2016 PLP 1535 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The facts germane for the disposal of the instant civil revision are that the petitioner brought a suit for declaration regarding the disputed property fully mentioned in the body of the plaint with the assertion that he was owner in possession of the same and mutation of Tamleek No.133 dated 30.11.1991 (Ex:P6) and subsequent mutation of oral sale No.386 dated 17.3.1996 being illegal were in effective upon the rights of the plaintiff. It is also asserted in the plaint that although defendants No.1 and 2/respondents Nos.11 and 12 were his real sons, but he had also six daughters and he never made any declaration of Tamleek in favour of defendants No.1 and 2 and that mutation of Tamleek (Ex.P6) as well as subsequent mutations were liable to be cancelled. The said suit was contested by defendant No.1/ one of the alleged donnee and defendants Nos.3 to 5, who were subsequent vendees. The learned trial court captured the disputed area of facts by framing the following issues:-- "

1. Whether the plaintiff is in possession of suit property as owner and mutation of Tamleek No.133 dated 30.11.91 & mutation of sale No.386 dated 17.3.96 are against the law, against the facts, based on fraud, void and ineffective upon plaintiff's rights? OPP

2. Whether the suit is incorrectly valued for the purposes of court fee? OPD

3. Whether the suit of plaintiff is time barred? OPD

4. Whether the suit of plaintiff is liable to dismissal in view of preliminary objection No.2 of written statement? OPD.1

5. Whether the suit of plaintiff is not maintainable in its present form? OPD 3 to 5.

6. Whether the defendants Nos.3 to 5 are bona fide purchaser of suit property for consideration and without notice? OPD 3 to 5.

7. Whether the defendants Nos.3 to 5 have made any improvements over the suit property, if so, to what extent and with what effect? OPD 3 to 5.

8. Whether the plaintiff is stopped to file this suit by his words and conduct? OPD 3 to 5.

9. Whether the plaintiff has got no cause of action to file the suit? OPD 3 to 5.

10. Relief." After collecting the stock of evidence led by the parties, the suit of the petitioner was decreed by the learned trial court. Both the disputed mutations (Ex:P6) and (Ex:P7) were cancelled and respondents No.1 and 2/defendants Nos.1 and 2 were directed to make payment of Rs.1,00,000/- to the subsequent transferees/defendants Nos.3 to

5. Being aggrieved, the Tatters filed an appeal before the learned lower appellate court, who vide impugned judgment and decree dated 2.10.2004 while setting aside the judgment and decree dated 24.5.2003 passed by the learned trial court dismissed the suit filed by the plaintiffs, hence this civil revision.

2. It is argued by the learned counsel for the petitioner that the impugned judgment and decree passed by the learned lower appellate court is against the law and facts; that the learned lower appellate court without discussing the evidence available on file passed the impugned judgment and decree illegally and without lawful authority and that the beneficiary failed to prove the transaction of gift embodied in the disputed mutation as well as its valid attestation.

3. Conversely, the learned counsel for respondents Nos.1 to 11 has supported the impugned judgment and decree while refuting the arguments advanced by the learned counsel for the petitioner and also prayed for the dismissal of the instant revision petition. He relies upon the case law reported as "Muhammad Ishfaque through L.Rs. v. Ch. Muhammad Nawaz and others" (2008 SCMR 1095), "Rasheeda Begum v. Ghulam Ahmed and another" (2007 CLC 172), "Mir Muhammad alias Miral v. Ghulam Muhammad" (PLD 1996 Karachi 202) and "Chiragh Din v. Bakhat Bhari and 4 others" (2007 YLR 2941).

4. Arguments heard. Record perused.

5. The case of the petitioner is that he had neither made any declaration/offer to make a gift in favour of respondents/defendants No.1 and 2 nor he appeared before the concerned Patwari as well as the Revenue Office for the entry and attestation of disputed mutation and that he being illiterate old aged person had been deprived of his property by defendants Nos.1 and 2 while practicing fraud and misrepresentation. The plaintiff himself appeared as PW-1 and fully supported his stance. The defendants Nos.1 and 2 were beneficiaries. of the disputed gift mutation and heavy onus was upon their shoulders to prove the transaction of Tamleek which might have been settled at some prior point of time of attestation of disputed mutation. Out of the alleged donnees, only defendant No.1 submitted his contesting written statement and perusal of same reveals that he did not plead any date, time, place and the names of witnesses to explain that when, where and in whose presence the alleged offer to gift out the suit property had been made by the petitioner, which was accepted by them and followed by the delivery of possession of the suit property in lieu thereof. In the absence of giving details of such ingredients in the written statement, defendant No.1 remained fail from the very inception of the suit to prove the transaction of disputed gift.

