1995 PLP 719 (MLD)

2. The brief facts of the case are that the present petitioners‑plaintiffs filed a suit for declaration and injunction against Ghulam Muhammad, predecessor‑in‑interest of respondents Nos. 1‑A to 1‑D and respondent No.2 regarding the land measuring 123 Kanals and 16 Marlas, the description whereof is given in the plaint. The case of the petitioners is that the suit land was owned by one Dhuman Khan, who orally gifted it away in the first week of July 1989 to them. Admittedly, Dhuman died on 11‑10‑1989. After his death, mutation of Inheritance with regard to the suit land/property which bears No.188 for the land located in Bharwal and Mutation No. 366 regarding the land in village Dera, were entered in the name of the defendants respondents. The plaintiffs‑petitioners have challenged these mutations of inheritance on the ground that these were wrongly sanctioned in favour of the respondents‑defendants. They pleaded that the mutations be declared null and void.

3. The suit was contested by the respondents‑defendants. They filed written statement and raised number of objections. They contended that Dhuman Khan was not physically fit in July and thus was not in a position to transfer the suit land by way of gift. Certain issues were framed as mentioned in the lower Courts' judgments.

4. At the trial, plaintiffs‑petitioners examined P.W.1 Lal Khan, P.W.2 Imdad Hussain, P.W.3 Ghulam Hussain and Azmat Bibi, one of the plaintiffs petitioners appeared as P.W.4. They tendered in evidence copy of Register Haqdaran Zamin for the year 1986‑87 (Exh.Pl) and for the year 1985 86 (Exh.P2). They also produced copy of Mutation No. 372 (Exh.P3) and copy of Mutation No. 189 (Exh.P4).

5. The respondents also examined Gul Anwar D.W. 1, and Muhammad Afzal, Special Attorney of the respondents, as D.W.2. They tendered in evidence special power of attorney (Exh.Dl), copy of the order passed by the Collector in appeal, dated 16‑11‑1989 (Exh.D2), copy of Mutation of Inheritance No. 188 dated 3‑7‑1989 and also copy of Mutation No.366 (Exh.D3). The findings of the trial Court were against the plaintiffs and their suit was dismissed.

6. The petitioners‑plaintiffs preferred an appeal but that, too, met the same fate vide the impugned judgment and decree of the appellate Court.

7. Learned counsel for the petitioners contends that although it is an oral gift but the oral evidence is quite cogent and reliable. He is of the view that there are no material contradictions in the statements of the P.Ws. Thus, the evidence produced by the petitioners be relied upon and the suit be decreed. During the course of arguments, learned counsel admits that in the lifetime of Dhuman Khan, as per entries in the Revenue Record, the possession was not with the alleged donees and even after the death of Dhuman Khan the entries in the revenue record do not speak of any gift especially with reference to the transfer of possession of the suit land/property.

8. Learned Additional District Judge in para. 9 of the impugned judgment has dealt with the question of possession of land. He came to the conclusion that there is no documentary evidence in any form to show that the possession of the suit land was ever transferred in favour of the alleged donees. He also referred to certain contradictions in the evidence of the petitioners plaintiffs.

9. I have heard the learned counsel. His main contention is that the oral evidence of P.Ws. be accepted and suit be decreed. Regarding the documentary evidence produced by the other side, he admits that there is no entry in the Revenue Record to show that the possession of the suit land was ever transferred in favour of the petitioners‑plaintiffs, at any stage during the lifetime of the last male owner or after his death, till the date, the suit‑was filed. In this case, two inheritance mutations negated the factum of any gift in favour of the petitioners‑plaintiffs especially for the reason that the deceased expired much prior to 7‑7‑1989 (the date when the mutations of inheritance were sanctioned in favour of the legal heirs). In addition to this, no copy of Khasra Girdawari has been placed on record to show the factum of possession. Similarly, there is no such entry supporting the cause of plaintiffs‑petitioners that the possession of the suit land was transferred in pursuance of the alleged oral gift. It is an accepted principle of law that a gift can be effective only if three things are proved, namely, declaration of gift, acceptance of the gift coupled with the transfer of possession. In the present case, oral evidence is full of contradictions and, as such, inherently not to be relied upon'. No document of any nature has been produced to prove the declaration of gift, its acceptance and the important factor of transferring of possession because of gift. For these reasons, I am of the view that the petitioners have made a futile effort to deprive the actual legal heirs of Dhuman Khan of their inheritance of all the property which he owned and left. I do not like to dilate about an important factor that the plaintiffs‑petitioners attempted to take away the total property of Dhuman Khan with a view to deprive the legal heirs which act may compel to say that frustrating Shariat Law of inheritance to deprive the legal heirs of their rights of inheritance in a mala fide manner cannot have the legal cover and sanctity.

10. Above all it is a case of concurrent findings of fact of both the Courts below. In such like cases interference by this Court is not called for. In view of the above, I have no hesitation to say that this civil revision has no merit. It, is, therefore, dismissed in limine. A.A./R-166/L Revision dismissed in limine.