2006 PLP 1009 (CLC)

SH. HAKIM ALI, J.

A grandfather, namely, Muhammad Hussain, whose son Muhammad Naeem, had met with death, had alienated 22 Kanals from his own lands, situated in Chak No.71-A, Tehsil Khanpur, District Rahimyar Khan, through Mutation No.162, dated 10-2-1994, in favour of his minor granddaughter. Tafheem-ul-Huda, the daughter of Muhammad Naeem deceased. This mutation, which was sanctioned on 10-2-1994, was challenged by Muhammad Hussain, petitioner No.1, by filing a suit for declaration, in which he had asserted that he was owner of 22 Kanals of lands mentioned above, and that Mutation No.162 attested on 10-2-1994, displaying gift in favour of Tatheem-ul-Huda, granddaughter, was against facts, illegal, fictitious and collusive. In the aforesaid suit, Mst. Shahnaz Akhtar, the mother of Tafheem-ul-Huda, minor was also impleaded as defendant No.2. After the filing of that suit, another suit was also filed by Tatheem-ul-Huda, minor granddaughter of Muhammad Hussain through her mother Mst. Shahnaz Akhtar against Muhammad Hussain and Muhammad Saleem. Itmay be pointed out here that Muhammad Saleem is the second son of Muhammad Hussain, above noted plaintiff. In the suit filed by Tatheem?ul-Huda, declaration was sought by Tatheem-ul-Huda that she was owner of 22 Kanals of lands of specific numbers through the above noted mutation. In both the suits, prayer for grant of permanent injunction was also sought by the respective plaintiffs. Both the suits were consolidated. Issues were framed upon the divergent pleadings of the parties and the parties had produced their oral as well as documentary evidence to prove their cases and versions. The suit of Muhammad Hussain versus Tatheem-ul-Huda and another, was dismissed while the suit of Tatheem-ul-Huda filed against Muhammad Hussain. and Muhammad Saleem was decreed on 8-1-2005, by the learned Civil Judge, Khanpur. A single appeal filed against that judgment and decree by Muhammad Hussain and Muhammad Saleem had also met with failure from the learned Additional District Judge, Khanpur on 10-12-2005. Hence, this civil revision.

2. Putting challenge to the validity and correctness of the judgments of both the learned Courts below, learned counsel for the petitioners submits that Mutation No.162, in dispute, attested on 10-2-1994 was not a proof of title. It was not attested in the village where the property was situated, but was sanctioned in the office of Naib-Tehsildar/Assistant Collector, Ilnd Grade. Muhammad Hussain, petitioner No.1 was an old and illiterate person and had no intention to alienate the property in dispute. He was a deaf person and had not got sanctioned the mutation in dispute. The sole statement of Mst. Shahnaz Akhtar, mother of Tatheem-ul-Huda, minor, was not sufficient. There must have been some other evidence corroborating the facts of attestation of mutation in favour of Tatheem-ul-Huda. Therefore, the impugned judgment and decree may be set aside and the suit of Muhammad Hussain be decreed in his favour.

3. After considering the arguments of the learned counsel and from the minute examination of the case file, it has transpired that Tatheem?ul-Huda, minor daughter of Muhammad Naeem and Mst. Shahnaz Akhtar, who was granddaughter of Muhammad Hussain, had also filed a suit with the title of Tatheem-ul-Huda versus Muhammad Saleem and Muhammad Hussain. This suit was consolidated with the suit of Muhammad Hussain and was ultimately decreed by learned Civil Judge on 8-1-2005. It is pertinent to point out that no appeal was filed against that judgment and decree, which was passed in favour of Tafheem-ul-Huda, before the learned Additional District Judge and the same mistake was repeated in this Court also by filing this sole civil revision against the judgment and decree of dismissal for the appeal of Muhammad Hussain passed by learned Additional District Judge on 10-12-2005. The result of this grave mistake having been committed by the petitioners would be that suit of Tafheem-ul-Huda, which was decreed by the learned Civil Judge in her favour, the decree of it would remain intact, and the failure to file appeal against that decree by Muhammad Hussain and Muhammad Saleem would be creative of an obstacle in the way of impugning the present judgment and decree of dismissal of the suit of Muhammad Hussain, petitioner No.1. To narrate it again for the purpose of clarification, the petitioners who were pointed out this mistake at the stage of appeal also before the District Court by learned Additional District Judge and awareness was given to them, through the impugned judgment, remained stuck to that defect again and have opted not to tile a separate revision in this Court also against that decree, for the reasons best known to them. Through this conscious unbending attitude and refusal to challenge the decree through separate appeal and revision, passed in favour of Tatheem-ul-Huda in her suit, by the petitioners, is fatal for the acceptance of this civil revision on merits. So, in the presence of that decree passed in favour of Tatheem-ul-Huda, having not been challenged this civil revision cannot be accepted.

