2022 PLP 433 (CLC)

MUHAMMAD AMEER BHATTI, CJ.

This revision petition is directed against the judgment dated 11.07.2012, whereby the learned District Judge, Bhakkar, while accepting the appeal, preferred by the respondents, set-aside the judgment and decree dated 09.06.2010 of the learned trial Court dismissing petitioners' suit.

2. Brief facts significant to the case are that the property-in-dispute, originally owned by Zamma , the predecessor-in-interest of both the parties, was got transferred by Mst. Khanai, his daughter, through gift mutation No.42 dated 23.12.1993. The deceased respondent-plaintiff namely Mst. Shahzado represented by her legal heirs, who was also the daughter of said Zamma, after his death, instituted a declaratory suit seeking to annul the said gift mutation being obtained by practicing fraud and misrepresentation. The petitioners-defendants filed written statement specifically alleging therein that the property-land was transferred by the owner in lieu of the services she (Mst. Khanai) rendered to her father through gift mutation, which was sanctioned with consent of the original owner and there was no fraud and misrepresentation. Divergent pleadings of the parties persuaded the learned trial Court to frame the following issues:-

1. Whether the plaintiff is entitled to the decree for declaration as prayed for? OPP

2. Whether the mutation No.42 dated 23.12.1993 is against law and facts, without notice, without hearing, without authority and consideration, based on fraud and ineffective and inoperative upon the rights of the plaintiff? OPP

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

4. Whether the plaintiff has no cause of action to file this suit? OPD

5. Whether the suit is time barred? OPD

6. Whether the suit is false, frivolous and the defendants are entitled to recover special costs under section 35-A, C.P.C.? OPD 1-2

7. Relief. The learned trial Court after recording evidence of both the parties dismissed the respondents' suit vide judgment and decree dated 09.06.2010, who preferred an appeal, which was accepted by the learned District Judge, Bhakkar, vide his judgment and decree dated 11.07.2012, as a result whereof the suit of the plaintiffs-respondents was decreed to the extent of their shares; hence, this revision petition.

3. I have heard the learned counsel for the parties and gone through record of the case.

4. Although the learned District Judge while accepting appeal of the respondents-plaintiffs after duly examining-discussing the evidence led by the parties has rightly concluded that the respondents-plaintiffs have been deprived of their legitimate rights of inheritance through concealed transaction of purported gift, yet, I deem it appropriate to add that while filing the written statement the petitioners-defendants did not specify the date, time and place with regard to performance/fulfillment of ingredients of a valid gift, i.e. offer, acceptance and handing-over possession; it was asserted explicitly that the land-in-dispute was transferred by the owner with his free will and consent through gift and possession was handed over. This was a vague assertion without any specification regarding offer, acceptance and handing-over possession with date, time and place and evidence in this regard is also not confidence inspiring. The law stipulates three essential requirements for transaction of a valid gift in one sitting. It is also settled law that any transaction of the land/property through gift which is alleged to have been made by practicing fraud and misrepresentation, the burden to prove its authenticity and validity always lies on the beneficiary who is required to produce the direct confidence inspiring evidence relating to fulfillment of basic ingredients of valid transaction of gift, i.e., offer, acceptance and delivery of possession. If anyone of these ingredients is found missing, it would be fatal for the claimant as held by honourable Supreme Court in a case reported as Peer Baksh through LTs and others v. Mst. Khanzadi and others (2016 SCMR 1417), relevant portion thereof is reproduced hereunder:- "The petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf. This is fatal to the petitioner's plea."

5. The case of the petitioners-defendants is only based on gift mutation which is silent with regard to its ingredients; it also does not have any information about date, time and place. Before sanctioning of mutation Patwari has to incorporate desire of the parties as a report in the Roznamcha Waqiati. It signifies that the parties have made their offer, acceptance and handing-over the possession before the Patwari about completion/fulfillment of transaction along with all particulars narrating the detail of transaction in the Roznamcha. However, if the parties had made it at any other place, on different time and date, then all the particulars of that transaction should, on their narration, be incorporated in the Roznamcha Waqiati. The Punjab Land Revenue Act, 1967, hereinafter to be referred as "the Act", which was enacted to consolidate and amend the law relating to the making and maintenance of records-of-rights, the assessment and collection of land-revenue, the appointment and functions of Revenue Officers and other matters connected with the Land Revenue Administration in Province of the Punjab, laid down a comprehensive procedure for preparation of Record of Rights and Periodical Records. It is necessary and incumbent upon a person who by any mean including of gift, acquires any right in an estate as a land-owner to mandatorily report his acquisition of right to the Patwari of the estate within three months from the date of such acquisition who is bound to record the very fact in the Roznamcha as maintained by him in accordance with The Punjab Land Revenue Rules, 1968. For the sake of ready reference relevant provision is reproduced hereunder:- S.

