DER ' Muhammad Sarwar, Majid Rasheed and Muhammad Abbas had transferred 16 Kanals of land situated in Chak No,10, Fordwah, Tehsil Chishtian, District Bahawalnagar to one Muhammad Rafiq son of Niamat Ali, the respondent of the instant civil revision through Mutation No,943, sanctioned on 9-5-1996. Nature of the transaction, shown in the aforesaid mutation was gift from Muhammad Sarwar and others, as noted above, from alieners/donors in favour of Muhammad Rafiq, donee.
Knowing and believing it to be a sale transaction, the present petitioner, Muhammad Anwar filed a suit for recovery of possession of the aforesaid lands on the basis of his superior right of pre- emption in the Court of learned Civil Judge, Chishtian on 7-9-1996. In the plaint, Muhammad Anwar, plaintiff/pre-emptor asserted that transaction was in fact a sale but was given the colour of gift. The suit was contested by filing written statement. Issues were framed and the parties had adduced their oral as well as documentary evidence. The learned Civil Judge decreed the suit on 11-11-1999 in favour of Muhammad Anwar, petitioner/pre-emptor while on appeal, the learned Additional District Judge reversed the judgment and decree of the learned Civil Judge on 4-5-2002 and dismissed the suit of the petitioner. Aggrieved thereby, Muhammad Anwar has filed the instant revision petition.
2. Raja Muhammad Sohail Iftikhar, the learned Advocate, appearing on behalf of the petitioner has addressed his arguments on following three points:--
(i) Limitation; (ii) Performance of Talbs; and (iii) Nature of transaction.
3. According to the learned counsel, learned Additional District Judge liras wrongly noted in his judgment that the suit was barred by limitation although this was not the real fact. The suit was filed on 7-9-1996 while Mutation in dispute No,943 was attested on 9-5-1996. The suit having been filed within four months was filed within limitation. The learned counsel appearing on behalf of the respondent has admitted this version of the learned counsel for the petitioner as correct. So, the finding of the learned Additional District Judge are upset, and the suit is held to have been filed within the prescribed period of limitation.
4. As regards the performance of Talbs, referred to in pars: No,12 of the learned Additional District Judge's judgment, learned counsel has stated that it was a self-contradictory judgment and the learned lower Appellate Court had failed to consider the evidence on the point of performance of Talbs, which were duly performed by the plaintiff/ petitioner. Disputing the findings of the learned Appellate Court below on the issue of performance of Talbs, learned counsel for the petitioner stated that the petitioner had produced Muhammad Ashiq as P.W.1, Faqir Muhammad P.W.2 and Allah Ditta, P.W.3, who had supported the case of the petitioner.
5. Opposing the arguments, it has been replied by the learned counsel for the respondent that the petitioner/plaintiff had failed to prove the performance of Talbs in accordance with the provisions/ requirements of law of pre-emption. Learned counsel for the respondent has argued that Talb-e- Muwathibat and Talb-e-Ishhad were not proved in accordance with law.
6. Learned counsel for the petitioner has submitted that the alleged donee was bound to prove the factum of gift as he was the beneficiary of it. As per learned counsel, the defendant/respondent had failed in it because he was not related to the donors. The donors had their own children and there was no cogent reason to make the gift in favour of Muhammad Rafiq, donee. The donors were of separate castes and had different places of residences and the possession of the lands was that of Muhammad Anwar, petitioner, which was never delivered. So, the defendant had failed to prove the factum of gift and the findings of the learned Appellate Court below were not maintainable in the eye of law.
7. Learned counsel appearing on behalf of the respondent contradicting the arguments of the petitioner's learned counsel has stated that the plaintiff-petitioner had failed to prove the factum of sale as it was alleged by him. No credible evidence was produced by the petitioner, therefore, the suit was rightly dismissed.
8. I have heard the learned counsel for the parties, perused the record, scanned the evidence and analysed the statements of witnesses and documents, and have reached to the conclusion that the revision of the plaintiff/petitioner is liable to be dismissed.
