2006 PLP 813 (MLD)

JAWWAD S. KHAWAJA, J.

Abdul Aziz petitioner/plaintiff impugns the appellate decree dated 30-6-1998 whereby the decree of the learned trial Court dated 8-3-1993 was set aside and a declaratory suit filed by the petitioner/plaintiff was dismissed. Although the record of this case is voluminous, the facts necessary for its disposal are relatively straightforward.

2. The parties to this petition are the lineal descendants of one Barkat Ali who died in 1953. The said Barkat Ali, in all, had six sons two of whom, namely, Ahmed Hayat, and Fateh Muhammad were from one wife while the remaining four, namely, Bashir Ahmad, Nazir Ahmad, Muhammad Nawaz Khan and Nasrullah Khan were from his second wife.

3. The sons from the first wife, namely Ahmad Hayat and Fateh Muhammad predeceased Barkat Ali. The petitioner Abdul Aziz (now represented by his L.Rs.) is the son of Ahmad Hayat, Fateh Muhammad, the other predeceased son, was survived by a son, namely, Muhammad Sarwar.

4. The aforesaid Barkat Ali was owner of 225 Kanals of land in Mauza Khorota, Tehsil and District Sialkot. The case of the - petitioner/plaintiff is that Barkat Ali made an oral gift of the suit-land in favour of his four surviving sons and the two grandsons, namely, Abdul Aziz (petitioner) and Muhammad Sarwar and, as a result, the aforesaid land was transferred to the said six persons in equal shares and they thereafter are in cultivating possession of their respective 1 /6th shares in the suit-land.

5. The suit was resisted only by the L.Rs. of Bashir Ahmad and Nazir Ahmad (respondents). At this juncture, it is useful to note that Muhammad Nawaz Khan and Nasrullah Khan, the other two surviving sons of Barkat Ali, conceded the claim of the petitioner/plaintiff in an earlier suit and are not, therefore, parties in the present litigation. The respondents/defendants denied that any gift had been made by Barkat Ali as alleged in the plaint. The issue, therefore, in contention between the parties, is only as to whether such gift had been made or not.

6. To support his case, the petitioner/plaintiff produced Mutation No.315 (Exh. P-1) recorded in the register of mutations on 20-12-1940 but not sanctioned. It does, however, contain the noting in Column 12 that it is based on an oral gift. The last column of Exh. P-1 indicates the signatures of the patwari and the Girdawar.

7. Exh.P-1 is followed by the succeeding jamabandi (Exh.P-7) for the year 1944-45. In this jamabandi, all six doness have been shown in separate possession of 1/6th share each in the land owned by Barkat Ali. Their status, however, is given as ghair dakheel kar. ExhP-7 is followed by the jamabandi (Exh.P-3) for the years 1953-54 which does not show any change in the status of the six doness mentioned above.

8. Barkat Ali is stated to have died in 1953. The subsequent jamabandi (Exh. P-11) for the year 1957-58 shows the four surviving sons of Barkat Ali as owners of the land while indicating the status of the petitioner/plaintiff as tenant. The witnesses produced by the petitioner/plaintiff include Siraj-ud-Din (P.W.2) who was a retired Patwari. He deposed that the mutation (Exh.P-1) was in the handwriting of Sardari Lal, Patwari, who was the Halga Patwari and that he could identify his handwriting because they were patwaris from the same Tehsil. He also deposed that Sardaril Lal had preceded him as Patwari. Abdul Ghani, retired Patwari, was examined as P.W.4. He testified that three separate khata numbers were prepared in the name of the petitioner in respect of land which he was cultivating. In cross-examination, he stated that the khatas were prepared with the concurrence of the parties.

9. Ali Hassan (P.W.5), who was next examined by the petitioner, is an important witness. At the time of recording his testimony he was 80 years old, and was the Lamberdar of the village. He deposed that he knew Barkat Ali and also that in his presence Barkat Ali had given the property to his four surviving sons and two grandsons, namely, Muhammad Sarwar and the petitioner Abdul Aziz. As to the mutation, he testified that it had been recorded by Sardari Lai, Patwari, and in accordance with the mutation, the learned was divided between the six persons who since then are in separate possession of their respective shares. Most importantly, however, he deposed that the Patwari had recorded the mutation in his presence where Barkat Ali and two or three others were also present. By way of explanation he stated that the sanction of the mutation was not obtained because it would have affected the status of Barkat Ali as sufaidposh.

