2014 PLP 878 (MLD)

SYED AFSAR SHAH, J.

This civil revision is directed against the judgment dated 8-1-2011, passed by learned District Judge, Lakki Marwat whereby the appeal filed against the judgment and decree dated 11-2-2012, rendered by learned Civil Judge-I, Lakki Marwat, was dismissed.

2. Briefly stated the facts of the case are that on 2-1-2008 Faizullah Khan since dead and now represented by his legal heirs filed a suit against Naimatullah and two others for declaration to the effect that he is owner in possession of the land in dispute and as such the gift mutation bearing No.55 dated 28-6-1993 purported to have been attested on his behalf in favour of defendant No.1 is wrong, illegal, the result of fraud and collusion and ineffective upon his rights. He has also disputed the subsequent mutations attested by defendant No.1 in favour of defendants Nos.2 and 3.

3. When summoned by the learned lower court, defendant No.1 contested the suit, inter alia, on the ground that being donee of the land in dispute he is in its possession since 1993.

4. In view of the allegations and assertions of the parties, the learned lower court recorded their evidence for and against and on 11-2-2010 the suit of the plaintiff/ respondent was decreed by the learned Civil Judge-I, Lakki Marwat, which judgment was impugned by the petitioner in the Court of learned District Judge, Lakki Marwat, but there he also met the same fate as the learned appellate forum dismissed the appeal, vide judgment dated 8-1-2010 and hence, this revision petition.

5. I have heard the arguments of learned counsel for the parties, gone through the record appended with the petition and perused the relevant law on the subject as well.

6. It appears from the record available on file that on 28-6-1993 gift Mutation No. 55 was attested on behalf of Faizullah Khan respondent/plaintiff in favour of Naimatullah petitioner/ defendant in respect of certain landed property situated in the local limits of moza Hayat Khel, Lakki Marwat. After attestation of the gift mutation in favour of Naimatullah, the donee made transfer of some portion of suit land to Tahir Majeed and Barkatullah defendants Nos. 2 and

3. The plaintiff has questioned the attestation of the gift mutation, as according to him it is factitious, the result of fraud and collusion and that he has never been appeared before the revenue officer in connection with attestation of the gift mutation.

7. The defendant/donee, as stated earlier, has denied the same. According to him he is in possession of the property in dispute since 1993 as donee. The plaintiff/ respondent in support of his claim in addition to himself has got examined Patwari of the circle, who produced relevant revenue record in respect of the suit land. Appearing as P.W.2, the plaintiff has stated in support of the contents of his plaint. He has categorically stated that he has not gifted the suit property in favour of petitioner/ defendant No.

1. According to him the impugned gift mutation is the result of fraud and connivance between the petitioner and the revenue officers/officials.

8. As against that Naimatullah Khan the petitioner defendant has got examined himself as DW-1, and according to him he has been given the land in dispute on the basis of gift Mutation No.55. Copy of which as Exh.P.W.2/3, is available on file. He has also stated about the factum of possession, which according to him has been delivered to him. With respect to the attestation of impugned gift mutation, he stated that the donee has appeared before the revenue officer and as such has not only recorded his statement but also has put his thumb impression on it.

9. Here it is pertinent to note that except solitary statement of the donee Naimatullah Khan, he has neither produced witnesses of the impugned mutation nor the revenue officer/official. Under the Islamic Law it is the first and foremost responsibility of the donee to prove the factum of gift along with all of its ingredients i.e. offer, acceptance and delivery of possession of the property under the gift through independent and confidence inspiring evidence. Onus lies heavily on him (Donee) to prove beyond any doubt the execution of document of gift. Ref. "Allah Diwaya v. Jaj Subhai 1989 ALD 260(2).

10. While going through the record of the case one could reach to an irresistible conclusion that the petitioner has neither produced the witnesses of impugned mutation nor the revenue officer/ official. During the court statement, he stated that the witnesses of the mutation had gone on Tableegh and as such were not available in their village. The non-availability of the witnesses to the gift mutation, if at all, is admitted, the question arises that what about the revenue officer before him the donor, as alleged by the donee, appeared, recorded his statement in as much as put his thumb impression. In order to prove his version, the petitioner ought to have produced the Revenue Officer, because mere attestation of mutation in his favour would not confirm any right or title.

11. So far as the factum of delivery of possession in pursuance of the impugned gift mutation is concerned, it is concurrently decided against the donee and again in the attending circumstances of the case, it appears to be doubtful. The petitioner/donee has failed to prove the gift being valid and genuine alienation in his favour. Wisdom is also derived from a case-law "Ayub Khan and another v. Mst. Maknoon" (2010 CLC 870 Peshawar), wherein it is held that:-- "The law of the land on the subject is well established and settled that whenever an illiterate, old age person, pardanashin lady or female issue of a Muhammadan is deprived of her properly through sale, exchange, gift, inheritance etc., them in such-like situation, the beneficiary of the transaction, whether the same is effected through mutation, registered deed or the same is oral, would legally be required to prove its genuineness. Besides, he would also be required to prove with confidence-inspiring evidence that the same was the result of free and independent advice of the person parting with the property etc. In case of gift besides it's proof the beneficiary would also be required to prove the factum of gift along with all of its ingredients i.e. offer, acceptance and delivery of possession of the property under gift through independent and confidence-inspiring evidence. Factum of fraud, no doubt is a fact to be proved by the person alleging the same but in such like circumstances the mere assertions in pleadings and evidence of the above stated facts are sufficient to discharge their burden and then the beneficiary in rebuttal of the same has to prove the genuineness of the transaction in their favour as discussed above."

12. Moreover, the petitioner has failed to refer to a piece of evidence, which has been misread or not read in its true perspective by the two courts below.

13. In view of above and in the absence of any jurisdictional defect in the exercise of jurisdiction by the two courts below concurrently, I see no ground to disbelieve the same, resultantly the revision petition stands dismissed. No order as to costs. AG/58/P Revision dismissed.