PLJ 2023 Lahore (Note) 25
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39 & 42--Oral gift mutation--Fraudulent document--Alienation of suit property--Illiterate folk lady--Suit for declaration and cancellation of gift mutation--Dismissed--Appeal--Dismissed--Doctrine of undo influence--No thumb-impression of donee/donor was bear on mutation--Law of limitation--Status of co-owner--Petitioner per law firstly was required to bring on record death entries of alleged late signatories and secondly he ought to have sought leave to examine secondary evidence so as to prove that marginal witnesses as well as Revenue Officials had put their thumb impressions/signatures to attest mutation, but no such effort was ever made--Petitioner without having any information with regard to availability or unavailability of Pativari and Tehsildar closed his evidence--DW-3 was also not signatory of impugned mutation, thus he had no direct knowledge--Next backdrop of case was that subject mutation was effected on behalf of illiterate and folk lady as well. Legal protection was to be available to her, which is meant for a pardanashin woman and in such situation, it was sine qua non for beneficiary to have proved that donor coupled with independent advice had pronounced gift with conscious mind, but to this effect nothing was brought on record--Relationship of alleged donor, possibility that she was under undue influence of petitioner could not be ruled out--Doctrine of undue influence is intended to grant protection against transaction procured by exercise of insidious forms of influence--Impugned mutation did not bear thumb impression of donor/donee nor authored by any of them--Plaintiff still has status of co-owner, thus law of limitation, otherwise cannot be applied against her.
[Para 5, 6 & 8] B, C, D, E, F, G & I
2016 SCMR 1225, ILR 158 C 684 & 1929 AC 127, 1997 SCMR 459, 2013 SCMR 868; 2016 SCMR 1225
Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Sanctioning of mutation--Mutation is always sanctioned through summary proceedings and is intended just to keep record update for collection of land revenue--Such entries u/s.42 of Land Revenue Act, 1967 are made in concerned Register, which attains no presumption of correctness prior to its incorporation in Record of Rights. [Para 4] A
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Limitation--Article 120 of Limitation Act, 1908 has provided period of six years only from date of right to sue, which would accrue to aggrieved party when right was denied by adversary. [Para 8] H
Cause of action--
----Every new entry in record of right gives fresh cause of action to plaintiff. [Para 8] J
1995 SCMR 284.
Mr. Muhammad Yamin Raza, Advocate for Petitioner.
M/s. Mushtaq Ahmad Dhoon & Naila Mushtaq Dhoon, Advocates for Respondent.
Date of hearing: 15.9.2022.
PLJ 2023 Lahore (Note) 25
Present: Ch. Muhammad Masood Jahangir, J.
MUHAMMAD ASHRAF--Petitioner
versus
ADJ etc.--Respondents
C.R. No. 830 of 2017, heard on 15.9.2022.
Judgment
The judgment dated 10.02.2017 of learned Appellate Court below is subject of petition in hand, whereby while setting aside decision of 09.02.2013 passed by learned Trial Court, the suit of lady/Respondent No. 2/plaintiff was decreed.
2. The subject area measuring 5Kanals 17marlas was exclusively titled by lady/Respondent No. 2, whereas petitioner was not only her cousin, rather she wedded him and within next 2/3 years the said property was allegedly alienated to the petitioner via oral gift Mutation No. 1237 dated 18.09.1972 (Exh.D1), however unfortunately soon thereafter he divorced Respondent No. 2. The latter on 23.07.2008 instituted declaratory suit for confirmation of her title besides cancellation of Exh.D1 while asserting that proclamation of gift was never pronounced, thus no question arose for its acceptance or change of possession in lieu thereof, that neither she appeared before Revenue-Officials/Officer for the entry or attestation of mutation nor it was ever thumb marked by her, that the petitioner/defendant in connivance with Revenue Field Staff while practicing fraud maneuvered sanction of mutation, which was kept secret, whereas respondent/plaintiff being illiterate/folk lady never came across to said fraudulent document and when apprised, the suit was promptly instituted. It though was contested by the petitioner/beneficiary while asserting that respondent/plaintiff herself did appear before Revenue Officials/Officer for sanction of mutation and also thumb marked the same in acknowledgement of transaction couched therein, but admittedly essential detail viz time, date, venue as well as names of witnesses was not provided in the written statement so as to establish, when, where and before whom alleged original transaction of gift matured. The learned Civil Court facing with the divergent pleadings of the parties settled issues, enabling them to lead evidence, which in pros & cons was recorded. As a result of its appreciation, the suit of the respondent/plaintiff though was dismissed vide judgment dated 09.02.2013 by learned Civil Court, yet learned Additional District Judge in exercise of its appellate jurisdiction decreed the same via impugned decision of 10.02.2017. Being aggrieved, this petition was filed by petitioner to check its validity and legality, which since then was here.