10. It was argued by learned counsel for the petitioner that the recording of the mutation (Exh.P-1) followed by delivery of possession of the land described therein in equal shares between the six donees coupled with the testimony of the P.Ws. discussed above, was itself sufficient to establish that a complete and valid gift had been made by Barkat Ali in favour of his four surviving sons and two grandsons. Additionally, it was pointed out that two of the surviving sons of Barkat. Ali, namely, Muhammad Nawaz Khan and Nasrullah Khan had acknowledged the claim of the petitioner/plaintiff. This was a material circumstance as it constituted an admission on the part of the said persons against their own interest and thus provided strong proof in support of the petitioner's claim.

11. It is on account of the above circumstances that the learned trial Court decreed the suit of the petitioner/plaintiff even though the mutation (Exh.P.1) had not been sanctioned. The learned appellate Court has reversed the findings of the learned trial Court for reasons which, as discussed below, are not legally tenable.

12. The learned appellate Court has observed, firstly, that at the time of the gift the petitioner/plaintiff was a minor. This is a misreading of the record The petitioner's father Ahmad Hayat died in 1918 and according to his testimony, he was two to three years old when his father died. This would mean that at the time of the recording of the mutation on 20-12-1940 the petitioner was approximately 25 years old. In any event, it was not necessary for the petitioner to be of the age of majority in order to be a donee of a gift from his grandfather.

13. The learned appellate Court has also held that the want of sanction by the Revenue Officer rendered the mutation useless. This finding is also devoid of merit. In the case of an oral gift, the gift takes effect when made regardless of the date on which a mutation may subsequently be sanctioned. The validity of an oral gift is not affected even where a mutation is not sanctioned at all. The learned appellate Court, in effect, has proceeded on the erroneous premises that the gift could only have been proved if the mutation (Exh.P.1) had been sanctioned. This premise being without legal basis cannot be sustained.

14. The learned appellate Court has also misread and discarded the testimony of Siraj-ud-Din (P.W.2). P.W.2 has been discredited on the ground that he had admitted he never worked with Sardari Lal, Patwari, and he, therefore, was not qualified to identify the handwriting of Sardari Lal. As noted above, P.W.2 has, in clear terms, deposed that he and Sardari Lal were working together in the same Tehsil and he was, C therefore, able to identify the handwriting of Sardari Lal. He otherwise was also qualified to identify the handwriting of Sardari Lal in view of the fact that he succeeded Sardari Lal as Halqa Patwari. The appellate Court has, therefore, wrongly disregarded the testimony of P.W.2. Here it may also be noted that the recording of the mutation by Sardari Lal, Patwari, in the presence of Barkat Ali and others, has been duly proved by Ali Hassan Lamberdar (P.W.5) whose testimony, on this score, has not been undermined in cross-examination.

15. Even the testimony of Ali Hassan (P.W.5) has been misread by the appellate Court. P.W.5 did not, at any point, state that the mutation was useless as has been noted by the learned appellate Court. His testimony is unambiguous on the point that Barkat Ali had given his land to his four surviving sons and two grandsons.

16. The testimony, coming from an independent and credible witness, has been brushed aside by the learned appellate Court on spacious grounds such, as his failure to thumb-mark the mutation (Exh.P.1). It may be noted here that there was no requirement for the thumb-mark of P.W.5 at the time the mutation was recorded by the Patwari. In any event, the absence of his thumb-impression on the mutation does not detract from his testimony which is otherwise credible. Likewise, the disregard of the testimony of P.W.5 on the ground that the said witness was not aware of the exact nature of the alienation by Barkat Ali, is unwarranted. The witness very truthfully stated that he was not aware if the transfer made by Barkat Ali in favour of the six persons, was by way of sale or was the without consideration.

