2022 PLP 418 (YLR)

MUHAMMAD NAEEM ANWAR, J.

Impugned herein is the judgment and decree of learned Additional District Judge-II, Bannu, dated 17.02.2021, whereby the petitioners appeal was dismissed, consequently, order of learned Civil Judge-IV, Bannu dated 15.09.2020 was maintained.

2. Necessary facts, as per contents of plaint, are that respondent No.1 filed a suit for declaration to the effect that she is owner in possession of property, description of which was given in head note A of the plaint, situated in the revenue estate of Howed Khas Tehsil and District Bannu, entries in revenue papers on the basis of mutation No. 1685 dated 08.05.2014 in favour of defendants are the result of fraud, against the fact, unwarranted, unjustified, mala fide and collusion therefore, ineffective upon her rights and liable to correction. It was averred by him that neither she has gifted her property to anyone including defendants nor she appeared before any revenue officer for the purpose of alleged gift. Suit was contested by defendants through joint written statement on different legal and factual objections. After conclusion of evidence, learned trial court through its judgment and decree, decreed her suit. Being dissatisfied, the petitioners have assailed the judgment and decree through appeal, however, their appeal was dismissed vide impugned judgment and decree dated 17.02.2021, hence this revision.

3. Arguments heard and record perused.

4. The main gist of the arguments of the learned counsel for petitioners are that they have proved the correctness and genuineness of the gift mutation by producing relevant Tehsildar/revenue officer, the marginal witness thereof and that they have filed an application for forensic examination of the thumb impression of respondent/plaintiff, but the said application was incorrectly and illegally dismissed. He further stressed that the plaintiff/respondent No.1 could not prove her version of alleged fraud and collusion and despite that her suit was decreed, which resulted into grave miscarriage of justice.

5. It is not disputed that plaintiff/respondent No. 1 has inherited the disputed property from her mother. Record reveals that the suit was instituted on 28.04.2015 by which she has challenged the authenticity of mutation No. 1685 dated 08.05.2014, which shows that within a year of attestation of mutation the suit was brought against petitioners. Furthermore, plaintiff and petitioner No. 1 were wife and husband but their relations were strained even in 2014 that was the reason that even at the time of institution of suit plaintiff has not shown/written herself to be the wife of petitioner No.

1. In such circumstances when they were not friendly with each other the transfer of property and that too through gift was even otherwise a question mark and as such petitioner was bound to prove the factum of gift i.e., offer, acceptance and delivery of possession. Record is silent for any such evidence. Petitioners have placed on file Talaq Nama, contents of which delineate that plaintiff and petitioner No. 1 never remained in amicable terms with each other and ultimately in the year 2017 plaintiff has filed a suit for dissolution of marriage, petitioner contested the suit till this court when his Writ Petition No. 400-B/2018 was dismissed on 20.02.2020.

6. More-so, respondent No.1 was the owner of 11-Kanal 18-Marla in nine khasra numbers which was shown to have allegedly been gifted to petitioners and when challenged no evidence whatsoever was brought on record to prove the basic ingredients i.e., (i) declaration/offer by the donor (ii) acceptance of gift by the donee and (iii) delivery of possession under the gift without which no sanctity was attached to the alleged gift. Wisdom is drawn from the principles enunciated in the case of Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2019 SCMR 179) wherein it was held that: - "The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate. The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws, as repeatedly held by this Court, including in the cases of Islam-ud-Din v. Noor Jahan (2016 SCMR 986) and Khalida Azhar v. Viqar Rustan Bakhshi (2018 SCMR 30). Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy."

7. No doubt the petitioners have produced witnesses but revenue officer deposed that he himself did not know the doner, he also added that she was parda nasheen lady and the witnesses who identified the plaintiff were not the relative of the plaintiff. Interestingly, the petitioners have produced Idalat Khan Patwari Halqa as DW-1, who deposed that he has been transferred to the concerned Patwar Circle some two years ago and that neither he has entered the mutation nor in his presence the mutation was attested. Petitioners have produced Muhammad Ibrar Khan as DW-2, who in his examination deposed that Revenue Officer has checked CNIC of plaintiff whereas Asmat Ullah retired Tehsildar appeared as DW-4 and deposed that neither the donor had computerized national identity card nor he has entered it on the mutation Ex PW 1/1, thus the authenticity and correctness of mutation shrouded in mystery, besides above the petitioners have not proved the declaration of alleged gift. In the case of Wali Muhammad Khan and another v. Mst. Amina and others (2018 SCMR 2080) Hon'ble Supreme Court has observed that:-- "The appellants had to establish that Mst. Pari had impressed her thumb impression on it but made no effort to prove it, which they could have done by having it forensically examined and having it compared with some document on which she had admittedly impressed her thumb, such as her identity card and or her passport. The appellants' case was that after gifting them her property Mst. Pari proceeded to perform Hajj therefore she must have been issued a passport, which is only issued to those possessing an identity card." Guidance was also sought from the case law titled Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095) Sikandar Hayat and another v. Sughran Bibi and 6 others (2020 SCMR 214).

8. Accordingly, petitioners have not been able to prove the authenticity and correctness of the alleged gift as their case is deficient of required evidence rather the alleged gift itself is suffering from suspicion and doubts to sustain. Even otherwise there are concurrent findings of fact of the court below which cannot be set aside in revisional jurisdiction under section 115 of C.P.C. The question with respect to the revisional powers of this Court was attended by the august Supreme Court in a case titled "Umar Dad Khan and another v. Tila Muhammad Khan and 14 others" reported as PLD 1970 SC

288. The view was reiterated by the Hon'ble Supreme Court in a case titled "Muhammad Bux v. Muhammad Ali" reported as 1984 SCMR

504. It was further re-enforced by the august Supreme Court in a case titled "Haji Muhammad Din v. Malik Muhammad Abdullah" reported as PLD 1994 SC 291 and now it is settled principle of law that findings recorded by the court of competent jurisdiction cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegally or material irregularity, which element in the instant case as discussed earlier is missing. I have also studied the impugned judgments from all angles and found that both Courts below have attended almost all aspects of the case. There is nothing in the same which may warrant interference by this Court in the exercise of revisional jurisdiction.

9. Thus, in view of the above discussion, the revision petition being without any substance stands dismissed in limine. MQ/106/P Revision dismissed.