2012 PLP 1373 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Appellants/Defendants Nos.1 to 3 namely Noor Muhammad, Muhammad Ishaque and Muhammad Ramzan sons of Babu are step brothers of Mst. Azmat-e-Bibi respondent-plaintiff and deceased appellant Faqir Muhammad son of Khairu was the paternal cousin of respondent-plaintiff but son of her eldest uncle (Taya). After the death of the real father of respondent-plaintiff, her mother married the father of appellants Nos.1 to 3 namely Babu. The suit land was inherited by respondent/plaintiff from her father. On 25-2-1964, gift Mutation No.2659 was entered in the revenue record of Mauza Kamalia, Tehsil Kamalia evidencing gift of the suit land on behalf of respondent Azmat-e-Bibi in favour of the appellants. This gift mutation was challenged by respondent-plaintiff by way of a declaratory suit filed on 4-7-1997 wherein it was alleged that plaintiff is an illiterate village lady; that after the death of her father, the suit land fell in her share; that after her marriage, she shifted to Gujranwala and handed over the property to the appellants-defendants for cultivation; that the latter had been paying share of the produce to her as tenants but four months prior to the institution of the suit, a dispute arose between the parties and on queries made from the Revenue Patwari, it was revealed that the appellants-defendants had fraudulently got mutated the suit land in their favour on the basis of an oral gift vide the gift Mutation No.2659 dated 25-2-1964. She averred that she had never gifted away the suit property to them; that the mutation in question is the result of fraud, misrepresentation and collusion and therefore is void and she be declared the exclusive owner and her possession be restored to her.

2. Appellant-defendants, however, controverted the allegations levelled in the plaint by filing a written statement and contended therein that the suit was barred by time; that the mutation under challenge was entered in the revenue record of her own volition; that she herself appeared before the revenue officer; that she was identified by the witnesses and that they were delivered possession of the suit land pursuant to the said gift; that they were in possession ever since then and that their plea is also endorsed by the revenue record as the said mutation is duly reflected therein. In terms of the divergent pleas, following issues were framed:-- (1) Whether the plaintiff never gifted away her suit property to the defendants as such impugned Mutation No.2659 dated 25-2-1964 is against law and facts, hence liable to be set aside? (2) Whether the valid Hibba of the suit property was created in favour of the defendants? (3) Whether the plaintiff has got no cause of action and locus standi to file this suit? (4) Whether the suit is not maintainable in its present form? (5) Whether the plaintiff is estopped by her words and conduct to file this suit? (6) Whether the suit of the plaintiff is based on mala fide as such she is not entitled to any relief? (7) Whether the suit is time barred? (8) Whether the suit has not been properly valued for the purposes of court fee? If so how much court fee is payable? (9) Whether the suit is false, frivolous and vexatious and as such defendants are entitled to special costs under section 35A of C.P.C.?"

3. The learned trial Court dismissed the suit primarily on the basis of its findings on issues Nos.1, 2 and

7. This judgment and decree was upheld by the learned Additional District Judge vide judgment and decree dated 6-7-2001. However, the learned High Court reversed the concurrent judgments and decrees, inter alia, on the ground that Mutation No.2659 was not a bona fide transaction; that there is no report in "Roznamcha Waqiati" about it of the said date; that the report made by her step father regarding the oral gift in favour of his real sons on behalf of his step daughter was not credible; that being beneficiaries, the onus was on the appellant-defendants to prove that there was a valid gift; that the essential ingredients of gift under the law have not been met; that the step father namely Babu in order to usurp the land of the respondent-plaintiff mutated the land in question in favour of his sons and there being no sanctity attached to such a fraudulent transaction, the limitation would not come in the way of justice.

4. Learned counsel for the appellants Mr. Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court, in support of this appeal, submitted that the learned High Court has interfered with the concurrent judgments and findings of fact in revisional jurisdiction which is not tenable in law and is beyond the parameters laid down by this Court for exercise of jurisdiction under section 115 of the C.P.C.; that in reversing the concurrent findings, the learned High Court has ignored the other relevant entries in Roznamcha Waqiati and the statement of the revenue Patwari on the said issue; that reversal of the concurrent findings by the High Court has not been a reasoned exercise and that respondent-plaintiff was herself present at the time of the mutation and the finding of the learned High Court that there was misrepresentation or fraud besides being conjectural is against the evidence led. He further submitted that the mutation under challenge stood incorporated in the subsequent Jamabandies/Record of Rights and a presumption of truth is attached to such entries which could not have been annulled on mere oral assertions. Elaborating his submissions, learned counsel contended that there was evidence to the effect that a Punchayat was convened by the elders of the family where the respondent-plaintiff was told that she had made the oral gift and mutation was genuine and that she should withdraw the suit but she resiled; that the learned High Court has totally ignored this evidence; that the learned High Court has not correctly decided the question of limitation by observing that it was a fraudulent and void transaction which finding is conjectural and is not supported by any material on record. In support of the submissions made, he relied on the following judgments of this Court:-- (1) Abdul Khaliq v. Ch. Rehman Ali (2012 SCMR 508) (2) Atiq-ur-Rehman v. Muhammad Amin (PLD 2006 SC 309) (3) Abdul Sattar v. Mst. Anar Bibi (PLD 2007 SC 609) (4) Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) (2008 SCMR 428) (5) Yaseen Ali v. Sakina Bibi (2006 MLD 1259) (6) Salamat Ali v. Khair ud Din (2007 YLR 2453) (7) Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member Board of Revenue Punjab Lahore and others (1995 SCMR 1719) (8) Hakim Khan v. Aurangzeb (1979 SCMR 625). (9) The Evacuee Trust Property Board v. Haji Ghulam Rasul Khokhar (1990 SCMR 725) (10) Muhammad Amir v. Mst. Beevi (2007 SCMR 614) (11) Lal Khan v. Muhammad Yousaf (PLD 2011 SC 657)

