2003 PLP 2594 (YLR)

Muhammad Saleh for Petitioners. Raja Abdul Razzaq for Respondents. Date of hearing: 21st May, 2003. This judgment will dispose of Civil Revision No.2073 of 1996 and Civil Revision No.2593 of 1996 as both the revision petitions are the result of litigation in between both the parties with regard to the same property and as the Additional District Judge modified the judgment of the trial Court in the suit brought by Mst. Nighat Iram Alam allowing 12-1/2 acres of land to the defendant Alam Khan.

2. The facts which have given rise to both the revision petitions are that initially Mst. Nighat Iram Alam filed a suit for declaration and permanent injunction with the averments that one Mst. Shakila Begum had sold the agricultural land measuring 1394 Kanals, 7 Marlas in Ferozewala District Sheikhupura to Shah Nazir Alam who is the deceased husband of the plaintiff through a registered sale-deed dated 21-8-1963 on the basis of which Mutation No.197 was attested on 17-9-1963. It was further alleged that another piece of land measuring 74 Kanals, 12 Marlas was transferred by the above said Mst. Shakila Begum in favour of her deceased husband through a registered ' sale-deed dated 19-3-1965 vide Mutation No.418, dated 31-9-1965. The husband of the plaintiff Mst. Nighat Iram Alam allegedly died on 27-6-1969. The deceased was having two wives. He left behind the present plaintiff (issueless) and three sons from his other wife. The mutation of inheritance of the deceased was attested vide Mutation No.1335 dated 28-6-1969 and finally attested on 16-7-1969. In the month of March, 1970 the Revenue Officer applied to the Collector for review of the Mutation No.197 dated 17-9-1963 as above said which permission was allowed that the mutation of sale by Mst. Shakila Begum in favour of Shah Nazir Alam was violative of the provisions of M.L.R. No.64 as such was declared void. In view of the reviewing and cancellation of above mentioned mutation Mst. Shakila Begum entered into a fresh transaction of sale of the same property in favour of the plaintiff for land measuring 1353 Kanals, 6 Marlas. It was alleged that the defendant Alam Khan without her notice and without any legal basis got Mutation No. 1339 dated 9-7-1969 with regard to land in suit as Hiba, which was neither made by the plaintiff in his favour nor any part of possession of the property was delivered, to him in consequence of the alleged gift in his favour. The plaintiff Mst. Nighat Iram Alam contested the matter but 'however the Board of Revenue decided against her and then she filed the present suit. It was prayed that as a fresh transaction of sale had been made in her favour by Mst. Shakila through Mutation No. 159 dated 22-5-1970, the Mutation No. 1339 dated 9-7-1969 on the basis of some gift be declared illegal. The defendant Alam Khan contested the suit on various grounds including the ground that Mutation No. 197 dated 17-9-1963 was got cancelled only to deprive him, as such mere entry of Mutation No.159 dated 22-5-1970 was ineffective against his rights. The trial Court on the pleadings of the parties framed certain issues and after recording evidence of the parties dismissed the suit of Mst. Nighat Iram Alam. Mst. Nighat Iram Alam filed an appeal from where it was disposed of as abovesaid. Both the parties to the litigation felt dissatisfied and filed separate revision petitions to challenge it.

3. Learned counsel for both the parties have been heard and the entire record with their assistance has been perused.

4. The facts as above mentioned reveal that the case of Mst. Nighat Iram Alam before the trial Court was that the Mutation No.197 dated 17-9-1963 was declared void being violative of M.L. Regulation, hence a fresh sale was got in her favour vide Mutation No.159 dated 22-5-1970, therefore, the Mutation No.1339 dated 9-7-1969 is of no consequence. Whereas the case of the defendant is that by virtue of a family partition, he was given the suit-land by way of Will/gift and possession of the property was also delivered to him, hence the cancellation of Mutation No. 197 dated 17,9-1963 was collusive between her and Mst. Shakila Begum and was to deprive him of his gift. It was also that the family settlement which had been effected on 30-6-1969 was valid and in force. Analysing it, it was for the defendant Alam Khan to prove that the cancellation of Mutation No.197 dated 17-9-1963 was fraudulent and collusive. No material in this regard has been made available. The defendant being a party to family settlement is not explainable on record. Nothing has also been made available that Mutation No.159 was procured through fraud and was only with the intention to deprive Alam Khan from the property given to him as the result of family settlement. There is nothing on record that even after entry of Mutation No.159 dated 22-5-1970 any gift was made by the plaintiff. The possession of the property is admitted to be with the plaintiff. No gift without delivery of possession is complete. Nothing is available that Shah Nazir Alam the deceased husband of the plaintiff intended to give the suit property by way of Will. In this eventuality the case put forth by the defendant Alam Khan does not find support from the record. Otherwise the plaintiff Mst. Nighat Begum is the purchaser from Mst. Shakila Begum vide Mutation No.159 dated 22-5-1970 and her suit merits to be decreed in her favour. In view of above both the Courts below have misread and non-read the evidence on record as such the judgments of both the Courts below are not in consonance with the facts and law and are liable to be set aside and are set aside. Accordingly Criminal Revision No.2593 of 1996 filed by Mst. Nighat Iram Alam against Alam Khan is allowed and Criminal Revision No. 2073 filed by Alam Khan against Mst. Nighat Iram Alam is hereby dismissed. The result of which is that the suit filed by Mst. Nighat Iram Alam before the Civil Court is decreed. M.H./A-861/L Order accordingly,