3. Argument heard and record scanned with able assistance of learned counsel for the parties.
4. Before embarking upon merits of the case and further proceeding with the determination of respective stances of the parties, it is felt appropriate to commend upon the principle dealing with transfer of immovable property effected through mutation. It is well established by now that mutation is always sanctioned through summary proceedings and is intended just to keep the record update for the collection of land revenue. Such entries under Section 42 of the Land Revenue Act, 1967 are made in concerned Register, which attains no presumption of correctness prior to its incorporation in the Record of Rights. No doubt, the entries in the mutation are admissible in evidence, but require to be proved independently through concrete and solid evidence by the person relying upon it. Having such philosophy in mind, this case is to be dealt with. Admittedly, per contents of the written statement neither constitutive detail of the alleged transaction nor happening of its basic three conditions i.e. “offer”, “acceptance” ad “delivery of possession” was pertinently described. It is well established by now that a party before proving an act has to narrate its detail in its pleadings under the mandate of well recognized principle “secundum allegata et probata”, which has full command of provisions of O.VII R.2 and O.VIII R.2 of the Code, 1908, but written statement of petitioner was completely silent to that extent, which inaction was fatal for them.
5. Per available record the respondent/plaintiff (PW1) and supporting witnesses Muhammad Siddique (PW2) as well as Ghulam Haider (PW3) explicitly made their statements-in-chief in line with the contents of plaint that offer of gift was never made, that alleged donor did not appear before the Revenue Official or Officer for entry and attestation of subject mutation, and that it was maneuvered by practicing fraud. Thus onus successfully was shifted upon the petitioner/beneficiary to prove due sanction of mutation by falling back upon original transaction. It was a hard fact that though beneficiary/defendant Muhammad Ashraf (DW1) entered into the witness-box, who though was also supported by Tariq Mehmood (DW2) and Muhammad Younas (DW3), yet none out of them uttered that the respondent/plaintiff had ever orally pronounced gift, which was accepted by the petitioner/defendant and possession delivered to the latter in lieu thereof. It was a hard fact that not a single signatory of impugned mutation including concerned Patwari as well as Revenue Officer in spite of being in right position to belie the allegation of the respondent that she did not appear before them was summoned as well. There might be some weight in the submissions of learned counsel for the petitioner that suit was instituted after more than forty years of the sanction of mutation, thus none out of the signatories thereof were available. The fact remained that in such situation petitioner per law firstly was required to bring on record the death entries of alleged late signatories and secondly he ought to have sought leave to examine the secondary evidence so as to prove that the marginal witnesses as well as Revenue Officials/Officer had put their thumb impressions/signatures to attest the mutation, but no such effort was ever made. Anyways, the beneficiary/petitioner (DW1) during cross-examination worded that:
Who further uttered to the following effect:
Having gone through these glimpses, the petitioner while saying that consideration had been paid, seriously doubted his alleged claim of gift, whereas sanction of mutation in Tehsil was again violative to the requirement of law, which necessarily was to be attested in public assembly so convened in the concerned Revenue Estate. However, when mutation was consulted, the learned counsel for the petitioner admitted that it did not bear thumb mark of alleged donor, thus confirmed that to that effect contents of the written statement and deposition of petitioner (DW1) were contrary to each other. In addition thereto, the petitioner without having any information with regard to availability or unavailability of the Patwari and Tehsildar closed his evidence, which compelled to draw hostile inference under Article 129 illustration (g) of the Order ibid that had these best witnesses been produced, they might have deposed that the donor did not appear before them to acknowledge the purported gift. The further probe of evidence of the petitioner explored that DW-2 was his real brother, who had no direct knowledge. His deposition to the effect that:
6. The next backdrop of the case was that subject mutation was effected on behalf of illiterate and folk lady as well. Per judgments of the apex Court rendered in cases reported as Taleh Bibi and others. Mst. Maqsooda Bibi and another (1997 SCMR 459), Mian Allah Ditta through LRs vs. Mst. Sakina Bibi and others (2013 SCMR 868) and Phul Peer Shah V. Kafeez Fatima (2016 SCMR 1225); the legal protection was to be available to her, which is meant for a pardanashin woman and in such situation, it was sine qua non for the beneficiary to have proved that donor coupled with independent advice had pronounced the gift with conscious mind, but to this effect nothing was brought on record. Moreover, while keeping in mind the age and relationship of the alleged donor, the possibility that she was under undue influence of the petitioner could not be ruled out. The doctrine of undue influence is intended to grant protection against transaction procured by the exercise of insidious forms of influence. See Muhammad Bakhsh Khan vs. Hosseini Bibi (ILR 15 PC 684) and Indie Noriach vs. Shaikh Allie Bin Omer (1929 AC 127). In former case their Lordships of the Judicial Committee observed to the following effect:
“where undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same, though the circumstances differ; and, as a general rule, the same questions arise; (a) whether the gift in question is one which a right-minded person might be expected to make; (b) is it or is it not an improvident act on the donor’s part; (c) is it such as to have required advice, if any, obtained by the donor; and (d) whether the intention to make the gift originated with the donor.”
