2017 PLP 41 (CLCN)

ATIR MAHMOOD, J.

Through this civil revision, the petitioner has called in question the legality of judgment and decree dated 26.11.2009 passed by learned Additional District Judge, Khanpur who dismissed appeal of the petitioner and upheld judgment and decree dated 25.04.2007 passed by learned Civil Judge Class-II, Khanpur whereby suit of the petitioner for administration of property and declaration was dismissed.

2. Brief facts of the case are that the petitioner filed a suit for declaration and administration of immovable property mentioned in headnote of the plaint. The averments contained in the plaint are that the gift mutation No.380 dated 30.11.1986 regarding property measuring 16 kanals located in Mauza Muhammad Khan, gift mutation No.1107 dated 07.12.1986 regarding property measuring 16 kanals located in Mauza Hasilpur and gift mutation No.1586 dated 30.11.1986 about property measuring 1 kanal 1 marla in Mauza Zahirpir, total property measuring 33 kanals 1 marla, are illegal, unlawful and ineffective upon the rights of the petitioner-plaintiff and revenue record is required to be corrected in favour of the plaintiff; that Nazir Ahmad predecessor-in-interest of the parties was the actual owner in possession of the suit property and he never alienated the same in favour of defendant No.1; that before his death, Nazir Ahmed was suffering from Throat Cancer, due to which he was always under a life threat and even unable to speak; that defendant No.1 fraudulently got transferred the suit property in his favour through alleged general attorney-defendant No.2 who appeared before the Revenue Officer on behalf of Nazir Ahmad; that the said proceedings were kept secret from the petitioner; that defendant No.1 continued to give respective share of produce to the petitioner until there arose dispute between the parties and the petitioner on approaching the revenue authorities came to know about the fraudulent alienation of the property.

3. The suit was contested by the respondents by filing written statement. Out of divergent pleadings of the parties, following issues were framed: "ISSUES

1. Whether the suit is not maintainable in its present form? OPD

2. Whether the suit is filed to harass the defendants and the same is liable to be dismissed with special costs of Rs.10,000/-? OPD

3. Whether the predecessor-in-interest of the parties Nazir Ahmad gifted suit property to the defendant No.1? OPD (amended on 29.06.2006)

4. Whether the predecessor-in-interest of the parties was not owner of the suit property at the time of his death? OPD

5. Whether initial produce was given to the plaintiff by the defendants? OPP (Amended on 29.06.2006)

6. Whether no ingredient of valid gift has been fulfilled? OPD

7. Whether all the proceedings of the alleged gift mutation No.380 dated 30.11.1986, mutation No.1107 dated 07.12.86 and mutation No.1580 dated 30.11.1986 are forged and fictitious one? OPP (amended on 29.06.2006) 7-A. Whether the alleged general power of attorney dated 07.09.1986 of Nazir Ahmad was obtained by defendant during his MARZ-UL-MOUT? OPP (framed on 15.11.2001).

8. Relief." Evidence led by the parties was recorded. Thereafter, learned trial court dismissed the suit of the petitioner vide judgment and decree dated 25.04.2007. Feeling aggrieved, the petitioner preferred appeal which also met with the same fate vide judgment and decree dated 26.11.2009 passed by learned lower appellate court. Hence this civil revision.

4. Learned counsel for the petitioner inter alia contends that the learned lower appellate court has failed to exercise jurisdiction vested in it under Order XLI, Rule 33 of C.P.C. rather it has acted illegally and unlawfully; that the impugned gift mutations were made through attorney Allah Ditta on the basis of general power of attorney but neither the name of the donee Muhammad Yousaf was specifically mentioned nor there was any mention of the specified property to be gifted away; that the impugned mutations are not sustainable in view of the law laid down in case reported as Mst. Shmal Begum v. Mst. Gulzar Begum (1994 SCMR 818); that the alleged donee being beneficiary was under obligation to prove the transactions in his favour but he failed to do so; that the defendant neither produced the concerned patwaries who entered the disputed mutation nor any revenue officer who attested the mutations nor any other official from the Revenue Department; that no copy of roznamcha waqiati could be brought on record by the defendants; that the respondents could not produce witnesses of alleged gift namely Siraj Ahmed and Allah Jiwaya and any witness of alleged mutations; that the alleged gift was oral one which could not be substantiated by the defendants through cogent evidence; that since the alleged gifts were aimed at to disinherit legal heirs, these were invalid as held in cases cited as 2002 SCMR 1938 and 2003 SCMR 1920; that the transactions of gifts are hit by doctrine of marz-ul-maut; that the petitioner is a lady, therefore, the learned courts below should have protected her right; that there is no limitation in cases of inheritance; that the issues were not properly framed; that the petitioner could not be non-suited due to mis-description of the property; that the defendants in para 13 of their written statement have evasively denied that the property in dispute were owned by Nazir Ahmed which amounts to admission on their part; that the suit for administration of property is maintainable under section 218, of the Succession Act, 1925; that the findings of learned courts below are against law and fact; that there are material illegalities and irregularities, misreading and non-reading of evidence in the impugned judgments and decrees, therefore, this civil revision be accepted, the impugned judgments and decrees be set aside and the suit of the petitioner be decreed as prayed for.

5. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees by submitting that the plaintiff failed to prove the factum of fraud and misrepresentation; that Nazir Ahmad, predecessor-in-interest of the parties remained alive for 5 to 7 months after the disputed mutation of tamleek, therefore, no question remains qua marz-ul-maut of Nazir Ahmed; that no specific objection was raised in the pleadings qua the personal sentiments of the deceased, therefore, at revisional stage, this objection can neither be agitated nor entertained; that the suit was barred by 10 years as no proof of payment of share of produce was established. He has relied upon the dictums laid down in cases reported as Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Muhammad Hanif through Legal Representatives v. Province of Punjab through District Collector Vehari and others (2007 CLC 1309), Munawar Hussain and 2 others v. Amanat Ali and 6 others (PLD 2007 Lahore 83), Muhammad Ibrahim (deceased) through Muhammad Fiaz Rasool and others v. Mst. Kausar Bibi and others (PLD 2013 Lah. 162) and Mrs. Kausar A. Ghaffar v. Government of the Punjab and others (2013 SCMR 99).

6. Learned counsel for respondents Nos.4, 6 to 8 submits that respondents Nos.4, 6 to 8 though have contested the suit of the petitioner-plaintiff before the learned courts below but now he has instructions not to contest this civil revision.

7. Despite repeated calls, none has put appearance on behalf of respondents Nos.2, 3 and 5, as such, they are proceeded against ex parte.

8. Arguments heard. Record perused.

9. The points for consideration before this Court are: (i) Whether or not Haji Nazir Ahmed made oral tamleek in favour of respondent-defendant No.1 Muhammad Yousaf. (ii) Whether or not defendant No.2 Allah Ditta was legally appointed general power of attorney to execute and attest the tamleek mutation in favour of respondent No.1. (iii) Whether the disputed mutations are not valid transactions and liable to be cancelled.

10. According to para 2 of the plaint, it was specifically asserted that the deceased father of the plaintiff Nazir Ahmed was suffering from Marz-ul-Maut as being a throat cancer patient and was even unable to speak. This fact was denied by the respondents by submitting that the deceased was hale and hearty at the time of execution of disputed tamleek and died about 4/5 months thereafter and no fraud and forgery was committed by defendant No.1. In this regard, issue No.7-A was framed which was decided by learned trial court holding that the plaintiff was required to prove the instant issue but she did not produce any confidence inspiring evidence. The petitioner while appearing as PW.1 deposed in her examination-in-chief that her father was suffering from throat cancer and was bed -ridden for the last 4/5 years prior to his death and he was unable to speak. In cross-examination, she denied suggestion that his father was healthy and was also able to speak. She also deposed that general power of attorney and mutations were result of collusion of the defendants. Being the beneficiary of the disputed power of attorney as well as tamleek mutations, the onus shifted to defendants to prove that power of attorney was duly executed by the deceased in favour of defendant No.2 to alienate the property through mutation.

11. Respondent No.1 Muhammad Yousaf while appearing as DW.1 deposed that the property was given to him through oral tamleek in presence of Allah Jiwaya, Saraj Ahmed and Allah Ditta at night time which he accepted and possession of the property was also taken over by him the next morning. He deposed that power of attorney was given to defendant Allah Ditta for attestation of mutation in his favour. In cross-examination, he admitted that his father died due to illness. He showed his ignorance as to whether his father died due to cancer or fever. He admitted that his father remained admitted in Bahawal Victoria Hospital, Bahawalpur for 20/25 days. He stated that power of attorney was prepared in Zila Kachery, Bahawalpur.

