PLJ 2023 Lahore (Note) 124
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD YOUNAS--Petitioner
versus
MUHAMMAD ASHRAF and 3 others--Respondents
C.R. No. 259-D of 2020, heard on 1.6.2023.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration--Decreed--Appeal--Dismissed--Gift mutation--Absence of material information--Validity of gift mutation--Revenue officers and attesting witnesses of gift were not produced in evidence by petitioner--Material flaw--Concurrent findings--Challenge to--Detail declaration of gift was not maintained in written statement of petitioner--Petitioner did not mention detail declaration of gift mutation in his written statement--It was primary duty of petitioner to prove with elaborate specifications--Non-proving of asserted stance of gift transaction through corroborative, credible & trustworthy evidence is considered a material flaw which dismantles very foundation of stance of petitioner--Neither attesting witnesses of gift mutation in question nor Revenue Officers who entered sanctioned said gift mutation were produced in evidence to prove alleged gift mutation--It is mandatory for petitioner to produce requisite number of witnesses of very gift transaction as well as that of gift mutation but petitioner has failed to produce witnesses of gift mutation-- Non-production of required witnesses is blatant non-compliance of mandatory provisions of law which is considered fatal for case of petitioner--The concurrent findings of fact are against petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction--Revision petition dismissed.
[Para 5, 7 & 9] A, B, D, E & F
2016 SCMR 1417, 2021 SCMR 743, PLD 2022 SC 85, 2016 SCMR 662, PLD 2015 SC 187, 2015 SCMR 1044 & 2014 SCMR 1469 ref.
Muhammadan Law--
----Para 149 & 150--Ingredients of valid gift--Three important prerequisites are described for a valid gift such as explicit offer of gift by donor, acceptance of gift by donee and voluntary delivery of possession to donee under very gift transaction. [Para 6] C
Ch. Pervaiz Akhtar Gujjar, Advocate for Petitioner.
Mian Adil Mushtaq and Ch. Imran Khalid Amartasari, Advocates for Respondent No. 2.
Date of hearing: 1.6.2023.
Judgment
Through this civil revision, the petitioner has challenged the validity of judgment and decree dated 30.06.2018 passed by the learned Civil Judge, Lodhran who decreed the suit for declaration filed by Respondent No. 2 and judgment and decree dated 28.11.2019 passed by the learned Additional District Judge, Lodhran who dismissed the appeal of the petitioner.
2. Brief facts of the case are that Respondent No. 2/ plaintiff filed a suit for declaration against the petitioner and Respondents No. 1,3 & 4/ defendants contending therein that she is owner of land measuring 18-Kanals 06-Marlas (1/7th share) fully described in the headnote of the plaint and challenged the validity of alleged gift Mutation No. 1604 dated 29.07.1996 which was executed by the predecessor-in-interest of the parties namely Muhammad Ishaq in favour of the petitioner and Respondent No. 1/Defendants No. 1 & 2 (sons) and subsequent transaction are against the law, fact, illegal and based on fraud. Petitioner/ Defendant No. 1 filed contesting written statement controverted the stance of the respondent/ plaintiff on factual and legal parlances. Respondent No. 3/Defendant No. 3 submitted conceding written statement. Suit to the extent of Respondent No. 1/Defendant No. 2 was dismissed as withdrawn on the basis of compromise. Respondent No. 4/Defendant No. 4 proceeded against ex-parte. The learned trial Court framed issues, recorded pro and contra evidence of both the parties and vide judgment and decree dated 30.06.2018 decreed the suit for declaration filed by Respondent No. 2. The appeal of the petitioner was also dismissed by the learned appellate Court vide judgment and decree dated 28.11.2019. Hence, this civil revision.
3. I have heard the arguments of learned counsels for the parties at full length and gone through the record with their able assistance.
4. The main controversy is centered around Issues No. 1 to 3 which are as under:
“Whether the plaintiff is entitled to get a decree for declaration as prayed for?
OPP Whether the plaintiff is owner in possession of the property measuring 18 kanals and 16 marlas? OPP
Whether the impugned Mutation No. 1604 dated 29.02.1996 from the predecessor of the parties Muhammad Ishaq was sanctioned as Per law and is correct in the eye of law? OPP”
Kamal Din appeared as DW3 who in his cross-examination, deposed that:
جب انتقال درج ہوا اس روز ہمارے دستخط و انگوٹھے نہ ہوئے تھے۔۔۔۔۔۔۔ یونس اور اشرف لودھراں تحصیلدار کے روبرو پیش نہ ہوئے تھے۔ لودھرا ں رو برد پٹواری تحصیل دار بابا اسحاق کے کوئی بیانات نہ ہوئے تھے۔۔۔۔۔۔ میرے سامنے بابا اسحاق نے مدعاعلیم نمبر 3-4 مدعیہ کو زمین نہ دی تھی۔
Allah Rakha and Kamal Din DW2 & DW3 marginal witnesses of alleged mutation also failed to identify their signatures and thumb impressions on impugned mutation. Zulfiqar Patwari recorded his statement on 15.05.2018 but no rapt Roznamcha is available on record regarding impugned mutation which shows that no rapt Roznamcha qua impugned mutation was entered. DW3 also admitted that Muhammad Ishaq predecessor-in-interest of the parties was ill who was brought on donkey cart. On 30.03.2016, Respondent No. 1/Defendant No. 2 along with his counsel appeared and got recorded statement on Oath that he would pay Rs. 2,00,000/-to the plaintiff within two months and if he failed to pay the said amount then the plaintiff may receive the same through suit, in this regard, pronote was executed. For ready reference, statement and order dated 30.03.2016 is reproduced as under:-
منجانب مد عاعلیہ نمبر 2 وکالت نامہ را د ماجد نثار احمد ایڈووکیٹ حاضر ۔
مد عاعلیہ نمبر 2 اصالتا حاضر۔
مد عاعلیہ نمبر 2 بیان قلمبند کرانا چاہتا ھے ۔ بیان قلمبند ہووئے۔
بیان ازاں مد عاعلیہ نمبر 2 محمد اشرف۔
بر خلاف۔
بیان کیا کہ ہمراہ مدعیہ راضی نامہ ہو گیا ھے ۔ دولاکھ روپے اندر دو ماہ میں مدعیہ کو ادا کر دونگا۔ اگر ادا نہ کروں تو مدعیہ بذریعہ دعوی وصول کر سکتی ھے۔ اس ضمن میں پرونوٹ مارک A بحق مدعیہ تحریر ھے ۔ مدعیہ میری حد تک اپنادعوی واپس لینے کی پابند ھے ۔ سن کر درست تسلیم کیا۔
30.03.16 بیان ازاں مدعیہ آسیہ بی بی
برحلف۔
بیان کیا کہ بیان مدعا علیہ سن کیا ہے۔ درست تسلیم ہے۔ میں بیان بالا کی روشنی میں دعوی ھذا تا حد محمد اشرف مدعا علیہ نمبر 2 واپس لیتی ہوں۔
سن کر درست تسلیم کیا۔
30.03.2016/ORDER.
