P L D 2025 Balochistan 152 (PLP)

MUHAMMAD EJAZ SWATI, J.

The petitioners are aggrieved against the order dated 06.04.2023, passed by learned Senior Member Board of Revenue (SMBR), whereby petition under Section 164 of the West Pakistan Land Revenue Act, 1967 (the Act) filed by the petitioners was dismissed.

2. The facts of the case are that Dr. Noor Muhammad (late) (the donor) contracted two marriages during his life time. From his first wife, "Khair-un-Nisa (who passed away during her husbands' lifetime), two sons, Ghulam Haider and Ghulam Nabi were born. From his second wife Naz Khatoon, he had four sons, Ghulam Mustafa, Javed Iqbal, Ghulam Fareed and Gulam Farooq and four daughters, Bibi Foozia, Bibi Gul Bakht, Bibi Zeinat and Bibi Razia were born. In his life time, the donor filed an application dated 10-02-2021, before the Settlement Officer, Quetta for the cancellation of gift mutation serial No.7050, with Reference Mutation No.2597 dated 25.03.2010. This pertains to land measuring 4712 sq ft, in favour of his son Ghulam Mustafa (first gift mutation). Addi-tionally there is gift Mutation Reference No.7917, serial No.1003 for land measuring 4000 sq ft. (second gift mutation) dated 03.05.2018 in favour of his sons Javed Iqbal and Ghulam Fareed (petitioners Nos. 2 and 3).

3. The donor alleged in his application that he intended to distribute his two lands amongst all his sons through Hiba/gift. However, the concerned Patwari took his thump impression on blank papers and erroneously recorded the mutations in question in favour of the petitioners. The learned Settlement Officer, vide order dated 29.04.2021, allowed the application. On appeal under Section 161 of the Act, filed by the petitioners was dismissed by the Additional Commissioner, Quetta Division vide order dated 12-09-2022.

4. The revision under Section 164 of the Act filed by the petitioners was also dismissed by the learned SMBR, vide impugned order dated 06-04-2023. The donor Noor Muhammad died prior to filing of the instant Constitutional petition, therefore, he is represented by his son Ghulam Nahi (from his first wife).

5. The learned counsel for the petitioners contended that the learned SMBR (respondent No.4) has passed the impugned order without giving any reasons; that question of validity on the plea of fraud or otherwise of gift mutation was not the domain of the revenue hierarchy, but fall within the plenary jurisdiction of the civil court; that the revenue hierarchies have no jurisdiction to entertain disputed question of facts.

6. The learned counsel for the respondents contended that in respect of gift of second property related to mutation No.7917, measuring 4000 square feet in favour of the petitioners Javed Iqbal (petitioner No.2) and Ghulam Fareed (petitioner No.3/donee), the mutation entry dated 03-05-2018 is silent in respect of delivery of possession of gifted property to the donees, therefore, revocation of such gift was option of the donor, which he exercised and in this regard no disputed question was involved; that in respect of gift mutation in favour Ghulam Mustafa (petitioner No.1) there was error on the part of the revenue authority, that the donor had neither any intention to gift the property to petitioner No.1, depriving the remaining legal heirs and in this respect there was admitted misrepresentation, therefore, the mutation Nos. 2597, 7917/1003 were illegal and same was rightly cancelled and such cancellation was further affirmed by the respondent No.4; that there are three concurrent decisions in favour of the respondents, which could not have been set aside in constitutional jurisdiction.

7. We have heard the learned counsel for both parties and perused the record. The donor challenged the gift mutation of the (first property) reference to mutation No.2597, dated 25.03.2010. The donor sought cancellation of this gift mutation on the ground of fraud, which was contested by the petitioners, resulting in a controversial question of facts. Such disputes require adjudication through the presentation of evidence by both parties in support of their respective claims. It is important to note that Section 172 of the Act assigns certain matters to the jurisdiction of the Revenue authority, thereby excluding the jurisdiction of civil court. The revenue authority has a limited scope of inquiry and does not function like a civil court concerning contested matters that necessitate the framing of issues and determination through evidence. Such matters fall solely within the jurisdiction of civil courts. Furthermore, Section 172 (2) (XVI) of the Act leaves the adjudication of plea of fraud to the competence of civil court. Reliance in this respect is placed on case title Abdul Majeed Khan through L.Rs and others v. Ms. Naheem Begum and others (2014 SCMR 1524).

8. In the instant case, the revenue authority including settlement authority, Collector Quetta and the learned SMBR vide impugned orders had decided controversial question of "fraud" in a summary proceedings, which was excluded under subsection (2) of clause (v) and clause-(xvi) of Section 172 of the Act, to the extent of first mutation of gift dated 25.03.2010, for which they had no jurisdiction, therefore, to that extent the impugned orders are declared without lawful authority and the aggrieved legal heirs of Dr. Noor Muhammad (late) may take their recourse before plenary jurisdiction of civil court. Regarding the gift mutation of the second property dated 03-05-2018, in favour of the donees, specifically Javed Iqbal and Fareed Ahmed (petitioners Nos.2 and 3) it is noted that the donees did not dispute this mutation. Consequently, the second based on the contents of the undisputed gift mutation. The Revenue Authority, under of clauses (ii), (vi) and (xvi) subsection (2) of Section 172 of the Act is authorized to exercise its powers. This include to compelling the discharge of any duties imposed by the Act or any other enactment for the time being enforce, correcting any entries in the record of rights, or addressing any claims to set aside, on grounds other than "fraud".

