2006 PLP 935 (CLC)

PARVEZ AHMAD, J.

The petitioners through this revision petition have assailed the orders of the learned District Judge, Narowal dated 14-5-2002 by virtue of which the appeal filed by the present respondents was accepted and the suit of Mst. Nawab Bibi for declaration challenging the mutation of gift No.1040, dated 19-5-1957 was decreed in her favour.

2. The facts in brief are that Mst. Nawab Bibi claiming herself to be daughter of one Mamoon, who was also the predecessor-in-interest of the defendants in the civil suit brought a declaratory suit challenging the alleged mutation of gift No.1040, dated 19-5-1957 with the averments that she is the owner of the property and is in possession of the property as a co-sharer along with the defendants, who had been making payment of the share of produce to her till Kharif crop, 1977 and then at a later stage refused to make payment of share of produce and came up with a plea that the property stands gifted in their favour by her and it was alleged by her that she never made gift of this property in favour of the defendants. She is owner and is in possession of the property as a co-sharer, hence the declaratory decree be passed in her favour. Defendants Nos. 1, 2 and 5 submitted their written statement and contested the suit with the clear averments that it was the plaintiff who with her sweet will and discretion voluntarily made a gift of this property in favour of the defendants along with her other two sisters and mother. The trial Court on the divergent pleadings of the parties framed the following issues:-- (1) Whether the suit is barred by time? (2) Whether impugned Mutation No.1040, dated 19-5-1957 is illegal, void and inoperative on plaintiff's right? (3) Relief. The trial Court recorded the evidence of the parties whatever the parties wished to produce and then gave an opportunity of hearing, came to the conclusion that the suit of the plaintiff was barred by limitation, as such dismissed the suit vide judgment and decree dated 12-12-1984. The plaintiff/Mst. Nawab Bibi felt herself dissatisfied with the findings of the learned trial Court and filed an appeal, which was dealt with by the learned District Judge, Narowal and was accepted vide judgment and decree dated 14-5-2002. Resultantly, her suit for declaration was decreed in her favour. The defendants before the trial Court feeling themselves dissatisfied have filed the present revision petition.

3. I have heard the learned counsel for the parties and perused the material made available before this Court. The submission of the learned counsel for the petitioners 'is that Mst. Nawab Bibi along with her two sisters Mst. Aisha Bibi, Mst. Sardaran Bibi and their mother Mst. Karim Bibi did appear in person before the Revenue Officer and made a gift of this property along with them in favour of her two brothers and brother's son etc. It is further submitted that the mutation in question having been attested on 19-5-1957 and the suit filed by Mst. Nawab Bibi on 31-1-1978 was apparently barred by limitation.

4. On the other hand, learned counsel for the respondents submitted that when a fraud is practiced in getting the mutation attested particularly with regard to a female then no limitation is applicable. It is also submitted that it was for the petitioners/defendants to have proved the factum of gift, which was alleged by them to have been made by Mst. Nawab Bibi.

5. Analysing the submissions of the learned counsel for the parties and evidence produced by them before the trial Court, it is established that one of the defendants Chiragh Din appeared as D.W.1 whereas no other defendant presented himself to appear in the witness-box and to face the cross-examination. Chiragh Din made a statement only to the extent that the plaintiff Mst. Nawab Bibi along with her other sisters Mst. Sardaran Bibi and Mst. Aisha Bibi made a valid gift of the property in their favour and since the date of gift no share of produce was given to the plaintiff. This witness even did not bother to produce in evidence the Revenue Officer, Who had attested the mutation of alleged gift in their favour whereas on the other hand, the plaintiff apart from herself appearing as a witness, produced two independent witnesses Ghulam Hussain and Muhammad Anwar as P.Ws.1 and 2, who have in very clear terms stated that the defendants had been paying share of produce of land to her and 1-3/4 years prior to the recording of their statements they stopped making payment of share of produce to the plaintiff. The nutshell of the evidence of the parties that the plaintiff Mst. Nawab Bibi came to a Court of law with her clear submission that she along with the defendants is owner of the property, she is in possession of the property as a co-sharer whereas the actual possession of the property is with the defendants. The defendants have throughout been making payment of share of produce to her and now they have refused to make payment of share of produce. The parties are related to each other as brother and sisters and as brother's son and paternal-uncle. The plaintiff is a female "Pardanasheen" lady and in this eventuality she gave a specific date when she came to know of the fraud, as such the suit brought by her was within time. After having held the suit of the plaintiff to be within time it were the defendants/petitioners, who had taken the plea of a valid gift to have been made by her in their favour and it was for them to prove that there was a proposal for the gift from Mst. Nawab Bibi, which was accepted by them and the delivery of the possession of the property was transferred in their name in consequence of the above said proposal and acceptance of gift. There is nothing on record to prove, this fact. Even the mutation, Exh.P.1, the Revenue Officer did not record that Mst. Nawab Bibi ever offered to make a gift of the property in favour of the defendants, which was accepted by the defendants and then the possession of the property was .transferred consequently in favour of the defendants.

6. In view of the above, the judgment and decree passed by the learned District Judge, Narowal is in consonance with law. There is nothing on record that the Appellate Court has either misread the evidence or non-read the evidence produced by the parties. There is also D nothing that the Appellate Court exceeded the jurisdiction vested in it or failed to exercise the jurisdiction vested in it by law. There is no illegality or material irregularity established on record.

7. In view of the above discussion, the present revision petition is without substance and force, hence the same is dismissed accordingly. H.B.T./A-583/L Revision dismissed