17. P.W.5, namely, Ali Hassna, Lamberdar, and the petitioner/plaintiff, who appeared as P.W.6, have both stated that Barkat Ali enjoyed the status of sufaidposh. By way of explanation, they have testified that the gift mutation was not pursued for sanction by Barkat Ali as it would have adversely affected this status. From these circumstances the learned appellate Court has concluded that the gift had not been completed. This conclusion is unfounded in the light of the evidence discussed above. The very fact that the gift was recorded coupled with the material fact that the six donees took possession of their separate portions as reflected in the jamabandis (Exh.P.7 and Exh.P.4) and the fact that they to-date remain in cultivating possession of their respective shares was sufficient to demonstrate that the three essential ingredients of a valid gift stood proved. If at all Barkat Ali did not obtain sanction of the mutation, this fact would not negate the gift. As noted above, even if the mutation had not been recorded by the Patwari, the oral gift could otherwise have been proved through the testimony of witnesses. In the present case, the recording of the mutation (Exh.P.1), even though unsanctioned, very strongly corroborates the case set up by the petitioner/plaintiff.

18. Before parting with my discussion on the mutation (Exh.P.1), need to attend to one aspect of the same. The following noting appears at the bottom of the document. This noting appears to have been made at a subsequent stage because the jamabandi for the year 1949-50 (Exh.P.10) contains a note that Mutation No.315 is still on record but till date of Exh.P.10 no final order in respect of the mutation has been received. This note would indicate that at least until the preparation of the jamabandi (Exh.P.10) the mutation had not been rejected. The petitioner as P.W.6, however, deposed that the mutation was cancelled on oral request because of the adverse impact which it would have had on the status of Barkat Ali as sufaidposh and lamberdar. There is no evidence on record that Barkat Ali, had at any time, renounced the gift made by him or had sought to F repossess the land delivered to the six donees under his gift. What needs emphasis is that the gift having been completed in 1940 and title, as a consequence, having passed to the donees, even if there had been a subsequent change of mind by Barkat Ali, the same could not have resulted in the withdrawal, of the gift. The evidence in this case discussed above proves that the gift was completed in 1940. There was no attempt by Barkat Ali to reverse the gift and even if there had been any such attempt or if he had sought rejection of the mutation, this unilateral act on his part would not have sufficed for the purpose of retaking the suit property because title irrevocably stood vested in the donees.

19. Lastly, the petitioner/plaintiff has been non-suited by the learned appellate Court on the ground that an earlier suit filed by him, which had been withdrawn, operated as res judicata in the present case. This finding is also not legally tenable.

20. It is true that the petitioner had earlier filed a declaratory suit. The said suit was dismissed by the learned trial Court on 4-1-1988. The petitioner filed an appeal against the said dismissal. In the appeal, however, the petitioner through counsel sought permission to withdraw the suit on account of formal defects with permission to file a fresh suit. The statement of petitioner's learned counsel to this effect was recorded by the learned appellate Court on 5-12-1990. Learned counsel for the respondents gave his no objection to the grant of the aforesaid request subject to payment of costs. It was, in these circumstances, ordered that the petitioner would have a right to file a fresh suit subject to payment of H Rs.300 as costs. The learned appellate Court in its order dated 5-12-1990 (Exh.P.25) noted that costs had been paid by the petitioner.

21. In the above circumstances, I do not see how the learned appellate Court could have held that the fresh suit was hit by the principle of res judicata. This is even moreso considering that the respondents had accepted the costs and had not raised any objection in their written statement on the basis that the earlier proceedings operated as res judicata in the present suit.

22. Learned counsel for the respondents did refer to the case titled Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979) to contend that even in the foregoing circumstances the previous proceedings constituted res judicata. I have gone through the cited precedent and find the same to be clearly distinguishable on facts. In the said case there was no order passed with the consent of the parties. Furthermore, the Honourable Supreme Court noted that the High Court had expressly refused permission to the petitioner to withdraw his suit and, as a consequence, the High Court had dismissed the petitioner's R.S.A. on merits. A third aspect distinguishing the cited case from the facts of the present one is that after a full discussion of the facts the Honourable Supreme Court exercised its suo motu review powers on the ground that the High Court had, with justification, observed that the property, which was subject-matter of that litigation, had vested in the province byway of escheat. In the present case no such circumstances exist.

23. In view of the foregoing discussion, the impugned appellate decree dated 30-6-1998 is set aside and the decree of the learned trial Court dated 8-3-1993 is upheld. The petitioner shall also be entitled to his costs throughout. F.M./A-656/L????????????????????????????????????????????????????????????????????????????????????? Petition allowed.