2014 PLP 2053 (YLR)

M. SOHAIL IQBAL BHATTI, J.

Through this civil revision, the petitioners have challenged the impugned judgments and decrees dated 12-3-2014 passed by learned Additional District Judge, Ahmadpur East whereby he dismissed the appeal filed by the petitioners and 27-7-2011 passed by learned Civil Judge, 2nd Class, Ahmadpur East whereby he decreed the suit filed by respondent No. 1.

2. The facts of the case are that respondent No.1 Mst. Maqsood Mai/plaintiff filed a suit for declaration against the petitioners and respondents Nos. 2 and 3 and one another defendant asserting therein that predecessors of the parties namely Kaloo son of Wasaya was owner of agricultural property fully described in the head note of the plaint and she being the legal heir of Kaloo was entitled to her legal share in the property owned by Kaloo. Respondent No.1 also challenged the legality of the Mutations Nos.355 and 356 dated 25-3-1992 showing sale in favour of petitioner No.1 and tamleek in favour of petitioners Nos.2 and 3 respectively on the ground of mis-representation, fraud while alleging that the seller/donor/deceased Kaloo never appeared before any revenue officer. The defendants vehemently contested the suit, denied the assertions of the plaintiff by way of filing the written statement. Out of divergent pleadings of the parties, learned trial court framed the following issues:-- (1) Whether the Mutation No.355 and Mutation No.356 in favour of the defendants are illegal, against facts, fraudulent, collusive, and in effective upon the right of the plaintiff? OPP (2) Whether the plaintiff is owner in possession of the suit property as legal heir of Kaloo deceased? OPP (3) If the above said issues are proved, whether the plaintiff is entitled to get decree as reasoned in the plaint? OPP (4) Whether the suit is not maintainable in the present form? OPD (5) Relief.

3. Both the parties adduced their respective evidence oral as well as documentary. The suit of the plaintiff was decreed vide judgment and decree dated 27-7-2011 passed by learned trial Court. Feeling aggrieved, an appeal was filed by the defendants before learned Additional District Judge, Ahmad Pur East which was dismissed through judgment and decree dated 12-3-2014. Hence, this civil revision.

4. The main reliance of the learned counsel for the petitioners is that both the courts below have failed to appreciate the legal position that the suit filed by the respondent No.1 Mst. Maqsood Mai was bad for mis joinder of causes of action and thus came within the mischief of Order 2 Rule 2 C.P.C. it has been further argued that suit for declaration simpliciter under section 42 of the Specific Relief Act, 1877 was not maintainable, as the plaintiff did not claim the relief of possession. It has been further argued that the transaction of Gift would be completed when the donor declared his intention of making gift in favour of his legal heirs. He placed his reliance on 1984 SCMR 1110 (Mst. Tayyaba Khanam and others versus Chairman, Federal Land Commission and others).

5. I have considered the arguments advanced by the learned counsel for the petitioners and have perused the record.

6. As far as the question of legality of the transaction of the gift is concerned, the petitioners are the beneficiaries and they have to prove the factum of tamleek in their favour especially in the circumstances where some of the legal heirs have been deprived from their lawful right of inheritance. The requirements of attestation of mutation have no nexus with the establishment of transaction of sale as well as tamleek.

7. The transaction of tamleek has three ingredients i.e. offer, acceptance and delivery of possession and similarly for the transaction of sale, the payment of consideration has to be established as a sine qua non. The present petitioners in their written statements have not provided necessary details as to where and how the transactions of sale and tamleek took place; there is no detail about the offer of sale or payment of consideration; nor is there any detail as to how Kaloo being donor made an offer of gift to the donees and as to when donees accepted that offer and how the physical possession was given to the donees. The petitioners/defendants/bene-ficiaries of the transactions of sale and tamleek have failed to produce evidence to establish the transactions of sale and tamleek respectively.

8. In my opinion, in present case the mutations do not carry any presumption of truth; as the transaction of sale and gift are required to be proved independently. Evidence led by the petitioners being beneficiaries of disputed mutations is quite deficient to prove the transactions of sale and tamleek. Even otherwise, the petitioners in their evidence had tried to prove the transactions of mutations; section 42 of the Land Revenue Act, 1967 stipulates that every mutation entry is to be recorded in presence of the person whose right have been acquired and that if such person has been identified by two respectable persons. Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation. The statement of DW/4 i.e. Farooq Ahmad Patwari shatters the entire case of the petitioners when he deposed that at the time of sanction of mutations, the parties did not appear.

9. The contention of the petitioners in their evidence that the plaintiff/Mst. Maqsood Mai was deprived by Kaloo of her right of inheritance on account of her marriage with her choice. I am afraid that this could hardly be a ground to deprive a legal heir of her lawful share of inheritance merely that she has entered into a contract of marriage with her own free will which is otherwise a legal right of every Muslim girl.

10. The provisions of Order II, Rule 2, C.P.C. provide that a suit cannot proceed on the basis of misjoinder and non-joinder of causes of action, but in the present case, the mutations of sale and tamleek bearing Nos.355 and 356 respectively dated 25-3-1992 were passed in a single course of transactions and both the mutations deprived the plaintiff/ respondent No.1 from her lawful share of inheriting the property left by her predecessor in interest namely Kaloo, thus the provisions of Order II, Rule 2, C.P.C. do not come to the rescue of the petitioners.

11. As far as the contention of the learned counsel for the petitioners to the extent that Iqrar Nama (Exh-P/1) had not been proved by the respondent No.1/ plaintiff through a confidence inspiring evidence, is of no significance. In my view, even if the Iqrar Nama is not proved, the land mark judgment rendered by the Honourable Supreme Court of Pakistan reported in PLD 1990 Supreme Court 1 (Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi) establishes that upon the death of predecessor, the inheritance automatically opens and devolution of property takes place through inheritance immediately without any other intervention; even if the Iqrar Nama (Ex-P/1) remains un-proved, it would have no bearing upon the legal right of inheritance of the respondent No.1/plaintiff as the legal heir is to be considered in constructive possession of the property. Possession of the brothers thus would be taken to be possession of their sisters.

12. It goes without saying that the petitioners have challenged the concurrent findings of both the courts below by invoking the revisional jurisdiction of this Court. In this regard, the Honourable Supreme Court of Pakistan in a judgment reported in 2007 SCMR 870 (Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others) has observed as under:-- "it is established proposition of law that findings of question of law or fact, howsoever, erroneous the same may be 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 suffers from jurisdictional defect, illegality or material irregularity."

13. The High Court while exercising its revisional jurisdiction is to satisfy itself upon three matters; (i) That the order of the sub-ordinate court is within its jurisdiction; (ii) That the case is one in which the court ought to exercise jurisdiction; and (iii) That in exercising jurisdiction, the court has not acted illegally, i.e. in breach of some provision of law, or with material irregularity, i.e., by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. If High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of sub-ordinate courts upon question of fact or law.

14. For what has been discussed above, I do not find any illegality, material irregularity, jurisdictional defect or misreading and non-reading in the judgments and decrees passed by the learned courts below. Resultantly, this civil revision is dismissed in limine. SA/L-5/L Petition dismissed.