce till Kharif 1994 crop. They maintained that they demanded share of produce from defendants regarding Rabi1995 crop but they refused to give them share of produce and denied their ownership. On checking of Revenue Record, they came to know that aforesaid defendants through fraud and in. Collusion with Revenue staff, got sanctioned gift Mutation No. 1875 on 14-8-1971 in 'their favour. The respondents alleged that their father, Bahadar Shah had never transferred suit-land in favour of defendants during his life and that defendants had been paying them share of produce tilt Kharif 1994 crop. They also alleged that they were Parda Nasheen ladies and Defendants Nos.1 and 2 (Fazal Hussain Shah and Mubarak Shah) had played fraud to deprive them of the suit-land and kept the mutation secret as they had paying them share of produce, even after the death of their father. They stated that possession had not been delivered on the basis of gift in question. The respondents asserted that defendant No.2 had transferred suit-land in favour of respondent No.3 (Mubashira Tanvir) on 29-1-1995 vide Mutation No.5090 only to create complications, therefore, the same was also liable to be set aside. They asked the defendants for cancellation of the aforesaid mutations and to transfer suit-land in their favour according to their shares but they refused, therefore, they were constrained to file suit. The defendants mentioned in their written statement, that Bahadar Shah had transferred suit-land in their favour by way of gift with his free consent and they were in possession of the same according to their shares. Learned trial Court framed issues; recorded evidence and dismissed the suit, brought by the respondents-plaintiffs vide judgment, dated 4-7-2001. The respondents-plaintiffs filed appeal gainst the said judgment and decree which was accepted vide judgment, dated 6-2- 2002, passed by learned A Additional District Judge, Shorkot. Hence this revision petition.
2. 1 have heard the arguments of learned counsel for the, parties and perused the record.
3. As mentioned above, suit-land was owned by Bahadar Shah (predecessor-ininterest of the parties). The case of petitioners is that Bahadar Shah had transferred suit-land in favour of Mubarak Shah, petitioners, and his brother, Fa4a1 Hussain Shah (respondent No. 6). However, case of respondents-plaintiffs is that he (Bahadar Shah) had never transferred suit-land in favour of Fazal Hussain Shah and Mubarak Shah and that gift Mutation No.1895, dated 14-8-1971 is based on fraud and liable to be set aside. Also that Bahadar Shah had never transferred possession to the defendants. Mst. Razia Bibi, plaintiff, appeared as P.W.1 and stated that her father (Bahadar Shahj had never transferred suit-land in favour of defendants Nos. 1 and 2 (Fazal Hussain Shah and Mubarak Shah) by way of gift and that Bahadar Shah never made statement before Patwari and he did not get sanctioned gift mutation. He died 15/16 years back. She further stated that she has four sisters and they are `Parda Nasheen' and illiterate ladies. Her father had been cultivating suit- land during his life time and thereafter her brothers cultivated the same. The plaintiff stated that defendants had been paying share of produce to her and her sisters till 1994 but thereafter, refused. She checked the record from Patwari, whereupon, she came to know about fraud. The plaintiff stated that land situated in Kot Bahadar Shah and village Khaki was transferred correctly and mutations of inheritance were attested at the instance of their brothers. She deposed that they had been receiving share of produce, therefore, they were of the view that mutation of inheritapce had been correctly sanctioned. She stated that disputed mutation which is regarding land in village Haveli Bahadar Shah, is forged and fictitious. Her statement is convincing and confidence inspiring. Admittedly, She is `Parada Nasheen' lady. She also produced documents (Exh.P1 to P3) in support of her version. On the other hand, defendants examined Masood Aslam as who stated.
That on 14-8-1971, while he was posted as Tehsildar Shorkot, he had sanctioned. Mutation No.1875 D.W.2 Hafizullah Shah, is general attorney of petitioner's/defendants Nos.2 and 3. It is 'nteresting to note that defendants (Fazal Hussain Shah and Mubarak Shah did not appear before trial Court in support of their version. It shows that their claim is baseless. D.W.2, Hafeezullah Shah, is general attorney of petitioners but he did not know about attestation of mutation in question. However, during cross-examination, he admitted that Mubarak Shah started cultivation himself in 1984. He stated that he did not know whether Fazal Shah cultivated his land or not. He admitted that he was not present at the time of attestation of disputed mutation. So, it is clear, that possession was not delivered on the basis of alleged gift. According to Mahomedan Law, delivery of possession on the basis of gift is necessary. Section 149 of Mahomedan Law, reads as under:-- "The three essentials of a gift -It is essential to the validity of a gift that there should be . (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with, the gift is complete."
As stated above, no possession was delivered on the basis of gift Mutation No.1875. So, mutation in question is liable to be set aside on the this score alone. Reliance can be placed on the case of Shamshad AIi Shah and others v. Syed Hasan Shah and others (PLD 1964 SC 143).
4. The most important aspect of the case is that none of- the two donees (Mubarak Shah and Fazal_ Hussain Shah) have opted to appear before trial Court to make statements in support of their version. So, they have failed to prove acceptance of gift. Likewise, they have not produced Muhammad Nawaz, Lambardar, Sardar Shah, Patti Dar and Patwari, in support of their case.
Masood Aslam, D.W.1, stated that Muhammad Nawaz Shah, Lambardar, and Sardar Shah, Khewat Dar, had identified Bahadar Shah at the time of attestation of Mutation. So, it is clear that he did not know the donor and he was identified before him (Tehsildar, D.W.1) by aforesaid persons. As such, they were material witnesses as they had identified the donor (Bahadar Shah) at the time of attestation of mutation in question. Reliance cap be placed on the case of Muhammad Aslam and another v. Imam Bakhsh and 2 others (1980 SCM R 879). In the circumstances of the case, statements of D.W.1 and 2 have no value. The petitioners have failed to produce any worthwhile evidence, therefore, their contention is devoid of force.
5. It is pertinent to note that Fazal Hussain Shah, respondent-defendant, appeared before learned Addl. District Judge on 29-11-2001 and made statement in favour of respondents plaintiffs. He stated that he had no objection if appeal, brought by them was accepted. Admittedly, 1/2 share of suit-land had been transferred in his favour vide Mutation No.1875, dated 14-8-1971. As such, it becomes crystal clear that Bahadar Shah had not transferred the suit-land in favour of defendants-petitioners and Fazal Hussain Shah, respondent, therefore, there was no justification to dismiss the suit, brought by plaintiffs. The perusal of record shows that learned trial Court failed to appreciate the evidence brought on record. However, judgment, dated 6-2-2002 shows that learned Addl. District Judge decided the appeal, brought by respondents, after appraisal of entire material available on record. Learned counsel for the petitioners has failed to point out any misreading or non-reading of evidence. As such there is no justification to set aside the judgment, passed by learned Additional District Judge.
6. The upshot of the above discussion is that this revision petition has no force and the same is accordingly dismissed. No order as to costs.