PLJ 2022 Lahore (Note) 94
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Gift mutation--Validity of gift--Suits for declaration--Consolidation of suits--Lawful execution of gift mutation--Conceding statement of Defendant No. 1--Donor was physically and mentally fit at time of gift--Challenge to--At time of impugned gift, Haji Ahmad was physically and mentally fit person and was in his complete senses--Gift was accepted by defendants on spot in presence of Muhammad Anwar, husband of defendant Razia Bibi--Haji Ahmad with his free will and without any duress and coercion and while being in his senses, has gifted property in favour of defendants and impugned gift mutation in their favour was lawfully executed by him--According to statement of Patwari, impugned mutation in favour of defendants was attested in open assembly wherein donor categorically stated that had gifted property to defendants--Statement of donor at time of attestation of mutation was sufficient and there was no need of appearance of donees. [Para 17, 19 & 20] A, B, C, D & E
2000 SCMR 1021 ref.
Malik Noor Muhammad Awan, Advocate and Mr. Ijaz Khalid Khan, Advocate for Petitioners.
Ms. Shamim Akhtar, Advocate for Respondents No. 1 to 3.
Nemo for Respondents No. 4 to 7.
Date of hearing: 26.9.2017.
PLJ 2022 Lahore (Note) 94
Present: Atir Mahmood, J.
Mst. RAZIA PARVEEN and others--Petitioners
versus
DOST MUHAMMAD and others--Respondents
C.R. No. 933 of 2011, decided on 11.1.2018.
Judgment
Brief facts of the case are that on 15.05.2009, respondents Dost Muhammad and others (hereinafter called “the plaintiffs”) filed a suit for declaration against petitioners Razia Parveen and others (hereinafter called “the defendants”) while challenging gift Mutation No. 558 dated 27.02.2006. They averred that they being legal heirs of Haji Ahmad, original owner of the land measuring 72 kanals bearing Khata No. 49 Khatooni Nos. 165 to 167 as per register of record of rights for the years 2007-08 situated in Chak No. 1-D.B., Tehsil Piplan, District Mianwali, are entitled to inherit their share in the said property; that father of the parties Haji Ahmad did not gift the property in favour of nor handed over possession of the same to the defendants; that the defendants be restrained from changing nature of and alienating the suit property; that there were neither any offer nor acceptance nor delivery of possession of the suit property; that alleged gift Mutation No. 558 dated 27.02.2006 in favour of defendants is result of collusion of revenue staff with the defendants, and fraud and misrepresentation, therefore, it be declared illegal and ineffective upon rights of the plaintiffs.
2. On 23.05.2009, Defendants No. 2 to 4 also filed suit for declaration against the plaintiffs regarding the same property alleging that they were owners in possession of the suit property measuring 52 kanals 16 marlas on the basis of gift Mutation No. 558 dated 27.02.2006 and the plaintiffs had no concern with the same. They also contested the suit of the plaintiffs whereas Defendant No. 1 Bashir Ahmad made a conceding statement in favour of the plaintiffs. The suit of the defendants was contested by the plaintiffs. Both sides filed written statements. Both the suits were consolidated. Issues were framed. Evidence led by the parties was recorded whereafter learned trial Court dismissed the suit of the plaintiffs and decreed the suit of the defendants vide judgment and decrees dated 14.04.2010. The plaintiffs challenged the said judgment and decrees in appeals which were allowed by learned Additional District Judge, Mianwali/Camp Piplan vide judgment and decrees dated 08.03.2011. Hence this civil revision has been filed by Defendants No. 2 to 4 Razia Begum and others.
3. Learned counsel for the petitioners-defendants inter alia contends that the petitioners have proved the validity of the gift as well as the gift mutation by production of overwhelming evidence which has altogether been ignored by learned lower appellate Court while passing the impugned judgment and decree; that there was no question of deprivation of the plaintiffs altogether as they had already for been given their due share by the donor Haji Ahmad; that there was sufficient evidence available on record proving the ingredients of gift, i.e. offer, acceptance and delivery of possession but learned lower appellate Court has illegally held otherwise; that the respondents-plaintiffs could neither establish any fraud on part of the petitioners nor possession over the suit property nor the gift mutation was ever challenged by the donee in his life time who undeniably remained alive for about three years thereafter, as such, the plaintiffs had no locus standi to challenge the same; that the impugned judgment and decree is against law and fact, therefore, the same be set aside and judgment and decree of learned trial Court be restored by way of allowing the instant civil revision. Learned counsel for the petitioners-plaintiffs, in support of his arguments, has placed reliance on the dictums laid down in cases Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 SC 466), Muhammad Amir and others v. Mst. Beevi and others (2007 SCMR 614), Ghulam Muhammad v. Mian Muhammad and another (2007 SCMR 231), Mst. Nusrat Zohra v. Mst. Azhra Bibi and others (PLD 2006 SC 15), Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582), Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another (2000 SCMR 1021), Allah Dad and 3 others v. Dhuman Khan and 10 others (2005 SCMR 564) and Ghulam Muhammad v. Mian Muhammad and another (2007 SCMR 231).