42. Making of that part of periodical records which relates to land-owners.

(1) Subject to the other provisions of this Chapter, a person] acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall- (a) record such report in the Roznamacha to be maintained in the prescribed manner; (b) furnish a copy of the report so recorded, free of cost, to the person making the report; and (c) send a copy of the report, within a week of its receipt by him, to the office of the Union Administration] within which the estate is situated. (2) If the person acquiring the right is a minor or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari. (3) The Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made. (4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed. (5) If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2), the person making the report may make the report, in writing, to the Revenue Officer concerned and the Union Nazim of the Union in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations. (6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and, shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (7) (8) (9) (10) (11) Mere perusal of Section 42 ibid shows that it is obligatory upon a person who acquires a right in the immovable property within an estate as a landowner by way of gift or otherwise to report this factum to the concerned Patwari within the time period of three months from the acquisition of such right, who is bound under the law to record the same in Roznamcha Waqiati. The importance and significance of entry in the Roznamcha Waqiati is clearly palpable from the fact that in the scheme of Revenue Administration under the Act, the factum of having acquired any interest as landowner in the land of a particular estate is firstly recorded in the Roznamcha. The culmination point in the form of sanctioned mutation is always an outcome of the initial entry duly recorded in the Roznamcha Waqiati by the Patwari and there is no other option except to follow the procedure provided under the Land Revenue Act, 1967. Rule 34 of West Pakistan Land Revenue Rules also stipulates that Patwari is to maintain Roznamcha Waqiati (Daily Diary) under clause (a) of subsection (1) of section 42, in accordance with the Form XX, wherein five columns are provided to specifically state serial number, date, heading of entry, occurrence and remarks. In order to further ensure correctness and authenticity of the information recorded in the said Diary, Sub-Rule (3) also made it obligatory that the Patwari shall prefix to every entry, in the Roznamcha a separate serial number, in large and clear figures. Every entry shall be closed by an asterisk, and no blank line shall be left between two consecutive entries. It also stipulates that such orders and instructions as relate to rules of practice, shall be entered in red ink and the date of each day's entries shall be given according to the official calendar. The signification of entry in Roznamcha Waqiati of Patwari can be well understood from the Judgment of Honorable Supreme Court in the case Ghulam Mustafa through LRs. and others v. Muhammad Yahya and others (2013 SCMR 684) wherein the importance of Rozmancha Waqiati of Patwari is highlighted to prove the factum of possession of land. The Court ruled as under:- On his own showing Fateh Muhammad was in possession of the suit land in his capacity as a lessee but the change of his status into an owner could neither be proved by any document nor it is so reflected in the revenue record i.e. Roznamcha Waqiati of Patwari. Similarly the importance of Roznamcha Waqiati stood further established from the esteemed judgment of the Honorable Supreme Court Zulfiqar and others v. Shahadat Khan (PLD 2007 Supreme Court 582) wherein it was held as follows:- "From perusal of the record, we find that Roznamcha Waqiati was not produced instead reliance was placed on a note incorporated on the mutation sheet. The aforesaid not was not even primary evidence of the contents of Roznamcha Waqiati. We have also noticed that neither Roznamcha Waqiate was produced nor Muhammad Azeem, the vendor was examined. The reference to Roznamcha Waqiati on the mutation sheet did not constitute any evidence at all of the sale." The apex Court further held:-

