2010 PLP 837 (CLC)

ARSHAD MAHMOOD, J.

With consensus of learned counsel for the parties this case is admitted to regular hearing and is being treated as a pacca case.

2. The civil revision calls in question judgment and decree dated 19-6-1995 passed by the learned Civil Judge 1st Class Lodhran and judgment and decree dated 14-3-1996 of the learned District Judge Lodhran whereby suit filed by the petitioner for cancellation of gift was dismissed concurrently.

3. Succinctly facts of the case as disclosed in this petition are that Ghulam Hussain petitioner is the real father of respondent Muhammad Bilal. Tamlek Mutation No.369 dated 18-6-1992 was executed in favour of respondent which was assailed by the petitioner through a declaratory suit. The respondent resisted the suit by raising various legal objections. The learned trial Court framed issues out of the divergent pleadings of the parties and after recording evidence learned trial Court dismissed the suit. Feeling aggrieved, petitioner preferred an appeal which was also dismissed. Hence this petition.

4. Learned counsel for the petitioner submits that impugned judgments and decrees are against law and facts of the case; adds that there has been a misreading and non-reading of material evidence by the Courts below. He went on to argue that the learned appellate Court has decided the matter cursorily without complying with the provisions of Order XLI Rule 33 C.P.C. and without looking into the crucial documents i.e. the impugned mutation Exh. P.1 and Nikahnama Exh.P.6. Relying upon Mst. Bibi Muhtar v. Mst. Amrezan and another PLD 1968 Peshawar 169 learned counsel argued with vehemence that mere mutation does not confer any title and the respondent in order to succeed had to prove factum of gift through independent evidence but he miserably failed to do so. Learned counsel laid much stress on the point that possession of the property has throughout been with the petitioner and was never transferred.

5. Learned counsel for the respondent, on the other hand referred to Article 155 of the Mohammadan Law to contend that no transfer of possession is required in the case of a gift by a father to his minor child. While relying upon Nazir Ahmad v. Umar and others 2002 SCMR 1114 learned counsel stood behind the impugned judgments and decrees and stressed hard that concurrent findings of the Courts below cannot be disturbed in revisional jurisdiction.

6. Heard learned counsel for the parties and examined the record.

7. The learned Courts below considering the factum that mutation of tamleek was sanctioned in favour of the respondent when he was a minor, dismissed the suit of the petitioner. The Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness. After scrutinizing the entire evidence on record it was concluded that respondent had successfully proved the factum of appearance of the petitioner before the revenue hierarchy for attestation of mutation of tamleek. The Courts further observed that there was valid offer and acceptance and as the tamleek was made in favour of minor son there was no need for transfer of possession. Findings of the Courts below are, therefore, based on proper appreciation of evidence. As per the dictum of law laid down by the apex Court in Aurangzeb through LRs and others v. Muhammad Jaffar and another 2007 SCMR 236, Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 concurrent findings of fact recorded are not open to exception unless it is established that same suffered from jurisdictional defect or were based on misreading or non-reading of evidence which elements are conspicuously lacking in the present civil revision. Resultantly this revision petition has no force and is dismissed. H.B.T./G-112/L Petition dismissed.