4. On the other hand, learned counsel for the respondents-plaintiffs has vehemently opposed this civil revision and fully supported the impugned judgment and decree. According to them, being beneficiary of the alleged gift mutation, heavy onus to prove the same was upon the defendants who have miserably failed to do so. She asserts that this civil revision has no substance, therefore, it be dismissed. She has relied upon the law laid down in cases Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417) Muhammad Idrees v. Mst. Zeenat Bibi (2005 SCMR 1690), Muhammad Iqbal and another v. Mukhtar Ahmad through LRs (2008 SCMR 855), Sadar Abbad v. Province of Punjab and others (2015 CLC 822 Lahore) and Mehboob Hussain and 8 others v. Nisar Ahmed Malik (1999 MLD 1589 Karachi).
5. Arguments heard. Record perused.
6. The core issue in this case is Issue No. 2 which is regarding lawful execution of impugned gift Mutation No. 558 dated 27.02.2006 in favour of the defendants. The said issue is reproduced below:
“2. Whether the impugned mutation No. 558 dated 27.2.2006 is against the law and facts, illegal, void, inoperative upon their rights and is liable to be cancelled? OPP
If it is proved that the impugned gift mutation is lawfully attested in favour of the defendants, then the plaintiffs have no concern with the suit property and if it is proved otherwise, the defendants will have no title over the suit property.
7. The respondents-plaintiffs have based their case on thefollowing assertions:
(i) Haji Ahmad, predecessor of the parties, neither gifted the property to the defendants nor he and the alleged donees appeared before the revenue officer for attestation of the alleged gift mutation.
(ii) Ingredients of the alleged gift, particularly pertaining to delivery of possession, were not fulfilled.
(iii) Haji Ahmad was bedridden and could not move and the gift mutation was got sanctioned through fraud and misrepresentation.
8. Plaintiff No. 1 Dost Muhammad and Plaintiff No. 2 Nargis appeared before the Court as PW. 1 and PW.2 and made statements in line with their plaint alleging that the suit property was owned by their predecessor Haji Ahmad and after his death, the plaintiffs are entitled to their share in the suit property. They alleged that they are in possession of the suit property through tenant Sarfraz. This Sarfraz appeared before the Court as PW.3. In his cross-examination, he admitted that Dost Muhammad s/o Muhammad Hussain cultivated lands measuring 5/6 acres and had been and was a tenant till then under Defendants No. 2 to 4. No other witness was produced by the plaintiffs in support of their averments.
9. Defendants No. 2 to 4 in their plaint contended that they were owners in possession of the suit property measuring 52 kanals 16 marla through their tenant Dost Muhammad s/o Muhammad Hussain and the plaintiffs had no right to interfere in their possession. In the written statement, they averred that they were owners in possession on the basis of gift Mutation No. 558 dated 27.02.2006. In order to prove the lawful execution of the gift as well as the gift mutation, Defendant No. 3 Mst. Musarrat Bibi appeared as DW.2 whereas the defendants produced Malik Sanaullah, Naib Tehsildar as DW.3, Ameer Hamza, Halqa Patwari as DW.4, Lumberdar Ghulam Yaseen as DW.5, Ali Muhammad as DW.6, Dost Muhammad s/o Muhammad Hussain as DW.7 and Muhammad Anwar as DW.8.
10. Defendant No. 1 Bashir Ahmad made conceding statement in favour of the plaintiffs, Dost Muhammad and others, while appearing before the Court as DW.1. He deposed that his father died on13.02.2009 and before death, he remained seriously ill since 2003. He deposed that he did not know that his father gifted his property. He further deposed that he neither accepted the gift nor is aware of the same. In cross-examination, he admitted that his father through gift Mutation No. 271 dated 31.05.1997 gifted to all the three brothers his property measuring 16 kanals each. He denied the suggestion that said gift mutation was challenged by his father. He admitted that Defendants No. 2 to 4 are in possession of the property through tenant Dost Muhammad s/o Muhammad Hussain. He also admitted that the impugned gift mutation in favour of the defendants was not challenged by his father in his life time. He deposed that his father was a pensioner and he lastly received pension on 12.02.2009. He admitted that his father used to go to the mosque for offering prayers. He deposed that his father also used to recite the Holy Quran. However, he denied the suggestion that his father was in his senses till death.