9. In para. No,6 of the plaint, no specific date of gaining the knowledge of the transaction by the plaintiff was entered into. The words of middle of August, 1996 were not sufficient for the purpose of counting of date from Talb-e-Muwathibat to that of Talb-e-Ishhad because from the definite date the period for performance of Talb-e-Ishhad and the sending of the registered notice under section 13(3) of the Punjab Pre-emption Act, 1991 was to be determined. The general words cannot save the defect having arisen for the fixation of the period of limitation, as to whether the notice of Talb-e-Ishhad was dispatched within the prescribed period of limitation as required by section 13(3) of the Punjab Pre-emption Act, 1991. As no date was entered into the plaint, therefore, it cannot be held that the notice of Talb-e-Ishhad (Exh.P.2) was dispatched within period of limitation.
10. To prove the aforesaid notice of Talb-e-Ishhad (Exh.P.2), evidence brought on the record by the petitioner is also not creditworthy.Muhammad Ashiq, P.W.1, Postmaster has deposed with regard to receipt of acknowledgement although Exh.P.1 was the receipt of post office, by which an envelope is shown to have been handed over for its dispatch. There is nothing shown on. The receipt that payment was made for a registered envelope with A.D. Copy of notice of Talb-e-Ishhad (Exh.P.2) was not produced by the plaintiff himself but was brought on record from the custody of P.W.2 Faqir Muhammad, who was real uncle of the plaintiff. There is wider difference in the statements between P.W.2 and P.W.3 with regard to the writing of notice Exh.P.2. According to P.W.2, Faqir Muhammad, notice was written one or two days after the knowledge of the transaction while according to Allah Ditta, P.W.3, it was written after 8/10 days afterwards, from the date of knowledge, while in Exh.P.2 (notice), the knowledge was stated to have been imparted to the petitioner three days before the writing of the notice. P.W.2 was unable to tell as to who had written the notice. He was not certain as to whether the notice was jotted down by an Advocate or by any petition writer although he was literate and had been visiting the Katchery. According to P.W.3, Allah Ditta, the notice Exh.P.2 was engrossed by Mr. Miraj Mirza, Advocate, upon which he had also signed. But Exh.P.2 disproves these facts. So, the inscribing of notice Exh.P.2 and its dispatch have not been proved upto the mark. Therefore, this kind of evidence on this point of Talb-e-Ishhad is not of such nature as to be believed with certainty.
11. Whether the transaction is a sale or gift, question arises as to who has to prove it, the plaintiff or the defendant? It is settled law that the person who comes to Court and asserts the facts to be believed true by the Court, has to prove it by bringing cogent evidence to it on the record. The plaintiff has to stand upon his own legs and has not to use the crutches of the defendants to prove his case. The apparent nature of, the transaction as evidenced through disputed Mutation No,943, dated 9-5-1996 is a gift transaction. To prove it to be otherwise and the transaction of sale and having disguised as gift was the duty of the plaintiff to bring such an evidence on the record. No doubt the reasons and the motive for making the gift do not appear to be sound on the record yet it does not absolve of the plaintiff to prove it a sale transaction. The sale transaction has got its own ingredients, which are to be brought and proved On the record. The definition of sale is found in section 54 of the Transfer of Property Act and also in clause (b) of section 2 of the Punjab Pre- emption Act, 1991. No evidence with regard to the negotiation, fixation and payment of the price (valuable consideration) promised or actually paid as defined in the above noted sections was produced by the petitioner on the record.
12. The Court cannot declare a transaction to be a sale without proving the ingredients of sale. Mere suspicious, dubious in some particulars a transaction cannot be converted its nature to the other for the purpose of pre-emption. Sale has to be proved with all its concomitants components otherwise it would not be believed as prayed for.
13. It is pertinent to point out that one of the donors had entered into witness-box and had proved it a real gift transaction. Respondents have also produced other Revenue officials to prove it a pure and simple gift. Therefore, I do not consider that plaintiff has proved the sale ingredients in the dispatched transaction. The plaintiff being a stranger to the gift had to bring out the real nature of the transaction of sale by production of believable cogent evidence.
14. The principle that the beneficiary of the gift has to prove it, cannot be applied to this case, because when the existence or validity of a gift is challenged by a third person, then the abovenoted principle would not be applicable. In the present case, the person, who challenges or is disputing the factum of gift, has to prove it and not the beneficiary of the transaction.
15. From the above discussion, I do not consider it a fit case for exercise of revisional jurisdiction, therefore, the revision petition is dismissed with no order as to costs.