PLJ 2022 Lahore 287
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, 1908--Suit for declaration--Forged tamleek deed--Suit was decreed--Appeal--Allowed--Abdundent duty of defendant--Failing to prove mandatory ingredients of valid gift--Duty of beneficiary--Non-compliance of mandatory provision of law--Non-considering of oral and documentary evidence by appellate Court--Defendant has failed to prove mandatory ingredients of a valid gift which oust substratum of his stance--Here in this case admittedly only one marginal witness was produced and other marginal witness was not produced in evidence by respondent without any reason which is blatant non-compliance of mandatory provision of law and it can conveniently be held that respondent has failed to prove execution of alleged Tamleek Nama--Findings of appellate Court are based on blatant mis-reading and non-reading of material record and same deserve reversal--Petitioners through convincing and trustworthy evidence successfully proved that alleged Tamleek Nama as well as gift mutation entered whereunder in favour of respondent are result of fraud, which material facts have not been considered by appellate Court who by committing misreading and non-reading of evidence--Appellate Court did not consider oral as well as documentary evidence and by committing misreading and non-reading of evidence, passed impugned judgment & decree which suffers from patent illegality and irregularity, as such, same is liable to be set-aside--Revision petition allowed. [Pp. 292, 294 & 295] B, D, E & F
2002 SCMR 1089, PLD 2011 SC 241, PLD 2015 SC 187 and
2016 SCMR 24 ref.
Muhammadan Law--
----Para 149 & 150--Pre-requisites of valid gift--As per Para Nos. 149 and 150 of the Muhammadan Law, three important prerequisites of valid gift has been described such as offer, acceptance and delivery of possession which are considered mandatory in nature.
[P. 291] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17, 79, 129(g)--Duty of Beneficiary--It is duty of defendant to prove alleged Tamleek Nama by producing two marginal witnesses.
[P. 293] C
Ref. 2016 SCMR 662; 2017 SCMR 402; 2019 SCMR 1095.
Syed Muhammad Ali Gillani, Advocate for Petitioners.
Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Respondents.
Date of hearing: 1.3.2021.
PLJ 2022 Lahore 287
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
versus
GHULAM FAREED etc.--Respondents
C.R. No. 582-D of 2010, decided on 1.3.2021
Judgment
Through this civil revision, the petitioners have challenged the judgment & decree dated 07.04.2010, passed by the learned Additional District Judge, Mailsi whereby the appeal of the Respondent No. 1 was accepted and by setting aside the judgment & decree dated 23.06.2008, passed by the learned Civil Judge, Mailsi, the suit of the petitioners was dismissed.
2. Brief facts of the case are that Allah Bukhsh, predecessor-in-interest of the parties of the lis, filed a suit for declaration against his real son namely Ghulam Fareed, Respondent No. 1/defendant on 01.02.1995 contending therein that Tamleek Deed No. 821 dated 18.07.1992 and subsequent transaction whereof/ gift Mutation No. 928 dated 30.03.1994 are forged, fictitious and are product of fraud, misrepresentation and collusiveness. He further contended that he is paralyzed for the last 8-10 years and about 2-1/2 years before, Ghulam Fareed, Respondent No. 1/defendant, obtained his thumb impressions on blank papers on the pretext of getting loan from the bank in order to purchase a tractor. Allah Bakhsh plaintiff alleged that he neither executed any Tamleek Deed nor transferred the suit land nor delivered the possession of the suit land to the respondent/defendant Ghulam Fareed. The Respondent No. 1/defendant filed contested written statement and controverted the assertions contained in the plaint. According to adversarial pleadings of the parties the learned trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment & decree dated 23.06.2008. The Respondent No. 1 filed an appeal which was allowed by the learned appellate Court vide judgment & decree dated 07.04.2010 and by setting aside the judgment & decree dated 23.06.2008, passed by the learned trial Court, the suit of the petitioners was dismissed. Hence, this civil revision.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. The core controversy in this case revolves around Issue No. 1, which is reproduced as under:
"Whether gift Mutation No. 821 dt. 18-7-1992 and Mutation No. 928 dt. 30-3-94 are void being against facts and law? OPP
In order to dissipate the onus of issue, plaintiff Allah Bukhsh, himself appeared as P.W.1 and deposed that:
بیان کیا کہ میں اراضی متد عومہ کا مالک کامل قابض ہوں ۔ میں عرصہ 9/10 سال سے فالج کا مریض ہوں ۔ ان پڑھ اور سادہ لوح دیہاتی ہوں ۔ میری عمر 81 سال ہے ۔ جبکہ مد عاعلیہ میرا بیٹا انتہائی چالاک ہے ۔ مد عاعلیہ نے عرصہ تقریبا تین سال قبل مجھے ٹریکٹر کے لئے زرعی بنک سے قرضہ حاصل کرنے پر مجبور کیا ۔ جسپر میں نے مدعا علیہ پر اعتبار کرتے ہوۓ قرضہ کے حصول کی خاطر چند سفید کاغذات پر انگوٹھا جات لگا کر مد عاعلیہ کو دے دیئے ۔ آج سے عرصہ 10 ماہ قبل میں نے اپنی اراضی اپنے جیتے جی اپنے شرعی وارثان میں تقسیم کرنے کا ارادہ کیا اور پٹواری حلقہ سے رجوع کیا تو پٹواری حلقہ نے بتایا کہ تمہاری ملکیتی اراضی تو مد عاعلیہ کے نام بذریعہ تملیک نا مہ نمبری 821 مورخہ 18.07.92 اور انتقال نمبر 928 مورخہ 30.03.94 منتقل ہو چکی ہے جو کہ تملیک نامہ نمبری 821 مورخه 18.07.92 دھوکہ دہی ، فراڈ سے کی گئی اور پھر اس کی بنیاد پر غلط انتقال نمبر 928 تصدیق کر وایا حالانکہ میں نے کبھی بھی تملیک اراضی کی غرض سے کسی افسر مجاز کے روبرو بیان نہ دیا اور نہ ہی میں کبھی کسی افسر مجاز کے روبرو بابت تملیک متد عو یہ بر وانتقال تصدیق کروانے کے لیے پیش ہوا ۔ ایسی کسی دستاویز پر نہ تو میں نے کبھی انگوٹہ جات لگاۓ اور نہ ہی مجھے کبھی کوئی تملیک نامہ پڑھ کر سنایا گیا ۔ مد عاعلیہ بقیہ وارثان کو محروم کرنے کی غرض سے جعلی و فرضی تملیک کروائی اور پھر انتقال تصدیق کروایا ۔ جو کہ غلط خلاف قانون ، خلاف واقعات اور خلاف انصاف ہے ۔ میں اگر تملیک کرتا بھی تو اپنے تمام شرعی وارثان بیٹوں اور بیوی کو کر تا ۔ تملیک متد عومیہ سے میرا کوئی تعلق واسطہ نہ ہے ۔ تملیک نمبر 821 مورخہ 18.7.92 اور اس تملیک نامہ کی بنیاد پر قائم انتقال نمبر 928 مورخہ 30.3.94 خارج فرمایا جائے ۔
