2013 PLP 1354 (YLR)

TARIQ JAVAID, J.

This civil revision is directed against the judgment and decree dated 12-7-2007 passed by the learned Additional District Judge, Faisalabad whereby appeal filed by the respondent against the judgment and decree dated 11-1-2007 was allowed and the suit of the petitioner was decreed.

2. The learned counsel or the petitioner has maintained that the learned Appellate Court has not considered evidence on record. It is maintained that at the time of entry of mutation respondent No.1 herself was present before the Revenue Officer and the gift mutation was entered with her consent. It is argued that the learned trial Court had sifted evidence in detail and had rightly dismissed the suit filed by the petitioner whereas the learned appellate court misread evidence on record and reversed the judgment and decree passed by the learned trial Court. It is further maintained that the impugned judgment suffers from misreading of evidence; hence it merits to be set aside.

3. On the other hand, learned counsel appearing on behalf of respondent No.1 has argued that respondent No.1 has not shown any plausible reason to have gifted the property to her brothers while she had her own children and husband and the alleged mutation is necessarily result of fraud and misrepresentation. It is argued that respondent No.1 had never ever gifted any property to her brothers. It was the inheritance of her father and she always intended to retain the same. However, the petitioners with mala fide intention, have deprived the respondent No.1 from her inheritance fraudulently and got the impugned mutation sanctioned in their names. The learned counsel for the respondent No.1, supported the impugned judgment and argued that the petitioner has not been able to show any consideration for the alleged gift nor they have ever proved that thumb mark on the entry of mutation was that of respondent No.1. The learned counsel for the respondent No.1 has relied on Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1); Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245); Abdul Rahim and another v. Mrs.Jannatay Bibi and 13 others (2000 SCMR 346); Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938); Khair Din v. Mst.Salman and others PLD 2002 SC 677 and Mst. Khurshid Bibi and others v. Ramzan and others (2006 CLC Lahore 1023) and contended that the alleged gift mutation was not sustainable and hence the impugned judgment and decree passed by the learned First Appellate Court did not merit to be interfered with by this court in revisional jurisdiction.

4. It is evident from the record that respondent No.1 denied the factum of gift. Suit property was inherited by her on the demise of her father and it is alleged that she was in possession of the same. It is also alleged that before filing of the suit she discovered that Mutation No. 279 dated 6-2-1995 had illegally and fraudulently been got entered and as such, it was void as against her rights. She appeared in the witness box as P.W.1 in support of her claim. Her testimony was supported by Abdul Majeed, P.W.2 while the present petitioner appeared as DW-1 and produced Muhammad Siddique and Muhammad Saeed P.W.2 and P.W.3 respectively in support of his claim. It is alleged in evidence that she thumb marked the mutation. However, no expert witness has been produced to prove that thumb marks were affixed by her. This was the most important piece of evidence in the circumstances of this case. In absence of proving her thumb marks the petitioner had to prove through reliable and cogent evidence that the gift was made in favour of the petitioners. Testimony of DW-2 and DW-3 was not found to be trustworthy as the learned First Appellate Court had rightly given the conclusion that P.Ws. were not present. Both the DWs alleged that mutation was sanctioned in their presence but none of the DWs thumb marked the same; therefore, their presence was rightly doubted.

5. In Ghulam Ali and 2 others supra, the Hon'ble Supreme Court held that entry in the Revenue Record is maintained only for the purpose of ensuring realization of land revenue; therefore, it cannot be said that the petitioners were conferred any right of ownership by mere fact that entry of mutation had been entered in their names and that too has not been established through reliable evidence to establish that any such mutation was entered with consent of respondent No.1. Similarly, in Abdul Majeed and 6 others case, supra, it was held that mutation although acted upon in the Revenue Record would not by its own force, be sufficient to prove the genuineness of the transaction to which it purports, unless the genuineness of the transaction is otherwise proved. It was also held that these documents being part of public record are admissible in evidence but they, by their own force, would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source.

6. Regarding possession of the suit property suffice it to say that the Hon'ble Full Bench of the Supreme Court in Khair Din's case, supra held that the persons having been deprived of their inherited property by other co-sharers fraudulently would be deemed to be in constructive possession of the property and cannot be denied right on the plea of limitation either under Article 142 or Article 144 of the Limitation Act. Another most important factor which goes against the petitioner is that respondent No.1 is stated to have her own family therefore; there is no ostensible reason to gift her property in favour of her brothers. Respectfully following the dicta laid down by the Hon'ble Supreme Court it appears that the judgment passed by the learned Appellate Court does not suffer from any illegality, hence this revision petition is dismissed with no order for costs. KMZ/A-74/L Revision dismissed.