6. By now, it is well settled principle that mutation per se is not a deed of title but merely an indicative of some previous oral transaction between the parties and keeping in view said principle whenever any mutation is challenged, then burden heavily lies on the shoulders of beneficiary of the transaction to prove the mutation as well as original transaction which he was required to fall back upon. In the present case only one of the attesting witness of mutation of Tamleek (Ex:P6) Muhammad Younis, Councilor (DW2) was produced by the defendants to prove its valid attestation, who deposed that he and his brother along with the parties of the mutation had appeared before the Tehsildar, who sanctioned the mutation on their (DW2 and his brother) attestation. DW2 further deposed that his brother had since died. The perusal of entire statement of DW2 reveals that he neither mentioned the date of attestation of the disputed mutation nor he uttered a single word that Allah Wasaya, the alleged donor had ever made any offer to gift out the suit property to the donees or that the latter had accepted the said offer in his presence. In the absence of two very basic ingredients of gift, the transaction could not declare to have been validly proved. It is also noteworthy that the plaintiff-petitioner while appearing as PW1 has levelled the allegation against DW3 that as he had refused to cast vote in favour of DW3 at the time of his elections for the seat of Councilor and due to said grudge DW-3 had made fictitious identification before the Revenue Officer. The said DW-3/the alleged identifier during the cross-examination stated that he did not remember the names of the Patwari or the Tehsildar, who had attested the mutation. So the testimony of said witness is not helpful to the beneficiary. DW-3 also deposed that the disputed mutation was attested at Shah Sadar ud Din whereas Ghulam Farid DW-2 one of the beneficiary deposed that the mutation was attested at D.G. Khan. The said contradiction cannot be treated minor or natural variation rather the same is sufficient to hold that the disputed mutation (Ex:P6) was got attested by practicing fraud and misrepresentation as none of the beneficiary or the attesting witnesses could prove the valid attestation of the same. Even otherwise the attestation of the disputed mutation by the two real brothers has also created serious doubt regarding its authenticity. In the present case the beneficiaries also failed to produce the concerned Patwari as well as relevant revenue officer, who had allegedly; entered and attested the same. The revenue officer as well as Patwari were the best persons, who could prove the valid attestation of Tamleek mutation, wherein, the alleged transaction of Tamleek was incorporated, but the said best evidence was with-held by the beneficiaries without showing any justification and inference under Article 129(g) of Qanun-e-Shahadat Order, 1984, has to be drawn against them. Even one of the donnees, namely, Ghulam Murtaza neither controverted the allegations levelled in the plaint by filing written statement nor he appeared in the witness box to prove the transaction of Tamleek. Moreover, Ghulam Farid, one of the alleged donnees while appearing as DW2 in his statement-in-chief deposed that the mutation of Tamleek was attested at Dera Ghazi Khan, which shows that the revenue officer committed material illegality while sanctioning gift mutation (Ex:P6) at a different place as he was bound to conduct the proceeding in a common assembly to be assembled in the concerned revenue estate. DW2 also did not utter a single word that the disputed property had been offered to him along with his brother as a gift by the petitioner, which was accepted by them and possession of the disputed property in lieu of alleged gift was transferred to them. It can safely be held that the beneficiaries badly failed to prove the ingredients of gift and due to such lapse the settlement of effecting transaction of gift and valid attestation of mutation cannot declare to have been proved.

7. The contention of learned counsel for respondents Nos.1 to 11 that they are bona fide purchasers for consideration and their transaction is fully protected, is misconceived. No evidence is available on record which could suggest that prior to alleged sale of property they had made any inquiry regarding the title of defendants Nos.1 and 2 in the I disputed property. In absence of such material evidence, the learned trial court while canceling mutations in dispute has already directed defendants Nos.1 and 2 to pay back the sale consideration received by them to defendants Nos.3 to 5/subsequent transferees and such part of the judgment has never been assailed by defendants Nos.1 and 2, which attained finality to their extent. The contention of the learned counsel for the contesting respondents/defendants that the petitioner-plaintiff had alleged fraud and he was bound to prove the elements of fraud by producing convincing evidence is misconceived for the reason that the moment, the plaintiff made a statement on oath as PWI, the onus was shifted upon the beneficiary to prove the valid attestation of the mutation. The case law referred by the learned counsel for respondents Nos.1 to 11 is not applicable to the facts and circumstances of the case, which runs on different footing. The impugned judgment and decree passed by the teamed lower appellate court is not sustainable in the eye of law which is based on misreading and non-reading of evidence and also against the principles settled by the superior courts on the subject.

8. Resultantly, the instant revision petition is accepted, impugned judgment and decree dated 2.10.2004 passed by the learned lower appellate court is set aside and the judgment and decree dated 24.5.2003 delivered by the learned trial Court is restored. ZC/A-123/L Revision allowed.