5. We have considered the submissions made and have gone through the precedent case-law to which reference has been made by appellants' learned counsel.

6. There is no cavil to the proposition that the jurisdiction of High Court under section 115, C.P.C. is narrower and that the concurrent findings of fact cannot be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread the evidence or have ignored any material piece of evidence or those are perverse and reflect some jurisdictional error. In Muhammad Akhtar v. Mst. Manna (2001 SCMR 1700) at page 1704, the Court held as follows:-- "We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with. In this regard reference can be made to 2000 SCMR 974 at 986 wherein it was observed as follows:-- "It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C." This view was reiterated in Ghulam Muhammad v. Ghulam Ali (2004 SCMR 1001) wherein the Court held that "it is, settled principle of law that no sanctity can be attached with the concurrent finding of fact if it is found suffering from the defect of misreading and non-reading of evidence and there is no impediment for the High Court to correct such an error and illegality in the revisional jurisdiction." A similar view was taken in Abdul Mateen v. Mustakhia (2006 SCMR 50) wherein at page 55, this Court held as follows:-- "The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction." In Muhammad Khaqan v. Trustees of the Port of Karachi (2008 SCMR 428) at page 431, the Court observed as follows:-- "This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings."

7. In the case in hand, the learned High Court interfered with the concurrent findings of fact because it found that those findings not only reflected misreading of evidence but also were against the law declared. It noted that respondent/plaintiff was admittedly an illiterate 'Parda Nasheen' Lady and the report dated 22-2-1964 purported to have been made by Babu, stepfather of respondent/plaintiff to the effect that the latter wanted to gift her land to her stepbrothers had not been proved by leading credible evidence. The Revenue Patwari Abdul Shakoor while appearing as D.W.6 while confronted with the relevant record admitted that though there is a report No.312 dated 22-2-1964 but on the same day there is an endorsement to the effect that on the said date, no event worth the report had taken place. Vide the impugned mutation of gift, valuable agricultural land had been gifted to her stepbrothers without any ostensible reason and notwithstanding the fact that she had her own children to look after. The questions whether she had authorized her stepfather to make a report about the intended gift or was she present at the time of the sanction of said mutation, were crucial questions and germane to issues Nos.1 and

2. While addressing these questions, the learned Additional Sessions Judge misread the evidence in para 14 of the impugned judgment in holding that "the person identifying the mutation and the person who acted as revenue officer have appeared in the witness box to corroborate the plea of the respondents." The person (Niaz Ali) who purportedly identified respondent Azmat-e-Bibi, at the time of attestation of mutation on 25-2-1964, was never examined. Similarly, the learned Additional Sessions Judge misconstrued material evidence on record in observing that since consolidation proceedings had taken place in 1967 and the impugned mutation was sanctioned much prior to that i.e. 1964 and as no objection was raised by the respondent/plaintiff in the consolidation proceedings "this conduct of the appellant is itself sufficient to believe that she had considered herself to have parted with the ownership of the land prior to the year 1967". Her explanation was that though she was informed of the consolidation proceedings, but she did not join the proceedings as she thought, in those proceedings she would get land according to her entitlement; that she was not provided with copy of Khatooni (document of ownership) and was not aware of the fraud. She had categorically stated in cross-examination that:--

8. It is in evidence that after her marriage she had shifted to Gujranwala from Kamalia (where the land is situated) and she kept receiving her share of the produce as the land was being cultivated by appellant/defendants as tenants. The afore-referred explanation in those circumstances was sufficient to prove that she had no prior knowledge of the impugned mutation and further that the entries of Jama Bandees were not challenged earlier because she was not aware of that. While deciding issue No.7 i.e. whether the suit is time-barred, the Appellate Court did not consider the afore-mentioned evidence and held as follows:-- "No convincing evidence has been produced by the appellant to prove the suit within time. From the expiry of more than 30 years time it is held that the suit is badly time-barred."