11. Defendant No. 3 Mussarrat Bibi appeared before the Court as DW.2. She reiterated her stance taken in the plaint as well as the written statement. She added that the suit property to the extent of 52 kanal-16 marlas was gifted to Defendants No. 2 to 4 and remaining land out of the suit property to Defendant No. 1 by their father Haji Ahmad. She averred that Defendants No. 2 to 4 were in possession through their tenant namely Dost Muhammad s/o Muhammad Hussain and they also used to receive their share of produce since the date of hiba. She deposed that their father used to live with her daughters as Plaintiff No. 1 along with his family was settled in Lahore. She averred that the oral gift was made by her father on 12.02.2006 in favour of the defendants when Defendant No. 1 was present and the defendants accepted the same. She stated that her father went to Patwari Halq on 17.02.2006 and got entered rapat in roznamcha and the mutation was attested on 27.06.2006 (wrong date as it was 27.02.2006) whereafter her father went to the tenant Dost Muhammad s/o Muhammad Hussain to ask him that in future, produce of the suit property will be given to her daughters. She asserted that her father was hail and healthy till two weeks prior to his death and he also used to read newspapers. In cross-examination, she stated that on 17.02.2006 (wrong date as it was 27.02.2006), her sisters did not appear but she appeared before the Tehsildar. She deposed that at the time of the gift, her brother-in-law Muhammad Anwar was also present. She deposed that the possession was handed over to them on the next day of attestation of the gift mutation in their favour. She denied the suggestion that her father remained ill for about 6/7 years. Muhammad Anwar appeared as DW.8 and deposed in line with the statement of DW.3.
12. Naib Tehsildar Malik Sanaullah appeared as DW.3. He deposed that Haji Ahmad, who was duly identified by Lumberdar Ghulam Muhammad and Pattidar Ali Muhammad, appeared before him and admitted the factum of gift of the suit property in favour of his one son and three daughters and in the light of the said statement, he (Naib Tehsildar) attested the mutation on 27.02.2006. He further deposed that at that time, Haji Ahmad was physically and mentally fit. In cross-examination, he stated that none of the defendants appeared before him. He denied the suggestion that donor when appeared before him was unable to walk. He denied the suggestion that the donor did not sign and thumb mark before him. He denied further that the donor was not in senses due to his illness.
13. Ameer Hamza, Patwari appeared as DW.4 to depose that he on asking of Haji Ahmad, entered the mutation in favour of his three daughters and one son on 17.02.2006 which was attested on 27.02.2006 when donor, donees, Lumberdar Ghulam Muhammad, Pattidar Ali Muhammad and Muhammad Anwar, husband of Razia Bibi, were present. He stated that in his presence, Haji Ahmad signed Exh.D4 (impugned mutation). He stated that Haji Ahmad, at that time, was physically and mentally fit person who before the Tehsildar admitted the entries of mutation as true. In cross-examination, he stated that he knew Haji Ahmad for about 2½ years who was an old man. He denied the suggestions that the donor could not walk or was a heart patient or he was not in his senses. He also denied that the defendants did not accept the gift.
14. Ghulam Yaseen son of Ghulam Muhammad Lumberdar (deceased) appeared before the Court as DW.5 and identified signatures of his father on the impugned mutation.
15. Ali Muhammad appeared as DW.6 and corroborated the version of the defendants.
16. Dost Muhammad s/o Muhammad Hussain, tenant, put appearance in the witness box as DW.7. He deposed that on 12.02.2006, Haji Ahmad and Muhammad Anwar came to him and Haji Ahmad said to him that he had gifted his property measuring 72 kanals to his three daughters and one son Bashir Ahmed as they have served him. He further deposed that on 27.02.2006, after attestation of the mutation, Haji Ahmad again came to him and stated that he was no more owner of the property, therefore, the produce was to be given to the defendants in future. He stated that since that day, he is giving the produce to the defendants. He deposed that Haji Ahmad was hail and healthy at the time when he came to him and he did not demand the produce afterwards till his death. He deposed that he and daughters of Haji Ahmad used to pay malia of the land jointly. In cross-examination, he stated that Bashir Ahmad has told him that his father had gifted the property to him. He further deposed that Haji Ahmad had earlier gifted his property to his sons. He denied the suggestion that Haji Ahmad was a heart patient. Volunteered, he was fit till his death. All the material witnesses including DW.2, DW.3, DW.4, DW.7 and DW.8 were cross-examined at length but no dent could be put in their evidence. The evidence of DW.5 and DW.6 also remained unshaken.