Abdul Razzaq (P.W.2) deposed in his statement that during the pendency of the suit, plaintiff Allah Bukhsh died upon which his legal heirs were impleaded. After completion of the evidence of petitioners/ plaintiffs, the suit was decreed ex-parte on 11.12.1997. Thereafter, on the application of the respondents/defendants, the ex-parte judgment & decree dated 11.12.1997 was set aside and the evidence of the parties re-recorded.
5. Thereafter, Ameer Mai (P.W.1), one of the petitioners/plaintiffs, deposed that they are the legal heirs of Allah Bukhsh; that Allah Bukhsh did not gift any property to his son; that Ghulam Fareed committed fraud; that he (Allah Bukhsh) was aged about 80 years and was paralyzed and illiterate person; that in order to get loan from Agricultural Bank, Ghulam Fareed obtained thumb impressions of Allah Bukhsh on blank papers; that their father (Allah Bukhsh) in his lifetime filed suit; that after the death of Allah Bukhsh, Ghulam Qadir and Ghulam Hussain did not incorporate them (sisters) as party in the suit; that their brothers are trying to deprive them from their share in inheritance. Ghulam Qadir (mentioned by the learned trial Court as P.W.1) deposed that his father was owner of land measuring 177 Kanal 15 Marla; that he never gifted the property to Ghulam Fareed; that his father challenged the gift in his lifetime. Noor Muhammad (P.W.2) and Abdul Razzaq (P.W.3) also supported the version of the petitioners/plaintiffs.
6. To controvert the version of the petitioners/plaintiffs and to prove the impugned transactions, the respondent/defendant, Ghulam Fareed, produced Tariq Sharif, Sub Registrar (D.W.1), who stated that on 18.07.1992, he was appointed as Tehsildar/Sub-Registrar; that he attested the gift deed. In cross examination he stated that:
 |
The Respondent No. 1/defendant, Ghulam Fareed himself appeared as D.W.2 and stated that the suit land was gifted by his father in his favour. In cross examination, he deposed that when the gift was made, Allah Bukhsh doner was about 80-85 years of age; that at the time of gift, no one accompanied with him.
7. The respondent/defendant derives his right from the alleged Tamleek Deed (Exh.P. 1), perusal whereof shows that it does not bear signatures of the parties on its first page and only one thumb impression of Allah Bukhsh is available on first page at the bottom, which also proves the version of the petitioners/plaintiffs that the respondent/defendant obtained the thumb impressions of Allah Bukhsh deceased on the blank papers. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain vs. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:
6. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [Sec Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras' Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish "consensus ad idem". Thus, on the basis of such type of document, which is non-compliant to the said principle of law, a decree for specific performance could not be issued. This view finds support from the case of Zafar Iqbal and others vs. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon'ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.
(emphasis supplied)
"32 However, the said respondent was still required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the Respondent No. 1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh.DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However, neither has the Respondent No. 1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however, the Respondent No. 1 has failed ever to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any of them who participated in the relevant jalsa-e-aam/assembly been produced by Respondent No. 1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but 'such also has not been claimed by Respondent No. 1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of subsection (7) of Section 42 of the West Pakistan Land Revenue Act, 1967. The Respondent No. 1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the Respondent No. 1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs. 8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the, date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mesne profit the Respondent No. 1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid".
11. From the above, it can conveniently be held that the respondent/defendant failed to prove the execution of alleged Tamleek Nama through any convincing and trustworthy evidence. Resultantly the relinquishment deed (Tamleek Nama) itself as well as mutations whereof are result of fraud manipulation misrepresentation and deserve reversal, as such, the subsequent mutations entered on the basis of the said Tamleek Nama is also held to be entered on the basis of fraud and mala fide.
15. Resultantly, this civil revision is allowed, the judgment & decree dated 07.04.2010, passed by the learned appellate Court is set aside, the judgment & decree dated 23.06.2008, passed by the learned trial Court is upheld and the suit of the petitioners/plaintiffs is decreed as prayed for with cost throughout.
(Y.A.) Petition Allowed
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