1996 PLP 869 (MLD)

(1) Whether the deceased Abdul Karim made a valid gift 'in favour of the plaintiffs? (2) Whether the inheritance Mutation No.272 dated 13‑11‑1984 is void illegal and ineffective as against the rights of the plaintiffs? (3) Whether the plaintiffs have no cause of action? OPD. (4) Whether the plaintiffs have no locus standi? OPD . (5) Whether the suit is collusive between, the plaintiffs on one hand and Ismail and Sultan on the other hand? OPD (6) Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation and to what effect? OPD (7) Whether the defendants are entitled to recover special costs Under section 35‑A, C.P.C.? OPD (8) Whether the suit is not maintainable in its present form? OPD (9) Relief.

3. The parties produced their evidence, oral and documentary. The petitioners‑plaintiffs produced five P.Ws. and 'Tamleek Nama' in evidence. The respondents‑defendants produced three witnesses as well as Exh.D‑1 copy of impugned Mutation No.272, dated 13‑11‑1984; Exh.D‑2, to copy of Jamabandi for the year 1983‑84; Exh.D‑3, copy of daily diary; Exh. D-4 copy of Jamabandi for the year 1981‑82 of Chak Gutwala, District Faisalabad and Exh.D‑5 copy of Khasra Girdawari. After hearing the parties the trial court gave the weight to the statements of the P.Ws. by expressing that they established the execution of the ' Tamleek Nama' at the instance of Abdul I have during his lifetime. On the basis of findings on Issues Nos. l and 2 the suit for declaration was decreed subject to deposit of the required stamp paper and penalty thereof for ' Tamleek Nama.

4. The respondents filed their appeal which has been accepted by the lower appellate Court to the extent of Mst. Zainib Bibi and Mst. Jannat lower respondents as their brother Abdur Rashid withdrew the appeal to his Bibi extent. Hence this revision petition which has been resisted by the respondent own its.

5. I have heard the leaned counsel for the parties and gone through the record before me. It has been canvassed by the learned counsel for the petitioners‑plaintiffs that the statement of Syed Muhammad Anwar Stamp Vendor P.W.1 has established that the non‑Judicial stamp paper was purchased by Abdul Karim on 26‑5‑1984 during his lifetime and that the statements of Bashir Ahmad P.W.2 (scribe of 'Tamleek Nama' Exh.P2) as well as of marginal witnesses Abdul Ghani P.W.1 and Sardar Muhammad P.W.4s the established the inception of the ' Tamleek' and transfer of the property in f have of the petitioners‑plaintiffs on 26‑5‑1984 by the real owner Abdul Karim during his lifetime. I do not agree with him. As rightly pointed out by the learned counsel for the respondents Nos.2 and 3 Syed Muhammad Anwar Stamp‑Vendor P.W.1 did not know personally Abdul Karim who did not mention the number of the National Identity Card of Abdul Karim on the non‑judicial stamp paper on which 'Tamleek Nama' Exh.P‑2 was scribed. This aspect of the matter has gone to the root of identity of Abdul Karim particularly when the stamp‑vendor had no personal relations with him. Bashir Ahmad Scribe P.W.2 is a resident of District Vehari and a close relative of the petitioners‑plaintiffs being their 'Behnoi'. His presence at the spot is per chance. If the non judicial stamp paper was purchased by Abdul Karim during his lifetime on 26‑5‑1984 the same could be got scribed on the same date, as the case is, from a deed‑writer. Abdul Ghani P.W.3 is a resident of Chak No.23‑A, Tehsil Liaquat Pur where Abdul Karim lived. This witness had gone to enquire about the health of the mother of the petitioners‑plaintiffs. Thus: he has close connections with them and cannot be termed to be an independent witness. Sardar Muhammad PWA is a resident of District Okara and his presence at the spot when ' Tamleek Nama' Exh.P2 was scribed is per chance. He is the father‑in‑law of Abdul Ghani petitioner‑plaintiff and thus he is highly interested witness. The aforesaid material produced by the petitioners‑plaintiffs has failed to impress me so as to make me hold the execution of the ' Tamleek Nama' Exh.P2 as correct. At this stage it is that of utmost importance to refer to section 42 of the West Pakistan Land Revenue Act, 1967. According to this section 42 any person acquiring by gift, inheritance, purchase or otherwise any right in an estate as a land‑owner shall within three months from the date of such acquisition report his acquisition of right to the Patwari of estate who shall record such report in the Daily Diary to be maintained in the prescribed manner, shall furnish a copy of the report so recorded free of cost to the person making the report and shall send a copy of the report within a week of its receipt by him to the Union Committee, Town Committee, or Union Council within which the estate is situated. In the instant matter it is the admitted position that the aforesaid fact of execution of ' Tamleek Nama' on 26‑5‑1984 and transfer of the ownership and possessor rights was not and has not been reported to the Patwari within three months or even beyond that with effect from 26‑5‑1984. The wisdom behind the incorporation of section 42 of the Land Revenue Act, 1967 is that the document or oral fact of the instant nature or those mentioned in the section come to the notice of the affected persons within three months of the execution or existence and no affected person is taken by surprise. The provisions of the said section 42 have been incorporated to minimise and eclipse the chances of fraud, misrepresentation or execution/initiation of the transactions/facts afterwards. The instant dispute is hit by the mandatory provisions of section 42 of the Land Revenue Act, 1967 as word "shall" has been mentioned which is a mandatory direction. The crux of the matter is that the impugned mutation of inheritance bearing No.272 was sanctioned on 13‑11‑1984 while the ' Tamleek Nama' is dated 26‑5‑1984 and the suit was instituted on 23‑12‑1984. The non‑registration of the ' Tamleek Nama' is a fact to be used against the petitioners‑plaintiffs to make me term the same as a suspicious document in the circumstances of the dispute in hand. The non‑registration of gift deed would not make the same as inadmissible. However, the facts of each case have to be considered and appreciated in accordance with law. The irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that Abdul Karim paternal uncle of the petitioners‑plaintiffs did not execute 'Tamleek Nama' Exh.P2 in their favour and impugned mutation of inheritance bearing No.272 attested on 13‑11‑1984 is legal and operative. However, Abdur Rasheed appellant waived his right before the learned lower appellate Court and he shall remain bound by the undertaking/statement made by him.

6. For what, has been said above, I see no merit in this revision petition. The impugned judgment and decree of the lower appellate Court does not suffer from any material irregularity. I, therefore, dismiss this revision petition with costs. A.A./2‑168/L Revision dismissed.