17. Perusal of the above evidence reveals that at the time of the impugned gift, Haji Ahmad was physically and mentally fit person and was in his complete senses. This fact of good health of Haji Ahmad could even not be denied by Defendant No. 1 who made conceding statement in favour of the plaintiffs Dost Muhammad and others as he has admitted that his father used to offer prayers in the mosque and recite the Holy Quran. Haji Ahmad, being in good health and senses, gifted his property through the impugned mutation in favour of his one son and three daughters, i.e. the defendants, on 12.02.2006. This gift was accepted by the defendants on the spot in presence of Muhammad Anwar, husband of defendant Razia Bibi. On the same day, Haji Ahmad went to the tenant Dost Muhammad s/o Muhammad Hussain to tell him that he gifted out his property to his one son and three daughters, therefore, the produce will be given to the donees in future. On 17.02.2006, he along with Muhammad Anwar went to Patwari to enter rapat in this regard and finally appears before extent of their possession over the suit property through Sarfraz is belied by their own witness. The plaintiffs have also failed to produce any independent witness except Sarfraz in support of their stance. On the other hand, the stance of the Defendants No. 2 to 4 is duly corroborated by independent witnesses including Naib Tehsildar DW.3, Halqa Patwari DW.4, Ghulam Yaseen son of Lumberdar Ghulam Muhammad, Ali Muhammad Pattidar and Dost Muhammad s/o Muhammad Hussain as all the said witnesses have no interest in the suit property. Even brother of the plaintiffs Bashir Ahmed, who was arrayed as Defendant No. 1, could also not support stance of their brothers that their father was not in his senses or was not physically and mentally fit when he says that his father used to go to mosque and recite the Holy Quran. This clearly means that Haji Ahmad at the relevant time could move, walk and understand things.
19. Another aspect of the matter is that earlier, Haji Ahmad gifted his property in favour of his sons through Mutation No. 271 dated 31.05.1997. However, he through Civil Suit No. 106/2005 titled Haji Ahmad v. Dost Muhammad and others sought for cancellation of the said mutation in favour of Dost Muhammad etc. This suit was dismissed by learned Civil Judge, Piplan vide judgment and decree dated 18.01.2006. Just after one month of dismissal of his suit, he gifted the property to his daughters and one son Bashir Ahmed. This speaks loudly that he was not happy with the plaintiffs, therefore, he prayed for cancellation of the mutation in their favour. However, when he failed to get the mutation in favour of the plaintiffs cancelled, he resorted to transfer his property in favour of his daughters and one son Bashir Ahmad. This aspect of the matter supports the version of Defendants No. 2 to 4 that their father used to live with his daughters and was happy with them but annoyed with the plaintiffs. This is not a case where some of the legal heirs have been deprived from their legal right as the plaintiffs were already given land by their father through gift Mutation No. 271 dated 31.05.1997. Preponderance of evidence heavily lies in favour of the defendants and against the plaintiffs. In the circumstances, I am of the considered opinion that Haji Ahmad with his free will and without any duress and coercion and while being in his senses, has gifted the property in favour of the defendants and the impugned gift mutation in their favour was lawfully executed by him.
20. The contention of learned counsel for the respondents is that neither of the defendants was present before Naib Tehsildar at the time of attestation of the mutation. According to the statement of the Patwari, the impugned mutation in favour of the defendants was attested in open assembly wherein the donor categorically stated that the had gifted the property to the defendants. Same is the version of the Naib Tehsildar. In my view, the statement of the donor at the time of attestation of the mutation was sufficient and there was no need of appearance of the donees. In this regard, I am fortified by the dictums laid down in case “Mst. Hairan Bibi and another v. Mst. Maryam Bibi and another” (2000 SCMR 1021). The argument of learned counsel for the respondents is accordingly repelled.
21. For the aforementioned reasons, the impugned judgment and decrees passed by learned lower appellate Court are against law and facts, therefore, these cannot sustain. Resultantly, this civil revision is allowed, the impugned judgment and decrees passed by learned lower appellate Court are set-aside and the judgment and decrees passed by learned trial are restored.
(Y.A.) Civil revision dismissed
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