2006 PLP 947 (YLR)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that Abdul Aziz petitioner had a real brother by the name Bootay Khan who died leaving behind a daughter Mst. Kaneez Fatima and a widow Mst. Fatima Bibi. Mst. Kaneez Fatima had landed property measuring 301 Kanals, 18 Marlas which was allegedly mutated by her through gift Mutation No.67attested on 8-8-1993 in favour of predecessor-in-interest of the respondent namely Muhammad Latif who was the real brother of her mother Mst. Fatima Bibi.

2. Through the present suit for declaration with possession the petitioner had challenged the mutation and claimed his share of inheritance in the property left by Mst. Kaneez Fatima who died on 5-5-1994 to the extent of 201 Kanals, 6 Marlas being real paternal uncle. Marriage of Mst. Kaneez Fatima with Muhammad Bashir Khan son of the respondent was also claimed to be illegal.

3. Initially Mst. Fatima mother of Mst. Kaneez Fatima was also arrayed as defendant in the suit. She filed her written statement confirming the fact .of gift. However, on her death, her name was deleted from the array of defendants. Muhammad Latif defendant however, contested the suit. The leaned trial Court after recording evidence vide judgment and decree dated 25-4-2000 decreed the suit. The same was assailed by the respondent through an appeal which stands allowed vide judgment and decree dated 20-10-2000.

4. It is contended by the learned counsel for the petitioner that attestation of mutation is one thing and the fact of gift followed by offer, acceptance and delivery of possession is a different aspect. Both are required to be established separately. It is argued that both these aspects have not been proved on record. With reference to Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 read with section 16 of the Contract Act it is contended that after the death of her father Mst. Kaneez Fatima along with her mother Mst. Fatima Bibi was residing with Muhammad Latif respondent being real brother of Fatima Bibi and was thus enjoying fiduciary relations with her, therefore, the transaction of gift and mutation deserves to have been proved without any shadow of doubt. With` reference to ,Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386 it is argued that mutation being not a document of title, the fact of gift independently required strong evidence. It is further submitted that the official witnesses who were involved in the transaction of mutation namely Tehsildar, Kanoongo and Patwari were not produced. The only two attesting witnesses namely Suleman and Babar have also not supported the respondent's case rather had appeared as P.W.2 and P.W.3 and had narrated the fact of attestation of mutation of gift. The only witness produced by the respondents mentioned in the disputed mutation is the identifier Sarwar Khan Lamberdar but he being an interested witness is not reliable. It is further argued that the learned Appellate Court instead of going to the very basic factors of the case had gone into the sidelines and examined only the fact of mental ailment of Mst. Kaneez Fatima. It is lastly argued that before the present impugned mutation the respondent had tried through Mutation No.44 to get the same transferred in the name of his son Bashir by way of gift but the same was rejected by Tehsildar on 14-4-1988, therefore, it is contended that the respondent was trying all out to grab this property.

5. On the other hand, learned counsel for respondent argued that at the time of attestation of mutation Fatima Bibi mother of the donor Mst. Kaneez Fatima had appeared before the attesting officer/ Tehsildar and put her thumb-impression on the mutation Exh.P/6. She also submitted her written statement in the case and confirmed the fact of gift and attestation of mutation. It is next argued that Mst. Kaneez Fatima survived for about a year's time after the mutation but did not challenge the gift in favour of the respondent. It is lastly argued with reference to the statements of D.W. 1 and D.W.2 that fact of gift had separately been established on record as both of them have specifically stated the fact of offer, acceptance and delivery of possession.

6. I have considered the arguments of the learned counsel for the parties.

7. There is no cavil to the proposition that a mutation does not confer title. Therefore, respondent Muhammad Latif who was the real beneficiary of the impugned mutation was required under the law to have established both the incidents separately i.e. firstly when the gift was offered and accepted coupled with delivery of possession and secondly, the attestation of mutation before the Tehsildar. For the establishment of fact of gift, the respondent himself appeared as D.W.1 and produced Sarwar Khan an identifying witness mentioned in the mutation as D.W.2. The statements of both these witnesses were recorded on 13-11-1990. D.W.2 stated in his examination-in-chief that offer of gift was made about 6-1/4 years ago in the house of Mst. Fatima Bibi where Latif respondent was present when the gift was offered and accepted. As against this D.W.1 the respondent himself did not specify the time when this gift was offered to him and was accepted by him. However, during cross-examination he stated that the offer was made at the Dera of Sarwar Lamberdar where Suleman and Babar were also present. The said Suleman and Babar appeared as P.W.2 and P.W.3 and hadcategorically denied the fact of attestation of mutation and offer of gift.

8. Admittedly, D.W.2 Sarwar is a lessee of the land in dispute being managed by respondent Muhammad Latif and is beneficiary of the property in question through him, therefore, his statement needs guarded scrutiny and cannot be relied without strong corroboration. In the instant case neither the officials regarding the completion of the mutation have been produced nor the two attesting witnesses P.Ws.2 and 3 have supported his version, therefore, the same could not form a basis for a finding in favour of the respondent. The endorsements made by the Revenue Officers without their production in witness-box can also not be relied upon.

9. Written statement filed by Mst. Fatima Bibi cannot be read in evidence as she had not entered in the witness-box to support what she had pleaded in her written statement. Particularly, keeping in view the fact that she being real sister of the respondent Muhammad Latif, after the death of her husband had joined her brother and wanted the property of her daughter to go to her parental side instead of her in-laws.

10. It appears that after the death of her husband Mst. Fatima mother of Mst. Kaneez Fatima took her to the house of her brother Latif, who using his fiduciary relationship with the lady firstly tried to get the property gifted in the name of his son Bashir, having failed through Exh.P./3, thereafter the present mutation was got attested. The only two attesting witnesses of the said mutation namely Suleman and Babar appeared as P.W.2 and P.W.3 had categorically denied the fact of attestation. They were also cited as witnesses by respondent Latif as well to be the witnesses of fact of gift, which was also categorically denied by them.

11. The nutshell of the above discussion is that respondent had miserably failed to establish both the aspects of the case i.e. the fact of gift and attestation of mutation. As a result this petition is allowed. Judgment and decree passed by the learned Appellate Court dated 20-1072000 is set aside and that of the learned trial Court dated 25-4-2000 is restored. H.B.T./A-674/L Revision allowed.