2007 PLP 172 (CLC)

SYED ASGHAR HAIDER; J.--This petition is directed against the judgment, dated 5-12-2005 passed by the Additional District Judge, Sumandari affirming the judgment and decree dated 3-5-2005 passed by the Civil Judge, Sumandari whereby the suit of the petitioner/plaintiff for declaration and permanent injunction was dismissed.

2. The facts necessary for adjudication of the present petition are that Mst. Rashidan Begum filed a suit against the respondents challenging gift deed Mutation No.3009 dated 13-9-1986 pertaining to land measuring 25 Kanals, 2 Marlas located in Chak No.468/G.P. Tehsil and Sumandari District Faisalabad, whereby the real mother of the petitioner Mst. Ramzan Bibi had gifted the suit property to her real sons. According to the petitioner, the mutation and gift deed in question are a result of fraud and misrepresentation made inter se the respondents and the Revenue Authorities. The gift was made known at the time of "Chehlum of her mother who died on 28-1-2001, the suit was contested by the respondents who filed written statement, a number of preliminary objections were raised, .of the divergent pleadings of the parties, issues were framed, parties were put to trial and ultimately suit was dismissed. Aggrieved thereof, the petitioner filed an appeal which too was dismissed, hence the present petition.

3. The learned counsel for the petitioner contended that there are material illegalities and irregularities in the impugned judgment, there has been gross misreading and non-reading of evidence. He especially adverted to Issue No.2 which is reproduced for ready reference. Issue No.5 Whether the petitioner is owner of the suit-land along with the defendants and whether the mutation of Hiba No.3009 dated 13-9-1986 is the result of fraud, forgery and mis-presentation and as such ineffective upon the property rights of the plaintiffs? OPP According to the learned counsel, the gift mutation was not tenable because no possession as mandated by law was transferred, Mst. Ramzan Bibi was 100 years old, illiterate and suffering from acute illness, the whole structure and edifice of gift mutation has been built upon mis?representation and fraud.

4. The learned counsel for the respondents contended that the present argument was not the case of the petitioner at the time of trial, the ingredients of gift were never put into question, there is not a word to this effect in the written statement, the evidence tendered is neither creditworthy nor reliable, on the contrary, the evidence tendered by the respondents is confidence-inspiring.

5. I have heard the learned counsel for the parties and perused the impugned judgment.

6. The property in dispute belonged to one Ali Muhammad the common predecessor-in-interest of the parties. After his death, vide a Mutation No.1429 dated 30-6-1977, the land was mutated in favour of his widow Mst. Ramzan Bibi, Mst. Rashida Bibi, Mst. Hafizan Bibi and Mst. Hamidan Bibi along with his three sons Ghulam Rasool, Ghulam Ahmad and Ghulam Haider, of the sons, Ghulam Haider died issueless, his inheritance mutation was sanctioned in favour of all above said legal heirs. Later Mst. Hafizan Bibi gifted the property to her mother, Mst. Ramzan Bibi, she became owner of 25 Kanals, 2 Marlas of land, this land was later gifted to the respondents through Mutation No.3009 dated 13-9-1986 and has been challenged through this suit. The plaintiff/ petitioner in the plaint has alleged fraud, misrepresentation etc. qua respondents and revenue officials as a ground for seeking annulment of the mutation, the allegations qua ingredients of the gift viz. declaration, acceptance and transfer of possession have not been made the basis for challenge, Order VI, rule 4, C.P.C. mandates that plaintiff is bound to give the details of fraud etc. which are completely lacking in the present matter. Additionally, the respondents in order to establish their claim A have produced, cogent, tangible and credit-worthy evidence especially the evidence of the revenue officials, Tehsildar, Patwari and Patidar stand out, they have affirmed the gift mutation and also the presence of Mst. Ramzan Bibi and her intention of making the gift, there is preponderance of evidence in this context, the evidence tendered by the A petitioner is sketchy, non-confidence-inspiring. Evidence has been properly appraised by both Courts below, the evidence of D.W.1, D.W.2 and D.W.3 is independent and confidence-inspiring, collateral circumstances clearly prove that the deceased, Mst. Ramzan Bibi owned an obligation to the respondents for the love, care and affection, they provided to her in her twilight years, she was incapacitated, fighting disease and could hardly perform her natural functions. The record clearly reflects that there was clear rivalry between the petitioner and her brothers (respondents) and mother, the parties had also resorted to physical violence and police action, this contributed to disposition of mother in favour of the sons who had suffered at the hands of petitioner's husband.

7. In these circumstances, both Courts correctly appraised evidence and thereafter dismissed the suit. There is a preponderance of evidence in favour of the respondents, they have fully established their case no material illegality, irregularity, jurisdictional error or misreading or non-reading of evidence could be pointed out, there is a concurrent finding against the petitioner. Resultantly, this petition has no merits and is dismissed. No order as to costs. F.B./R-54/L???????????????????????????????????????????????????????????????????????????? Revision dismissed.