The statements of Defendant No. 2 and plaintiff are reconded above. Keeping in view the above statement of plaintiff, suit in hand is hereby dismissed as withdrawn to extent of Defendant No. 2. The parties will remain bound to their statements. Now the file be put up on the already fixed date i.e. 11.04.2016.
Announced: 30.03.2016. (Sumera Naz Malik)
Civil Judge Class-III,
Lahore.”
5. Admittedly, the gift mutation is at discord between the parties, as such it is mandatory for the beneficiary (petitioner/ Defendant No. 1) to describe meticulous details of day, date, time, venue, presence of witnesses as well as making of gift, offer and acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved affirmative and trustworthy through corroborative, evidence but the Petitioner/Defendant No. 1/ beneficiary did not mention the detail declaration of gift mutation in his written statement. It was the primary duty of the beneficiary i.e. petitioner/Defendant No. 1, to prove the above mentioned constituents with elaborate specifications but no such evidence is produced in this regard. The absence of above material information in the written statement renders the statement of the defence witnesses (DWs) beyond the scope of pleadings and same can validly be excluded from the judicial consideration. Thus, non-proving of the asserted stance of gift transaction through corroborative, credible and trustworthy evidence is considered a material flaw which dismantles the very foundation of the stance of the petitioner/Defendant No. 1. Reliance is placed on the cases titled as Peer Baksh through LRs and others vs. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others vs. Sakina Bibi and Others (2020 SCMR 1021), Atta Muhammad and others vs. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad vs. Ali Akbar and Others (2021 SCMR 743) and Faqir Ali and others vs. Sakina Bibi and others (PLD 2022 SC 85).
6. As per Para Nos. 149 and 150 of the Muhammadan Law three important prerequisites are described for a valid gift such as explicit offer of the gift by donor, acceptance of the gift by the donee and voluntary delivery of possession to the donee under the very gift transaction. The above ingredients are mandatory in nature and absence of proof of any ingredient whereof render the very gift transaction as invalid. Here, in this case the above said ingredients have neither been pleaded in the written statement nor proved by producing any witness which is considered a material flaw which dismantled the validity of the gift mutation. The Hon’ble Supreme Court of Pakistan in a judgment titled as Mst. Saadia vs Mst Gul Bibi (2016 SCMR 662) held as under:
14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donce) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift “offer”, “acceptance” and “delivery of possession”.
Reliance can also be placed on the cases titled as Allah Ditta and others vs. Mamak alias Muhammad Siddique and others (2017 SCMR 402), Naveed Akram and others vs. Muhammad Anwar (2019 SCMR 1095) and Muhammad Sarwar vs Mumtaz Bibi and others (2020 SCMR 276).
7. Even otherwise, neither the attesting witnesses of the gift mutation in question nor the Revenue Officers (Patwari and Tehsildar) who entered/sanctioned the said gift mutation were produced in evidence to prove the alleged gift mutation. As per Article 79 of the Qanun-e-Shahadat Order, 1984, it is mandatory for the beneficiary/petitioner to produce the requisite number of the witnesses of the very gift transaction as well as that of gift mutation but the petitioner has failed to produce the witnesses of the gift mutation. The non-production of the required witnesses is blatant non-compliance of the aforesaid mandatory provisions of law which is considered fatal for the case of the petitioner. Reliance is placed on the cases cited as Hafiz Tassadug Hussain vs. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another vs. Khuda, Bakhsh and other (PLD 2015 SC 187) and Farid Bakhsh vs. Jind Wadda and others (2015 SCMR 1044).
8. Petitioner/Defendant No. 1 neither produced in evidence the witnesses of gift mutation Patwari and Tehsildar who entered and sanctioned the impugned gift mutation nor any convincing reason has been furnished for non-producing them which amounts to withholding of the significant evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed against the petitioner, as such presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against him. Reliance is placed on the cases titled as Sughran Bibi vs. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir vs Mst. Shams Sultana and Others (2022 SCMR 309).
9. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum vs. Nazar Hussain and another (2014 SCMR 1469).
10. In view of above, this Civil Revision is hereby dismissed being devoid of any merits. No order as to Costs.
(Y.A.) Revision petition dismissed
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