4. I have given my anxious thought to the merits of the case also, to examine as to whether the petitioners have got a strong case in their favour, so as to grant them assistance and help of this Court. But the merits of the case have also been found to have adjudged by both the learned Courts below correctly in favour of minor granddaughter of Muhammad Hussain. From the deposition of Muhammad Hussain, petitioner No.1, particularly from the answers, he had given in the cross-examination, he had in fact admitted that he had alienated 22 Kanals lands through the disputed mutation in favour of Tatheem-ul-Huda, his granddaughter, after a period of 213 years from the death of Muhammad Naeem, his son. The answers which I have found in the cross-examination, it would be beneficial to 'note those answers in this judgment also. From the above noted sentences, it has been admitted by Muhammad Hussain plaintiff that he had got disputed mutation sanctioned after the death of Muhammad Naeem, his son. It is worth-mentioning here that after this disputed mutation, the other remaining 22 Kanals of lands, which were left with Muhammad Hussain, petitioner No.1 was transferred by him in favour of Muhammad Saleem, petitioner No.2, the other son of Muhammad Hussain, through Mutation No.168, dated 30-3-1995. It appears that Muhammad Hussain after the death of his son Muhammad Naeem, had become sentimental, as he had lost that son in the younger age. So, he had intended to alienate the share of Muhammad Naeem, to his minor daughter, Tafheem-ul-Huda, which passions and sentiments were acted upon through the manifestation of getting the mutation in dispute sanctioned in favour of Tafheem-ul-Huda, minor granddaughter. It also appears from the statement of Muhammad Hussain plaintiff, that Muhammad Saleem had got remaining 22 Kanals alienated from Muhammad Hussain in his favour. After this transfer and saving his share, then he got Muhammad Hussain, his father compelled to get back the land gifted returned through litigation by filing the suit so that Muhammad Saleem could get that land alienated too in his favour. It is strange and contradictory version that while getting attestation of Mutation No.168, dated 30-3-1995, in favour of Muhammad Saleem, plaintiff, Muhammad Hussain's ability and capacity was not affected by any infirmity of illiteracy and deafness, and was not preventive in the matter of alienation, but while getting the sanction of Mutation No.162 in favour of Tatheem-ul-Huda, all these defects and disabilities were active to restrain the alienation. So, the same person, if he was illiterate and deaf, could act for Muhammad Saleem with soundness of his mind and health, why then it could to be held hale and hearty while gifting away the lands in favour of his minor granddaughter who was of his predeceased son. Therefore, plea of debility of Muhammad Hussain at the stage of effecting the gift in favour of Tatheem-ul-Huda cannot be accepted.

5. It is noteworthy that Muhammad Saleem, the other son got Mutation No.168 sanctioned on 30-3-1995 for the remaining 22 Kanals of agricultural land from Muhammad Hussain near about one year after the attestation of earlier Mutation No.162 on 10-2-1994. Due to the sanction of this mutation both these persons had implicdly and practically admitted that disputed Mutation No.162 dated 10-2-1994 was correctly sanctioned and that Muhammad Hussain was left with ownership of 22 Kanals only at the time of making gift in favour of Muhammad Saleem. So, alienation of 22 Kanals previously through Mutation No.162, otherwise was admitted. The note upon Mutation No.168 entered into Column No.14 of Mutation No.168 is material. At the time of making report to Patwari, it was stated by Muhammad Hussain that he was alienating his whole land 22 Kanals (remaining land) to Muhammad Saleem. After this statement and the attestation of Mutation No.168 itself is corroborative of the fact of the correctness of earlier Mutation No.162.

6. In the present suit, which was filed by Muhammad Hussain, it was his duty to prove that in the disputed mutation, he had not appeared or had not reported the gift, having been made by him, to the Patwari and had not made the statement before the concerned Revenue Officer. The perusal of mutation reveals that the petitioner himself had gone to Patwari and had reported the gift having been made and had requested him to enter such transaction on 13-12-1993. Patwari was the material witness who was to be brought into evidence, to disprove that Muhammad Hussain had not reported the factum of gift to him. The Revenue Officer who had recorded the statement of donor, the mother of donee, and the two identifiers on 13-12-1993 in the village concerned, were important witnesses but no one was produced by him to prove that no such statement was ever made by him before the Revenue Officer and that it was forged and fictitious statement or the result of impersonation. He had to prove that he had not thumb-marked, and to explain how his identity card number upon the statement was entered. As he had asserted fraud and forgery so he was to prove such version. It must be kept in mind that this is a case of minor granddaughter qua the grandfather, who was residing in the house of grandfather. In such cases beneficiary has not to prove the gift. It was the burden of donor to prove the alleged and asserted fictitious and A forged nature of the transaction. In case of father and minor daughter, grandfather qua the minor granddaughter, the intention to make the gift has to play the pivotal role. Reference may be made to Mst. Naseeban and others L.Rs. of Abdullah v. Maqbool Ahmad PLD 1987 Lah. 654 and Samo and 5 others v. The Officer on Special Duty, Federal Land Commission, Rawalpindi and 4 others 1981 CLC 1308. For this purpose, petitioner Muhammad Hussain had failed to bring any material evidence on the record, to disprove the transaction of gift, evidence through the above noted mutation.

7. The delivery of possession of the specific numbers have sufficiently been proved by bringing on record Exh.D.2, copy of record of rights (Jamabandi) for the year 1995-96, which has displayed that Abdul Majeed was cultivating the lands as tenant under Tatheem-ul-Huda in the specific Killa numbers noted in the suit of Tatheem-ul-Huda. The documents, Exh.D.3, copy of Khasragirdawri from Rabi, 1993 to 1995 and Exh.D.4, copy of another Khasragirdawri from 2000 to Rabi, 2001, have also supported the tenancy of Abdul Majeed under Tatheem-ul-Huda. Therefore, the possession having changed the hands has caused IC the completion of the transaction of gift.

8. Resultantly, the concurrent findings of fact with regard to the existence of factum of gift, failure of the plaintiff Muhammad Hussain to prove his assertion with regard to the forged and fictitious nature Of the transaction, the death of son of donor in his lifetime, the relationship of grandfather and minor granddaughter, the alienation from Muhammad Hussain in favour of his another son, namely Muhammad Saleem of the remaining lands without objection, non-filing of appeal and revision against the mutation, in revenue hierarchy, and against the decree passed in favour of Tatheem-ul-Huda with regard to the gift mutation before learned ' District Judge and in the High Court, all these circumstances and factors have compelled me to dismiss the revision at its preliminary stage. So, it is dismissed in limine without any order as to costs. F.B./M-145/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.