2005 PLP 1690 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against order, dated 27-5-2002 passed by learned Lahore High Court, Lahore, whereby the revision petition preferred on behalf of petitioner has been dismissed and the judgment/decree dated 13-5-2002 passed by learned Additional District Judge has been kept intact.

2. Precisely stated the facts of the case as enumerated in the order impugned are to the effect that "both the parties are real brother and sister. On the death of their father, Muhammad Idrees petitioner herein as well as his real sister Mst. Zeenat Bibi inherited the property left by their father. Mutation No.2543 dated 6-8-1983 was attested. Petitioner Muhammad Idrees was given 2/3rd share, whereas Mst. Zeenat Bibi was allowed the share of 1/3rd. Muhammad Idrees claimed to be the sole owner of the property on the basis of that Mst. Zeenat Bibi had gifted her share in his favour and Mutation No.2544 dated 13-8-1983 was sanctioned. When Mst. Zeenat Bibi came to know about the alleged attestation of Mutation No.2544 of gift dated 13-8-1983 in favour of his brother Muhammad Idrees, she filed suit challenging the same on the ground that the same is on the basis of fraud and misrepresentation. This suit was resisted by Muhammad Idrees petitioner by filing the written statement. It was contended that the suit was time-barred and Mst. Zeenat Bibi is estopped by her words and conduct to file the suit. He pleaded that Mst. Zeenat Bibi had gifted out her share to him with her free consent, whereupon the impugned mutation was attested". Being aggrieved the revision petition was preferred which was dismissed, hence this petition.

3. It is mainly contended by Mr. S. Naimul Hassan Sherazi, learned Advocate Supreme Court on behalf of petitioner that the factual and legal aspects of controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended that the Courts below have erred in law and misconstrued the issues and have violated the provisions as contemplated in Order XX, rule 5, C.P.C. It is urged emphatically that Mst. Zeenat was not Pardanasheen lady, therefore, no preferential treatment could be given to her. It is also argued that the land in question was never leased out by Mst. Zeenat to her brother Muhammad Idrees which aspect of the matter neither could be dilated upon nor decided in its true perspective and in fact a particular issue should have been framed in this context and thus, the learned trial Court could not appreciate this aspect of the controversy properly and in accordance with law which resulted in serious prejudice to the petitioner. It is contended with vehemence that Mst. Zeenat had transferred her 1 /3rd share to Muhammad Idrees who is her real brother in the name of Allah without any consideration on the basis whereof Mutation 2544 dated 13-8-1983 was attested before the Revenue Authority and the inter se arrangement made by Mst. Zeenat at her own could not be interfered with.

4. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have perused the order, dated 30-7-2001 passed by learned Civil Judge, order, dated 13-5-2001 passed by learned Additional District Judge and order impugned.

5. There is no denying the fact that Muhammad Idrees (petitioner) and Mst. Zeenat (respondent) are real brother and sister and legacy of their father devolved upon them as a result whereof.2/3rd share from the land in question having Mutation No.2544 was given to Muhammad Idrees (petitioner) while Mst. Zeenat (respondent) got 1/3rd share. The claim of the petitioner is that he became the exclusive owner of the land in question as Mst. Zeenat has gifted her share which was got A mutated in his name vide Mutation No.2544 dated 13-8-1983. The factum of gift was seriously controverted by Mst. Zeenat which according to her was never ever made and Mutation No.2544 is based on fraud and misrepresentation. She entered appearance in Court and vehemently denied that any gift deed was executed. In view of her categoric denial the factum of gift was to be proved by the petitioner being beneficiary on the basis of cogent and concrete evidence which could not be done.

6. After having gone through the entire evidence we are of the considered view that no gift deed was executed by Mst. Zeenat in favour of petitioner. When the attention of learned Advocate Supreme Court on behalf of petitioner was drawn towards the inheritance mutation bearing No.2543 which was attested on 6-8-1983 then how the land could have been gifted on 28-7-1983 as a valid gift could have been made on or after 6-8-1983 and not prior to that, no plausible justification could be offered by the learned Advocate Supreme Court. Even the Rapat Roznamcha dated 28-7-1983 hardly renders any assistance to the case of petitioner. The learned counsel could not explain that as to what was the justification for mentioning Rs.18,000 as "consideration" in the mutation entries when admittedly the gift was not in lieu of any consideration which smacks of mala fides. The petitioner has made a desperate attempt to deprive her real sister from the legacy of her father by employing deceitful techniques. The petitioner could not prove that the physical possession of land in question was handed over to him by Mst. Zeenat and without that the question of the constitution of valid gift does not arise. A similar proposition was discussed in Muhammad Yaqoob v. Feroze Khan 2003 SCMR 41, relevant paragraph whereof is reproduced herein below for ready reference:-- "(6) The delivery of possession of the land in question was essential ingredient to constitute a valid gift, is lacking in this case and thus, gift without possession being ab initio void cannot be made to get the land in question mutated in favour of petitioner. (Emphasis provided). In this regard we are fortified by the dictum laid down in the following cases: (i) Shamshad A. Shah and Hassan Shah PLD 1964 SC 143, (ii) Hedaya Vol.III, Second Edn. p.482, (iii) Amir Ali's Muhammadan Law Vol.I, Chap.V, (iv) Baillie's Digest of Muhammadan Law Part 2, 2nd Edn. pp.203, 204, (v) Ramchandra Jivaji Kanago v. Laxman Shrinivas Nair AIR 1945 PC 54, (vi) Jamma-ush-Shittat, (vii) Sharaya-ul-Islam; (viii) Ghulam Hassan v. Sarfraz Khan PLD 1956 SC Pak. 309, (ix) Sadik Hussain Khan v. Hashim Ali Khan LR 43 IA 212 and (x) Bashir Ahmed v. Muhammad Rafiq 2002 SCMR 1291." How the wrong mutation could confer a legal right in any property as initially the Revenue Record is meant for collection of revenue and ancillary matters. The Courts of law cannot remain oblivious regarding the erosion of moral values and the conduct of petitioner is worth quoting as a classic example in this regard. The learned High Court after having taken into consideration the entire record has concluded as under:

".... All the ingredients. of a valid gift have not been proved on the record, by Muhammad Idrees. There is neither declaration nor acceptance on the record. Even otherwise, it has not been proved that possession of Muhammad Idrees on the suit-land was given by Mst. Zeenat Bibi in pursuance of the valid gift. In this view of the matter, the learned Civil Judge fell in error while dismissing the suit of Mst. Zeenat Bibi. The learned Additional District Judge correctly read the evidence, interpreted the law and proceeded to set aside the judgment and decree passed by the learned Civil Judge, dated 30-7-2001 and proceeded to decree the suit of the respondent Mst. Zeenat Bibi and declared the impugned Mutation No.2544, dated 13-8-1983 as result of fraud and in consequence thereof, same is ineffective against her rights. No illegality or irregularity or illegal exercise of jurisdiction has been pointed out in the impugned judgment of the learned Additional District Judge by the learned counsel for the petitioner. Resultantly, this revision petition fails and is dismissed in limine."

7. A bare perusal would reveal that the conclusion as arrived at by the learned High Court is strictly in accordance with law and being well reasoned and unexceptionable hardly warrants any interference. The petition being merit less is dismissed and leave refused. S.A.K./M-907/S Leave refused.