9. To constitute a valid gift three essential ingredients under Section 149 of Principle of Muhammadan Law is provided i.e. (1) Declaration of gift. (2) Acceptance of the gift. (3) Delivery of possession of the subject of the gift by the donor to the donee. Section 167 of Principles of Muhammadan Law provide that donor can opt revocation of gift before delivery of possession or where gift property has not been delivered to the donee. In case titled Azeem Khan and another v. Mjahid Khan and others (2016 SCMR 1417), the Hon'ble Supreme of Pakistan observed that petitioner was under legal obligation to establish the ingredients of the gift claimed by him under impugned mutation. In case titled Mst. Kalsoom Begum v. Peran Ditta and others (2022 SCMR 1352), the Honorable Supreme Court observed that the gift deed does not state that the donee or either of them had accepted the gift of the said land. therefore, it cannot be held that the gift of said land was accepted by either of them and mere fact that they were in possession of the said land is of no significance or consequence since they were purported donors sons, and as such tiling the land for him. In case titled Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore (2019 SCMR 906) the Honorable Supreme Court of Pakistan observed as under:-- "(sic.) Regarding learned ASC's argument that a 17 year old case could not be reopened in the revenue side for the purpose of correction in the record for which only the Civil Courts have jurisdiction, we may observe that per section 172(2)(vi) of the Act 1967, only the revenue authorities are entitled to correct any entry in a record of rights, periodical entry or register of mutation to the exclusion of the Civil Courts, of course which are not controversial in nature. In the present matter, it was found that as a result of consolidation proceedings, respondent No.2's land was reduced due to an error which was corrected and despite numerous opportunities the appellant could not justify his claim to further land than that which fell to his share. In our opinion there was hardly any controversy involved in this exercise"

10. In the instant case, the recital in the mutation of the gift for the second property dated 03.05.2018, in favour of donees specifically Javed Iqbal and Fareed Ahmed (petitioners Nos. 2 and 3) does not state that the purported subject matter of the gift was handed over to the donees. Therefore, it cannot be concluded that the gift of the said land was delivered to the donees. The contention of the learned counsel for the petitioners asserting that the question whether the gift/land was handed over to the donees required determination through oral evidence, is not tenable, given the peculiar circumstances of this case. Article 102 of the Qanun-e-Shahadat Order, 1984 (the order), provides that when the term of a contract, grant or any deposition of property, have been reduced to the form of a document, no evidence shall be admissible to prove the terms of such contract, grant or other deposition of property or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provision here before contained. This article provides that no oral evidence could be led to contradict the contents of the written document as the same is deemed inadmissible in the law. In essence, this means that the oral evidence cannot outweigh documentary evidence. The documentary evidence that is not objected at the relevant time, would prevail against oral evidence, regardless of how abundant the latter may be. The Hon'ble Supreme Court of Pakistan in case of Abdul Ghani and others (2011 SCMR 837) observed that mere oral assertion are insufficient to rebut documentary evidence, which hold greater weight and credibility. In Shamshad v. Arif Ashraf Khan and others (2010 SCMR 473) it was observed as under:-- "There is nothing to discuss that oral evidence could not be given preference over documentary evidence."

11. Article 103 of the Order 1984 exclude oral statements made between the parties to any instrument or their representative. The rationale behind this provision is that a written agreement reflects a deliberate and well considered settlement. Furthermore, a party acknowledging a fact in writing is protected from the potential issue of mischief, failure and memory lapses. Once an agreement has been reduced to writing, oral evidence is excluded when proving the terms, as against the terms specifically articulated in writing. Reliance is made on the cases titled Mst. Baswar Sultan v. Adeeba Alvi (2062 SCMR 326), Bolan Beverages (Pvt.) Limited v. PEPSICO INC and 4 others (PLD 2004 SC 860) and Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others (2014 SCMR 1217).

12. In the instant case, the gift mutation relied upon by petitioners Nos.2 and 3 indicates "non delivery" of the subject gift/land to the donees. The probability of the petitioners to establish their case before the Civil Court by producing oral evidence in presence of above documentary evidence would not enhance their case, therefore, impugned orders concerning petitioners Nos.2 and 3 are sustained. In view of the above, Constitutional Petition No.629 of 2023 is partly allowed and the impugned orders dated 29-04-2021, 12-09-2022 and 06-04-2023, passed by Collector/Settlement Officer, Quetta Region (respondent No.2), Additional Commissioner, Quetta Division (respondent No.3) and Senior Member Board of Revenue Balochistan (respondent No.4) are set aside to the extent of gift mutation entries reference No.2597 dated 25-03-2010 for land measuring 4712 in favour of Ghulam Mustafa (petitioner No.1). The aggrieved legal heirs of Dr. Noor Muhammad (late) are at liberty to seek their remedy before the plenary Jurisdiction of the civil court. The instant CP is dismissed concerning the second gift mutation reference No.7917 dated 03-05-2018 land measuring 4000 square feet. The parties are left to bear their own cost. MQ/163/Bal. Order accordingly.