16. As noted above, copy of the Roznamcha Waqiati was neither produced nor the vendor or the Parwari was examined. Therefore, the entry in the mutations referring to the report recorded in Roznamcha Waqiati was not the primary evidence. Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under section 42 of the West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. The importance of Roznamcha is further established and highlighted from the recent judgment of this Court in the case Sheikh Rauf Ahmad v. Dr. Nazir Saeed, Member (Judicial-V), Board of Revenue (2020 YLR Note 52), wherein it was also laid down as under:- "From the perusal of the aforesaid provisions it is very much clear that any person acquiring any right as a purchaser, inheritor, donee, mortgagee or otherwise in any estate, the Patwari shall record such report in Roznamcha to be maintained in the prescribed manner furnished copy of report within a week to concerned Town Committee or Union Council and subsection (3) of section 42, the Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2) of section 42 and shall also make an entry in the Roznamcha and in the register of mutations regarding the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made." In light of the above discussion, it can be safely held that Roznamcha Waqiati is the first document wherein the fact of acquiring any right and ownership in the immovable property through any mode, including of gift, is ought to be recorded as per statutory command of Section 42 of the Act and Rule 34 of the Rules respectively. If a person claims to have acquired ownership through gift in a land of an estate, then he is required to prove that his/her claim was duly brought before the Patwari to be recorded in the Roznamcha for subsequent entry of mutation and sanctioning thereof and then its ultimate incorporation in the Periodical Records of such an estate, failure of which seriously jeopardizes his/her claim and makes it non est. The petitioners-defendants did not plead with particulars relating to performance of gift in their written statement which is sine qua non and silence of record about performance of three essential ingredients of gift besides omission of its date, time and place, makes the transaction non est. Even otherwise missing of all these essential ingredients from written statement along with date, time and place of its performance was enough to annul the transaction/mutation as it is settled law that no party to lis be allowed to lead evidence beyond pleadings nor could it be read in evidence although in the present case no such evidence was produced and available on record to prove that the essential ingredients for a valid gift were performed/fulfilled. This Court specifically inquired from the learned counsel for the petitioners/defendants that the Patwari initiated the process/sanctioning of gift mutation on desire of the parties, which fact according to the revenue laws is necessarily to be recorded in Roznamcha Waqiati and on the basis of that entry he initiated the process of sanctioning of mutation by incorporating the relevant abstract of their statements recorded in Roznamcha Waqiati in column No.14 of mutation besides entering the other particulars in other columns of the mutation form adding the other particulars relating to land and its ownership, hence that Roznamcha Waqiati was the most important evidence/document to find-out particulars of performance of valid gift to transfer the land on the terms settled between the parties which was not produced by the beneficiaries for reasons best known to them. Oral evidence is also silent with regard to performance of offer, acceptance and delivery of possession hence he could not refer any evidence in this regard. It is also noticed that the sanctioning officer at the time of sanctioning of mutation did not mention regarding performance of the necessary ingredients either before him or narrated by the parties before him about completion of ingredients of gift at any other place, time and date except confirming of handing-over possession of the land-in-dispute without any particular; meaning thereby that the transaction might have been materialized earlier either before the Patwari when he penned statements of the parties in the Roznamcha Waqiati, which was not produced and withheld by the petitioners-defendants or anywhere else but no evidence in this regard is available on record. In the recent dictum laid down by the apex Court reported in Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), it has been held that, "The burden of proof to establish the gifts was on the beneficiaries of the gifts, not the donees. However, two of the donees, namely, Mohammad Akram and Mst. Naik Bakht did not testify and only Atta Mohammad testified, but he did not testify as an attorney of the other two donees. The material particulars of the gifts, including when and where the lands were gifted, accepted and possession of the lands delivered was not mentioned in the gift mutations, in the roznamcha waqiati (daily diary register), in the written statement or any other document. The burden to prove the gifts was on the petitioners who failed to discharge such burden. The gifts were also extremely suspect, having purportedly been made by an extremely old gentleman of over ninety years of age who was in poor health and also on whose state of mind serious questions had been raised. It is also inexplicable why he would want to deprive five of his daughters from his inheritance."

6. It is also settled law, as per dictum laid down by Hon'ble Supreme Court in a case reported as "Muhammad Shafi and others v. Sultan Mahmood and others" (2010 SCMR 827) and "Muhammad Hassan v. Khawaja Khalil-ur-Rehman" (2007 SCMR 576) wherein it has been held: "In case of divergent findings of the two Courts below, the High Court will have to give due attention to the findings of the Appellate Court unless it suffers from grave irregularity or the same are perverse or the reasons given by the Appellate Court are not sustainable. Moreover, that was a revision petition before it which is a discretionary jurisdiction and the exercise undertaken by the High Court meets the said requirement."

7. In view of the guidelines given by apex Court in cited case, I have minutely examined the evidence besides contents of the written statement and do not find anything mentioned by the petitioners-defendants in the written statements or elaborated through evidence, which has been claimed to have been misread and misconstrued, necessary to prove the essential ingredients of a purported gift, therefore, the claim of the petitioners before this Court for interference in the judgment of the learned first appellate Court is not justified. The learned first Appellate Court has neither committed any illegality or irregularity nor the findings are perverse and reasons recorded therein are in conformity with law as well as evidence available on record, therefore, I have no option except to decline exercise of the power provided under Section 115, C.P.C. Resultantly, this petition has no merits and dismissed with no order as to costs. MH/K-1/L Revision dismissed.