2004 PLP 1034 (YLR)

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 ref. Rana Muhammad Arshad Khan for Petitioner. Ghazanfar Ali Bhatti for Respondent. This civil revision assails judgment and decree dated 4-10-2003 passed by learned Additional District Judge, Sheikhupura, whereby appeal of the respondent was accepted and suit of the petitioner was dismissed.

2. Precisely, relevant facts for disposal of this petition are that the respondent filed a suit for declaration with permanent injunction against the petitioner claiming that she is an old, illiterate and Parda observing lady of 70 years of age, did not gift her land measuring 8 Kanals, 18 Marlas, 4 Sarsahi in favour of the petitioner through Mutation No.544 dated 19-1-1998. The respondent pleaded in her plaint that she inherited the above-referred small piece of land by way of inheritance from her father but the petitioner who is his real son, out of fraud, got the mutation of gift sanctioned in his favour. According to her, the petitioner represented his mother that her photograph and thumb-impressions were needed for preparation of her identity, card and in this manner he procured thumb-impressions on unwritten papers. The respondent pleaded in her plaint that on gaining of knowledge of commission of fraud, she immediately filed the suit hand.

3. The petitioner being defendant it the suit, denied assertions to the plaint and raised certain preliminary objections to the maintainability of suit, through his written statement. He claimed the gift and Mutation No.544 dated 19-1-1998 gift be voluntary and lawful, in lieu of his services rendered to the respondent. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, on the basis of his appraisal of evidence, dismissed the suit of the respondent vide judgment and decree dated 30-4-2003.

4. The respondent aggrieved of the decision of trial Court dated 30-4-2003 filed an appeal before the learned Additional District Judge, Sheikhupuia, which was accepted and her suit was decreed, as prayed. The petitioner has now come up in revisional jurisdiction of this Court against the appellate judgment and decree for its annulment. A pre-admission notice to the respondent was issued and in response to it, she has arranged her representative through her counsel.

5. Learned counsel for the petitioner submits that a lawful and voluntary gift by the respondent is proved on the file, hence, the Appellate Court erred in law, in returning findings, contrary to, the evidence. He further contends that the respondent had asserted fraud in attestation of mutation of gift but there is not an iota of evidence on the file in support of this allegation. According to him, it is a cardinal principle of law that a person who asserts fraud must prove by positive evidence. Learned counsel for the petitioner further elaborates his arguments by saying that gift in favour of the petitioner could not be revoked when it had become final.

6. Learned counsel appearing on behalf of the respondent denied assertions of the petitioner, supported the appellate judgment and urged that after denial of by the respondent and sanctioning mutation, out of her free-will, the petitioner who stands in fiduciary relationship with her was required to prove not only the mutation but also transaction itself. According to his submissions, there is no evidence on the file proving offer of the gift by the respondent and its acceptance by the petitioner, besides the fact that possession of the land was not delivered by the respondent, under the claimed gift. He further urged that the Appellate Court has passed judgment in accordance with the evidence on the file, hence, no interference in revisional jurisdiction is permissible.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. The petitioner is a real son of the respondent and does not deny that the respondent is an old, ailing, illiterate and Parda observing lady. The petitioner, in view of his relationship with the respondent stands in an active fiduciary relationship with her. Under law, after denial by the respondent of gift and attestation of mutation, the petitioner being beneficiary, was required to prove not only the mutation but also the transaction, itself. For a lawful gift, there had to be some offer/acceptance and delivery of possession, thereunder. These things were to be proved at the time of trial. The petitioner in order to discharge heavy onus placed on him, simply produced two witnesses to prove the mutation and these are, D.W.2, Patwari concerned who stated that he earlier did not know the respondent and that it is written in the mutation that it was registered on her statement. The other witness D.W.3, Zafarullah Malik, Naib Tehsildar, who sanctioned the mutation in dispute and deposed that "Bibi" appeared before him and no fraud was committed. The other two witnesses i.e. D.W.1 is Record Keeper of Sadar Dafter Qanungo who simply produced original Mutation No.544 and D.W.4 is the petitioner himself. None of these witnesses, including the petitioner himself (D.W.4), uttered a word regarding offer and acceptance of the gift. In absence of any such evidence, gift by the respondent is not proved on the file. Lady, like the respondent, is protected under law and it is not shown whether she was provided any independent advise before the alleged sanctioning of mutation. It was obligatory for all the concerned to make the respondent understand what she is doing especially viewing her age and her non exposure to public. She. was not aware of the things done in connection with the attestation/sanctioning of mutation. Any transaction by such a lady, without strict proof, cannot be maintained. My this view gets support from the judgments in the cases of Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 Privy Council 204; The National Electric Radio, Refrigeration Co. (Pakistan) Ltd., Karachi v. Messrs Sachiliae Lauro, Naples (Italy) and 3 others PLD 1977 Karachi 264; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Mst. Mahmooda Begun and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Manzoor Hussain v. Raja Shah and others 1992 CLC 602; Muhammad Hashim and others v. Arshad Javed and another 1991 MLD 986 and Baggu v. Mst. Rahman Bibi 1996 MLD

377. It is an admitted fact that the respondent was deserted in her young age when the petitioner was in her womb and had not come in this world. In such a position, only a small piece of land which is subject of instant litigation, was the only source of her livelihood. This is the only land which brought up the petitioner and. his other only brother. It is not shown as to why the respondent was ready and willing to part with her only livelihood, in her old age and that too, to the exclusion of her other real son. The respondent being exclusive owner and mother of the petitioner, can, if she really wants to gift this land to the petitioner, make some other lawful gift but the gift under discussion, having not been proved was rightly annulled by the Appellate Court, findings of whom are not shown to be contrary to the evidence on the file.

8. Under law, in case of judgments at variance by the two Courts below, appellate judgment is to be followed unless it is against the record and I have reasons for this conclusion. Firstly, Appellate Court is a Court of facts and exercises the same jurisdiction, as enjoyed by the trial Court, secondly, at the time of hearing of first appeal, entire case opens and it can re apprise evidence and give its own view point, in place of the one given by the trial Court, thirdly, judgment of the trial merges into appellate judgment and fourthly appellate Courts are normally presided over by comparatively senior judicial officers, having more experience to their credit. This view was earlier supported in the cases of Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Karachi 202; Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC

312. In view of this legal position, appellate judgment which is not contrary to record and no part of it, has been misread or non-read, will have to be followed.

9. For what has been discussed above, the appellate judgment is in consonance with the record, no illegality or irregularity was committed while deciding the lis, in absence of which, no interference in revisional jurisdiction is permissible, under law. This revision petition has no merit in it and is, consequently, dismissed, leaving the parties to bear their own costs. M.A.W./I-8/L Revision dismissed.