9. It has consistently been held by this Court that mutation by itself does not create a title and the person deriving title thereunder has to prove that the transfer did part with the ownership of the property voluntarily. The onus lay on the beneficiaries to prove that it was bona fide transaction. No unimpeachable evidence was led by them to prove that Azmat-e- Bibi/plaintiff was present at the time of attestation of mutation or that she had instructed Babu, her stepfather to make a gift in favour of her stepbrothers. The statement of Muhammad Ashraf D.W.8 who at the relevant time was Naib Tehsildar and attested mutation No.2659 would be of no avail as he admitted in cross-examination that neither he knew the parties personally nor the persons who allegedly identified the donor/Azmat-e-Bibi. There is no endorsement on the mutation either that the attestation was made in a public gathering (Jalsa-e-Aam). The evidence of Babu D.W.11, the step-father who purportedly appeared on her behalf to make the report about gift in favour of his real sons and without there being any ostensible reason and to the deprivation of her own children, would not be a credible transaction.

10. Learned counsel for the appellant referred to Panchayet having been convened when respondent/plaintiff raised the issue of impugned mutation. A Panchayet is an informal mode of dispute resolution prevalent mostly in rural areas of the subcontinent whereby a group of elders/respectables, mostly agreed upon with mutual consent to resolve some dispute between the parties. The contention that the Panchayet decided the matter in favour of the appellants is not borne out either from the pleadings or the evidence led. Firstly, there is no specific plea in written statement regarding this. Secondly, there is nothing in evidence to indicate that those who constituted Panchayet were consensually agreed upon and thirdly, that the said group gave a verdict to the effect that the impugned gift mutation was voluntarily made by the respondent/plaintiff. When asked as to who participated in Panchayet, D.W.1 Rai Ziaullah Khan stated that Muhammad Sardar (D.W.2), Muhammad Rafique (D.W.10) and Babu (stepfather and defendant) participated. D.W.10 Muhammad Rafique averred in examination-in-chief that during the Panchayet proceedings, respondent Azmat-e-Bibi had alleged that she had been dispossessed of the suit land forcibly (Zabardasti); that 20-25 persons including Babu, Sardar Muhammad, Ziaullah Khan, Noor Muhammad (D.W.12), Faqir Muhammad, Azmat-e-Bibi and her 2/3 sons also participated along with respectables of the city. He further alleged that she was asked to take oath on Holy Quran as to whether she had consented about the gift or not, to which she refused. An inference was attempted to be drawn by the learned counsel that the respondent/plaintiff was a liar and that having made the gift voluntarily, she should not be permitted to resile from the same. This argument is not tenable because bringing the Holy Quran in such matters besides being alien to law could not be a substitute for leading positive evidence on the point in issue. In Muhammad Arshad v. The State (PLD 2011 SC 350), the act of a DSP/Investigating Officer who gave a finding of innocence in favour of an accused on the basis of oath on Holy Quran taken in a Mosque, was deprecated by this Court.

11. Much stress was laid by appellants' learned counsel that since the mutation was reflected in subsequent Jama Bandees, presumption of truth is attached to it. This would not be tenable as presumption so attached stands rebutted in the instant case. Besides failure of the appellant/defendants to lead positive evidence that respondent-plaintiff had herself appeared to make the gift, there is evidence to the effect that she had been getting her share of produce of the suit land; that she had shifted to Gujranwala after marriage and she filed the suit only when the dispute arose and she checked the revenue record to find that she had been deprived of her land fraudulently. The credibility of such entries in revenue record stands eroded. In Aurangzeb v. Muhammad Jaffar (2007 SCMR 236), the entries made in the revenue record, by way of an oral gift, were challenged through a civil suit, which was decreed; appeal was dismissed but the learned High Court reversed the concurrent judgments and decrees and dismissed the suit. The matter came up before this Court and while setting aside the judgment of the High Court and restoring that of the trial Court, the Court laid down as follows:-- "It is a settled law that entries in the Revenue Record not having the foundation of title but only evidence thereof interpretation of entries made therein remains a question of fact not liable to be reopened in revision petition as a concurrent findings of fact reached by the two Courts below on the basis of the evidence led in the suit are sancrosanct for the purposes of revision petition before the learned High Court on the ground that there is no jurisdictional error of the Courts pointed out as having been committed in reaching those findings. ............................................................................. ............................................................................. ............................................................................. ............................................................................. The learned High Court was not justified to give due weight to the mutations in question in view of the evidence produced by the parties before the trial Court and the two Courts below i.e. the trial Court and the first Appellate Court had given concurrent conclusions against the respondent with regard to the mutations which were in consonance with the law laid down by this Court in Haji Ghulam Rasool's case PLD 1971 SC

376. The aforesaid proposition of law is also supported by the law laid down by the Privy Council in Nagashar Bakhs Singh's case AIR 1920 PC

46. It is a settled proposition of law that mere mutation does not confer any right as observed by this Court in Mst. Noor Fatima's case 1990 SCMR 629."

12. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. M.W.A./N-8/SC Appeal dismisse