2014 PLP 77 (CLC)

AMIN-UD-DIN KHAN, J. Through this civil revision, the petitioners have impugned the judgment decree dated 19-8-2010 passed by learned Additional District Judge, Burewala, whereby the appeal filed by them was dismissed, and the judgment and decree dated 26-6-2009 passed by learned Civil Judge, Burewala, whereby the suit for declaration filed by the petitioners-plaintiffs was dismissed.

2. Briefly, the facts as leading to this civil revision are that the plaintiffs on 7-7-1997 filed a suit for declaration challenging therein the Mutation of gift bearing No.344 attested on 29-3-1994 by the predecessor of plaintiffs. Sardar Ali, in favour of defendants Nos.1 to 5, who are also the successors of said Sardar Ali. The written statement was filed and suit was contested. Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 26-6-2009 suit was dismissed by the trial Court. Feeling aggrieved thereby, an appeal was preferred by the petitioners-plaintiffs before the first appellate court, which also met with the same fate vide judgment and decree dated 19-8-2010. Hence, this civil revision.

3. Learned counsel for the petitioners argue that Sardar Ali, the predecessor of parties was patient of Asthma and died in the age of 90 years, 5/6 years before his death he was seriously ill, he was having three wives and also issues from them; that he was owner of suit-land and after his death the petitioners-plaintiffs came to know about the alleged gift in favour of defendants Nos.1 to 5, therefore they filed the suit, as the said Sardar Ali never gifted the suit-land in favour of the defendants. Learned counsel argued that when the mutation of gift was challenged by the legal heirs of alleged donor and claim of defendants Nos.1 to 5 is on the basis of oral mutation of gift, therefore they were bound under the law to prove the event of gift independent of attestation of mutation of gift and also to prove offer, acceptance and delivery of possession of suit land under the gift to the donees but they miserably failed to prove the same. Learned counsel for the petitioners have referred to the statement of P.W.-2. Amjad Ali Lumberdar, who allegedly identified the donor at the time of attestation of gift and that of P.W.-3, Anwar Hussain who is shown as Pattidar on the impugned gift mutation, both of them have denied their signatures upon the mutation in question. Further by referring the statement of D.W.-3 (Muhammad Nawaz) one of the defendants, learned counsel stated that the defendants miserably failed to prove the gift in their favour as well as valid attestation of mutation.

4. On the other hand, learned counsel for the respondents-defendants argue that the petitioners-plaintiffs failed to establish that the donor was insane at the time of attestation of mutation; that even his illness has not been proved through the evidence and pleadings are never part of the evidence: that there are concurrent findings recorded by two courts below against the petitioners, therefore this Court ordinarily does not endorse the reinterpretation of evidence already interpreted by the courts below, therefore prays for dismissal of the instant civil revision.

5. I have heard the learned counsel for the parties at full length and have gone through the record with their able assistance.

6. I am of the view that when a mutation of gift is challenged by any legal heir of the deceased donor in favour of some of his legal heirs, the statement of plaintiff on oath before the court that there was no such gift made in the life of donor, then the onus to prove the valid gift in favour of the donee/defendant and valid attestation of mutation etc. in favour of said donee shifts upon the latter to establish the same. In this case, even the making of gift or offer, acceptance and delivery of possession prior to the attestation of mutation is missing from the pleading of defendants-donees. It is clear that when there is no pleading in this context, no case can he established through evidence on the point which has not been pleaded by a party. Further, when there is no pleading, therefore no question of proof of event of gift independent of attestation of mutation. As the defendants-respondents are the beneficiary of transaction, it was their duty to prove the event of gift independent of attestation of mutation and then valid attestation of gift mutation on the basis of gift already completed in all respects by proving offer, acceptance and delivery of possession. By the careful scanning of evidence, pleadings and record it seems that the donees/respondents are of the impression that it is the plaintiff who has to disprove the attestation of mutation and event of gift because they have not even tried to plead and prove the making of valid gift by proving offer, acceptance and delivery of possession of suit land under the gift to them. Even I have noticed that in 'Khasra Girdawari' which was produced as Exh.D.15, at the time of gift and even thereafter Manzoor Hussain one of the plaintiffs is in possession of various portions of suit-land.

7. Further, when P.W.-2 and P.W.-3 have denied their signatures upon the impugned mutation and there are two reports of Handwriting Experts, which are conflicting with each other, in this eventuality in the light of law laid down by the august Supreme Court of Pakistan in the judgment reported as "PLD 1980 Supreme Court 228 (Major Sher Afzal v. Shamim Firdaus and another)", none of the report can be relied upon. In this case, as there are two reports having confliction with each other, therefore none of the report can be relied upon. Even otherwise, report of Expert with regard to handwriting is an opinion, which is not binding upon the court. In this view of the matter, the statement on oath by both these P.Ws. cannot be ignored.

8. So far as the concurrent findings of two courts below against the petitioners-plaintiffs are concerned, as I have noticed that both the courts below have ignored the law declared on the point that the beneficiary of a transaction is bound to prove the same and further in case of gift the beneficiary is also bound to prove the transaction independent of attestation of mutation. As I have observed supra not even the event of gift prior to the attestation of mutation has been pleaded, thus, both the courts below fell in error while not applying the correct law of the subject while deciding the lis, therefore the findings of two courts below are not sustainable under the law because this Court while exercising jurisdiction under section 115 of the C.P.C. is not precluded from touching the concurrent findings of two courts below when the same are based upon misapplication of law or misreading and non-reading of evidence, as such there is no hurdle in the way of exercising the jurisdiction by this Court.

9. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees dated 19-8-2010 and 26-6-2009 passed by both the courts below are set aside. Resultantly, the suit filed by the petitioners-plaintiffs shall stand decreed. AG/M-249/L Revision accepted.