whereas in the latter judgment it was held as follows:
“where the relation between the donor and donee raises a presumption that the donee had influence over the donor, the Court will set aside the gift unless the donee established that it was the spontaneous act of the donor acting in circumstances which enabled him to exercise an independent will, and which justified the Court in holding that it was the result of a free exercise of the donor’s will.”
This principle has recently been reinforced by the hon’ble Supreme Court in its judgment styled as Ghulam Muhammad vs. Zohran Bibi and others (2021 SCMR 19).
7. The submission of learned counsel for respondents that the impugned mutation was assailed after 30 years and per law presumption to such a document was attached, is not well founded. Reliance can be placed on the judgment reported as Allah Ditta vs. Aimna Bibi (2011 SCMR 1483). Moreover, in Ghulam Farid and another vs. Sher Rehman through LRs (2016 SCMR 862) wherein the apex Court observed that if a document is required to be proved through production of two marginal witnesses, then presumption attached to thirty years old document under the aforesaid provision of law cannot be placed on the better pedestal and specially when the mutation was not thumb impressed by the executant, then the same was neither protected nor attained the relevant qualification. The identical situation is in the lis in handy because the impugned mutation did not bear thumb impression of the donor/donee nor authored by any of them.
8. The further emphasis of learned counsel for petitioner that suit was badly time barred and learned Trial Court was perfect to dismiss the same is also misconceived, because a document alleging to be result of fraud and forgery could be questioned at any point of time. As regards filing of a suit for declaration Article 120 of the Limitation Act, 1908 has provided period of six years only from the date of right to sue, which would accrue to the aggrieved party when his/her right was denied by the adversary. In the case in hand, it was specifically pleaded by the plaintiff that subject property had never been gifted out by her, whereas impugned mutation came into her knowledge some days earlier when the petitioner proclaimed him to be the owner, thus from that point of time cause of action accrued. As noted above, the plaintiff still has the status of co-owner, thus law of limitation, otherwise cannot be applied against her. Moreover, repeated entries in the revenue record afforded fresh cause of action to the plaintiff and adverse entries in the revenue record, even if are allowed to remain unchallenged, do not necessarily extinguish the right of the party against whom such entry had been made. Every new entry in the record of right gives fresh cause of action to the plaintiff. This view has been affirmed by the apex Court in the judgment reported as Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284). In such like cases, the august Supreme Court of Pakistan in Ghulam Farid’s case (supra) concluded that any transaction which is the result of misrepresentation neither can be perpetuated nor protected on the ground of limitation, but whenever such transaction is assailed, the Court of law has to refuse to give effect to it, thus the suit cannot be declared to be barred by time.
9. The crux of the above discussion is that the learned Appellate Court below perfectly appreciated the available material per its pith and substance, who also applied the correct law on the subject in passing the impugned judgment/decree, which is neither tainted with misreading/non-reading of evidence, nor otherwise is also suffering from any jurisdictional defect calling for interference in exercise of powers vested under Section 115, CPC the scope whereof being narrower and restricted can only be exercised, if Court below committed grave miscarriage of justice, but obviously is not the case here. This Civil Revision having no merit is dismissed leaving the parties to bear their own costs.
(Y.A.) Civil Revision dismissed
0 Comments