12. DW.2 Allah Ditta in whose favour the power of attorney was allegedly executed deposed that at the time of tamleek, Allah Jiwaya, Saraj Ahmed and he were present. He also deposed that on the basis of power of attorney, he got the mutation attested. The original power of attorney was not produced by this witness or by DW.1. This witness admitted that his father was suffering from cancer and that he knew that it was a fatal disease which may cause death. He stated that his father came to the courts independently and thereafter, he along with Allah Jiwaya and Siraj went to the courts and that Yousaf did not accompany them to the courts.

13. The statement of DW.2 is quite contradictory to that of DW.1 who stated that he along with Nazir Ahmed, Allah Ditta, Allah Jiwaya and Siraj Ahmed went to the courts for execution of power of attorney. There are also glaring contradictions in the statements of DW.1 and DW.2 qua execution of power of attorney. The original power of attorney was also not produced by the respondents nor any of the alleged witnesses, i.e. Allah Jiwaya and Siraj, could be produced by the defendants in evidence.

14. As discussed above, respondent-defendant No.1 showed his ignorance about nature of disease of his father whereas DW.2 admitted that his father was suffering from cancer and there was every apprehension of his death. This unequivocally and unambiguously suggests that father of the parties Nazir Ahmed was suffering from marz-ul-maut. This is unbelievable that a son, i.e. DW.1 Muhammad Yousaf, was unaware about dangerous and incurable disease of cancer of his father. Showing ignorance about cause of death of his father by DW.1 infers that he is suppressing the truth. It is further observed that if Nazir Ahmed was healthy to go to the courts for execution of general power of attorney then why he himself did not opt to appear before the Revenue Officers for attestation of mutation in favour of respondent No.1. In the circumstances, the findings of learned trial court as well as that of learned appellate court on this issue are clearly result of misreading and non-reading of evidence, therefore, these are not sustainable in the eye of law.

15. Now comes the question as to whether the predecessor-in-interest of parties validly gifted the disputed property to respondent No.1 and tamleek mutations were duly and lawfully executed and attested. In this regard, issues Nos.3 and 7 were framed which are interlinked. Onus to prove issue No.3 was upon respondents-defendants whereas onus to prove issue No.7 was placed upon petitioner. The petitioner while appearing as PW.1 denied the factum of tamleek as well as attestation of disputed mutations being result of fraud and forgery then the onus shifted to respondent No.1. Being the beneficiary of the alleged gift/tamleek, respondent No.1 was bound to produce cogent affirmative evidence. Allegedly, at the time of tamleek, Allah Ditta, Siraj Ahmed and Allah Jiwaya were present on the spot. Allah Ditta alleged power of attorney holder being defendant in the suit cannot be considered as an independent witness and the allegation of collusion was to be rebutted by the defendants by production of evidence available to them but they could not produce Allah Jiwaya and Siraj Ahmed who could only be considered as independent witnesses in the given circumstances. Neither the said two persons appeared in the witness box nor any justification/explanation could be given for their non-production. Even respondents Nos.1 and 2 while appearing as DW.1 and DW.2 did not utter a single word about the date as to when the said tamleek was made. It is also noted that none of the defendant witnesses asserted the place of alleged tamleek during their examination-in-chief but in cross-examination, versions of DW.1 and DW.2 regarding this aspect are quite different from each other as DW.1 stated that tamleek was made in the courtyard of the house whereas DW.2 stated that tamleek was made in the house of deceased where he used to sleep. In view of the contradictory versions of DW.1 and DW.2 as well as withholding of available evidence, i.e. Allah Jiwaya and Siraj Ahmed, there remains no doubt that the defendants failed to prove the factum of tamleek as well. Therefore findings of both the learned courts below on issues Nos.3 and 7 are also not sustainable in the eye of law and are, therefore, reversed. In view of findings on issues Nos.3, 7 and 7-A, there is no need to dilate upon other issues.

16. In view of the above, this civil revision is allowed, the impugned judgments and decrees passed by learned courts below are set aside and the suit of the petitioner-plaintiff is decreed as prayed for. SL/A-52/L Petition allowed.