1989 PLP 401 (MLD)

Ch. Inayat Ullah for Petitioners. Shehzad Shaukat for Respondent. Date of hearing: 22nd January, 1989. This revision is directed against the judgment and decree dated 22-10 1987 passed -by the learned Additional District Judge-1, Okara, whereby he reversed the decision of the Court of the first instance and decreed the respondent plaintiff's suit.

2. Parties are real brothers and sisters. The land in dispute belonged to their father Lakha who gifted it away in favour of the two sons on 13-3-1963 by a mutation. He died on the 28th of August, 7981. The respondent-plaintiff brought the present suit on 21-4-1982 alleging that the gift made some twenty years ago was obtained by the petitioners fraudulently from her father who due to his old age and chronic illness had virtually become a decrepit without possessing any more a disposing mind. She added that the donees who looked after the property obtained the mutation acting in collusion with the Lambardar and the revenue officials by wrongly showing the donor as having no other children. She maintained that it was a manipulation arranged to deprive her from getting share in his inheritance. She impleaded the other two sisters as formal parties

3. The suit-was resisted affirming the genuineness of the gift and denying the alleged fraud or collusion. Bar of limitation was taken up because already a period of nineteen years had elapsed after the gift was made and further that meanwhile possession of the donees had been open and exclusive.

4. Appropriate issues were framed on these pleadings. The trial court dismissed the suit holding that since the mutation of gift had been meanwhile incorporated into the Jamabandis, a presumption of truth attached to the same and that the respondent-plaintiff failed to rebut the presumption. The learned Additional District Judge in appeal, however, took the view that onus to prove genuineness of the gift shifted on the petitioners-donees and that they failed to rove the three constituents thereof namely, offer, acceptance and delivery of possession as per Shariat. He consequently reversed the findings of the trial Court and decreed the suit.

5. The oral evidence of both the sides was disbelieved by both the Court below. The entire evidence, worth consideration was the mutation Exh. P.5 and he Jamabandi Exh.n P.3 for the year 1980-81. Undeniably the mutation had been incorporated in it and the entry claimed a presumption of truth. It is a long received rule that the onus to prove a revenue entry to be wrong always lay on the party claiming so. In Abdul Ahad and others v. Roshan Din and 36 others (PLD x)79 SC 890) and Ahmad Ali and others v. Muhammad Iqbal and another (1986 SCMR 244) the rule propounded was that the entries in Jamabandies claimed a resumption of truth and that the onus always lay upon the person who challenged their correctness. In fact it was enunciated that the presumption of correctness attaching to such entries had to be rebutted, meaning thereby that such rebuttal must come from the party assailing the truth of the presumption obviously it was upon the respondent-plaintiff to have brought-tangible evidence rebut the presumption. The trial Court had rightly adopted this reasoning but the lower appellate Court, quite erroneously held otherwise. The rule enunciated' the above-mentioned cases was wrongly disregarded.

6. Mr: Shahzad Shaukat for the respondent referring to the order passed on the mutation Exh. P.5 submitted that fraud had been committed by the petitioners showing their father to be having no other issues. He pointed out that not only the petitioners but also the other two daughters were left by the deceased and at they were entitled to a share as such. I do not think the failure to make a mention of the three daughters by the Revenue Officer in the order was in all events an instance of fraud or misrepresentation. The deceased remained alive for nineteen years after the gift, but the respondent-plaintiff took no exception to the entry nor even the other two daughters arrayed as defendants shared the grievance with the respondent. One could presume from the existence of such a long state of mind on the part of the parties concerned that they were quite conscious of the event and yet they did not raise any objection to it. One possibility, though remote, may have been that the word "Aulaad" may-have been prefixed or suffixed by the word "Nareena" which might have been per chance omitted in the order. Thus the omission was not by itself significant so as to infer bad faith. No other point was urged particularly in regard to the chronic ill health or old age of the deceased donor. It signified a conscious disposal of the property on his part long before he died. The learned Additional District Judge erroneously held that the onus shifted on the petitioners-donees. His view cannot be sustained. Consequently revision petition is accepted and the impugned judgment and decree are set revision. The suit stands dismissed leaving the parties to bear their own costs. H.B.T./M-1105/L Petition accepted.