2002 PLP 1320 (YLR)

(1) Whether the suit is barred by time ? OPD (2) Whether the suit is not maintainable in the present form ? OPD (3) Whether the plaintiff has no cause of action and locus standi? OPD (4) Whether the suit is barred by res judicata? OPD (5) Whether Mutation of Gift No. 16 dated 9‑12‑1972 by Ahmed Din in favour of defendants Nos. 1, 2 is illegal, void, collusive and based on fraud ? OPP (6) Whether the plaintiff is entitled to the injunction prayed for ? OPP Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a judgment and decree dated 29‑11‑1987. The respondent filed a first appeal. This time again the judgment and decree of the learned trial Court was set aside and the case was remanded vide an order dated 27‑9‑1992, after framing the following additional issues:‑ (6‑A) Whether plaintiff is owner in possession of 1/4th of the disputed land being legal heir of Ahmad Din deceased? OPP (6‑B) Whether Ahmad Din deceased validly gifted the disputed land in favour of defendants No. 1,2 and impugned mutation was rightly sanctioned in their favour by the Revenue Authorities? OPD (6‑C) Whether the suit has been incorrectly valued for the purposes of court‑fee and jurisdiction if so what is the correct valuation of the suit for both purposes ? OPP (6‑D) Whether the plaintiff is estopped by his own conduct to institute the present suit? OPD Against this remand order both the parties filed civil revisions in this Court which were dismissed on 25‑5‑1993. The trial Court conducted proceedings in terms of the said remand order and proceeded to dismiss the suit vide a judgment and decree dated 25‑7‑1993. The respondent feeling aggrieved, filed a first appeal and this time the appeal was allowed by a learned Additional District Judge Toba Tek Singh vide ajudgment and decree dated 28‑9‑1995 and the suit of the respondent was decreed.

2. Mr. A.G. Tariq, Advocate for the petitioner argues that it had come on record that the respondent was not only disobedient but rude and even treated his father very badly and it was with intent to completely dis-inherent him; that Ahmed Din proceeded to gift away the property to his said two sons. Further argues that the petitioners did discharge onus of the said Issue No.6‑B and that the learned Additional District Judge has mis‑read the evidence on record while passing the impugned judgment and decree. Finally argued that since the mutation stood incorporated in Revenue Record, the rigours of the several judgments of this Court as also of the Honourable Supreme Court of Pakistan in the matter of mutations transactions would not be applicable in the present case.

3. Mr. Atta Ullah Chaudhry, learned counsel for the respondent, on the other hand, argues that it was the learned trial Court who failed to comprehend the impact of Issue No.6‑B and proceeded in the matter as if it was for the respondent to disprove the factum of gift. Supports the impugned judgment and decree of the learned Additional Court District Judge.

4. I have gone through the record, copies whereof are appended with this civil revision, with the assistance of the learned counsel for the parties. Before I proceed to deal with the first two contentions of the learned counsel for the petitioners, I deem it proper to deal with the said third contention with reference to the incorporation of the s mutation in the Revenue Record. I am afraid in view of the later judgment of the Honourable Supreme Court of Pakistan in the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 S.C.M.R. 1245), there is no matter of doubt that the mere fact that the mutation stands incorporated in the Revenue Record would not absolve the beneficiary thereof from proving the transaction evidenced by the said mutation.

5. Coming to the said first contention of the learned counsel, I am afraid instead of promoting the case of the petitioners the same derrogates therefrom because to my mind no doubt a Muslim can gift away his property to anyone which, of course, results in dis inheritance of all or some of the heirs but in e case the transfer is, made with intent to deprive the heirs of their right of inheritance the gift would be void on this short ground alone. When confronted with the said proposition, the learned counsel does not press the said contention.

6. Now in order to discharge the onus of Issue No.6‑B which lay squarely on the said donees, they produced Ahmad Khan, D.W.2, who is a Revenue Officer, who attested the mutation. He stated that Mutation No. 16 was entered vide a Report No. 95 dated 27‑11‑1972 on 5-12‑1972 and he attested it on 9‑12‑1972; that Ahmad Din donor was identified by Abdul Ghafoor, Lumbardar of Chak No.712. Hassoo son of Muhammad, Khewat Dar, in his cross‑examination, states that he attested the mutation in the Revenue estate of (Piece) 58/1 in a general assembly D. W.3 is Saeed Ahmed, Patwari who had entered the said Mutation No.16. He states that Mutation was entered in his presence on 9‑12‑1972. In his cross‑examination he first stated that mutation was entered at the spot in (Piece) 58/1 but then stated that the mutation was attested in Chak No.7/12 at the Dera of Abdul Ghafoor, Lumbardar by the Tehsildar. Revenue Officer appearing as D.W.2. He stated that the mutation was attested in Tukra 58/1 at the Dera of Rehmat Ali. This is the entire evidence in support of the said transaction. A bare look on the said statement made by the Tehsildar and Patwari and the said persons who allegedly identified Ahmed Din go to show that all the three witnesses are making statements regarding three different transactions. Apart from this it will be seen that the mutation by itself is not a document of title even if it is proved that it was validly, entered and attested. There is no evidence at all of the factum of the gift itself on record. None of the two donees have opted to appear and they have put in their attorney Abdul Wahid in the witness‑box as D.W.5. There is not a word in the statement of this witness as to when Ahmed Din made a declaration or gift as to whether it was accepted and whether possession was delivered under the gift. On the other hand, in his cross‑examination he has stated that he is not a witness to any mutation or other transaction. In this state of evidence on record it cannot be said that the learned Additional District Judge has misread the evidence on record while reversing the findings of the learned trial Court on issue No.6‑B. There is accordingly no force in this Civil Revision which is dismissed, leaving the parties to bear their own costs. M.A.R./M‑1084/L Revision dismissed.