2010 SCMR 1370 (PLP)

CH. IJAZ AHMED, J.

Necessary facts out of which present appeal arises are that appellants and respondents are the sons and daughters of Allandad Khan deceased who had purportedly gifted entire agricultural land in favour of his four sons, namely, Khaliqdad, Karamdad, Walidad and Haqdad vide Mutations No.1621 dated 16-9-1992 and No.1746 dated 15-12-1992. Respondent Nos.1 to 3 filed suit for declaration to the effect that appellants/defendants exploited the old age of Allandad and with fraud and mala fide intention, got transferred the suit land in their name by way of gift and respondents Nos.1 to 3 were deprived from their legal as well as Shari shares and predecessor in interest of the parties was to transfer the property in equal shares upon all the legal heirs. Respondent No.5/defendant has also interest as the plaintiffs/respondents Nos.1 to 3 but she did not join them, therefore, she has been arrayed as respondent No.5/defendant. Appellants Nos.1 to 3 and respondent No.5 filed written statement, controverting the allegations levelled in the plaint. Haqdad respondent No.4 did not file written statement. Out of the pleadings of the parties, the trial Court framed six issues. The learned trial Court, thereafter, recording the evidence of the parties and hearing the learned counsel, decreed the suit vide judgment and decree dated 11-2-2004. Appellants being aggrieved filed appeal before the Additional District Judge, Mianwali who accepted the same vide judgment and decree dated 12-2-2005. Respondents being aggrieved filed civil revision No.893 of 2005 which was accepted vide impugned judgment. Appellants being aggrieved filed C.P. No.610-L of 2006 which was fixed before this Court on 27-7-2007 and leave was granted in the following terms: "The learned counsel argued, inter alia, that while reversing the judgment of first appellate Court, the High Court had failed to consider the evidence of Abdullah Khan, Lambardar D.W.2 who was a material witness in the case. Reliance was placed on the cases of Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 and Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC

309. Leave to appeal is granted to consider the above and other submissions of the learned counsel."

2. Hence, this appeal.

3. Learned counsel for the appellants submits that learned High Court had erred in law to accept the revision petition without adverting to the statement of D.W.2 Abdullah Khan Lambardar who was the material witness in the case and also he is relative of both the parties. He further urges that Allandad/their father had gifted land in question to them through aforesaid mutations. Mutations were proved by the appellants by producing cogent evidence. This fact was not considered in its true perspective by the learned High Court. In support of his contention, he has relied upon Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235.

4. Learned counsel for the respondents has supported the impugned judgment.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. The learned trial Court after analyzing evidence on record on issues Nos.1 and 2 which are the material issues had given findings of fact consisting of paragraphs Nos.7 to 13 in the following terms:-- "In these circumstances, there exists possibility to presume that as a matter of fact the contesting defendant took the benefit of old age of their old father/a donor and he was enforced to deprive her daughters of their legal shares of inheritance without any fault on their part. So these issues are answered in positive.

6. The said findings were reversed by the first Appellate Court without meeting the reasoning of the trial Court as evident from findings rendered by the Additional District Judge vide its judgment dated 12-2-2005. The learned High Court had taken a lot of pain to examine the evidence on record in view of divergent views of the Courts below and rendered findings of fact by setting aside the judgment of the first appellate Court. The reasons mentioned in paras 6 to 8 of the impugned clearly depict that Allandad Khan was 90 years old and Mir Abdullah Khan stated that only at the time of his testimony he came to know that daughters of Allandad had been deprived of their shares, therefore, learned High Court was justified that his statement cannot be taken as proof that Allandad had made gift only in favour of his sons and not to his daughters. It is pertinent to mention here that there is no justification that real brother of the appellants namely Haqdad received less property than his brothers. To this extent there is no explanation available on record. This fact was duly considered by the learned High Court. These pieces of evidence were ignored by the first appellate Court while reversing the findings of fact recorded by the learned trial Court. It is no doubt that first Appellate Court had the same power as the trial Court while deciding the appeals under section 96 of CPC but he could only reverse findings by analyzing the evidence on record by pointing out any misreading or non-reading by the trial Court of appreciation was made by the trial Court in violation of settled principles of law or any provision of law. The judgment cited by the learned counsel in the case of Mst. Manzoor Mai v. Abdul Aziz Supra, in fact does not support the case of the appellants as is evident from following operative part of the cited judgment:-- "The Revenue Officer in open assembly and mutation was attested."

7. The mutations in question clearly depict that all the donees were not present at the time of sanctioning of mutations. It is settled law that it is the duty and obligation of the beneficiary to prove the mutations by producing evidence in accordance with the accepted principles and in terms of Qanun-e-Shahadat Order, 1984. Otherwise, it does not create any title. The judgment of the Lahore High Court is in consonance with the law laid down by this Court in various pronouncements according to which onus of proof of transaction embodies in mutation is essentially upon the beneficiary and onus to prove voluntary execution of gift upon beneficiary of gift as well as to establish that transaction was the result of conscious application of mind by donor and not under influence of fraud played with him. See Bridget Antony's case PLD 1953 PC 77; Ghulam Ali's case PLD 1990 SC 1; Mst. Hussain Jan's case PLD 1964 SC 173; Hakim Ali's case 1994 SCMR 193; Walayat's case 1994 MLD 1955; Muhammad Ali's case PLD 1993 Lah. 33; Haji Ghulam Ali's case PLD 1971 SC 376; Hakim Khan's case 1992 SCMR 1832; Mst. Nazeeran's case 1990 SCMR 400 and Mst. Noor Fatima's case 1990 SCMR 629.

8. For what has been discussed above, we see no merit in this appeal which is dismissed with no order as to costs. S.A.K./K-11/SC Appeal dismissed.