2010 PLP 843 (MLD)

SH. AZMAT SAEED, J.

This Civil Revision is directed against the appellate judgment and decree, dated 25-11-2009 whereby the appeal filed by the respondents against the judgment and decree, dated 18-10-2007 was accepted.

2. Brief facts necessary for the adjudication of the lis at hand are; that the property in dispute was admittedly owned by one Ghulam Qader, the predecessor-in-interest of the parties. Apparently, few days before his death a mutation of gift was attested in favour of the petitioner in respect of the property in dispute. After the death of Ghulam Qader the respondents filed a suit for declaration and permanent injunction to call into question the alleged gift in favour of the petitioner. The suit was resisted. On the divergent pleadings of the parties the issues were framed and evidence was led. Whereafter, the trial Court seized of the matter vide judgment, dated 18-10-2007 dismissed the suit. Aggrieved respondents filed an appeal which failed to find favour and was dismissed vide appellate judgment and decree, dated 17-12-2008. Aggrieved, the respondents filed Civil Revision No.29 of 2009 which was accepted by this Court vide its judgment, dated 23-7-2009 whereby the appellate judgment and decree, dated 17-12-2008 was set aside and the case was remanded to the first appellate Court. After hearing the parties, the first appellate Court vide impugned judgment and decree, dated 25-11-2009 accepted the appeal filed by the respondents as a consequence whereof the suit filed by the said respondents was decreed and the gift declared as ineffective against their rights.

3. Counsel for the parties have been heard and record appended with this petition has been perused. It is contended by the learned counsel for the petitioner that in the plaint the factum of the gift was admitted and it was claimed that the mutation in respect thereof was invalid in view of mental ill-health of the deceased Ghulam Qader and allegedly the gift was effected during Marz-ul-Maut. Adds that additional plea has been raised that Ghulam Qader was suffering from intoxication at the time when the mutation was entered into. It is the case of the petitioner that on the evidence on record the respondents 'failed to prove through cogent evidence that Ghulam Qader was either suffering from any mental infirmity or was intoxicated at the relevant point of time. Also contended that the respondents have failed to prove that gift has been executed during Marz-ul-Maut. In fact, it is contended, that there is no finding in this behalf by either of the two courts. It is also the case of the petitioner that respondents are bound by their pleadings and cannot be permitted to prove a case not pleaded. In support of his contentions, learned counsel has placed reliance on Amir Shah v. Ziarat Gul (1998 SCMR 593), Mst. Hajra Bibi and another v. Mst. Maryam Bibi and another (2000 SCMR 1021), Abdul Jabbar and others v. Muhammad Jabbar and others (2002 SCMR 1173), Khalil Ahmad v. Abdul Jabbar Khan and others (2005 SCMR 911) and Abdul Mateen and others v. Mst. Mustakhia (2006 SCMR 50). Learned counsel for the respondents has controverted the contentions raised by learned counsel for the petitioner and has further contended that the mutation in question merely recorded a transaction which when disputed have required to be proved in accordance with law and onus in this behalf lay upon the petitioner who was the beneficiary of the transaction. It is added that the said transaction of gift has not been proved in evidence nor its ingredients established on the record. The entire exercise, it is contended, is suspicious having been entered into a few days before the death of the alleged donor whereby the heirs other than the petitioner have been excluded without any justification. It is also the case of the respondents that the admission being relied upon by the petitioner has already been held by this Court pertain to the mutation and not to the transaction of the gift vide remand order, dated 23-7-2009 and neither the first appellate Court could not travel behind the remand order nor can this issue be raised again at this belated stage. In support of his contentions, learned counsel has placed reliance on Adam Khan etc. v. Muhammad Sadiq (1995 MLD 506), Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245), Abdul Rahim and others v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346), Barkat Ali through Legal-Heirs and others v. Muhammad Ismail through Legal-Heirs and others (2002 SCMR 1938), Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana (PLD 2003 SC 849) and Rahmat Ullah and others v. Saleh Khan and others (2007 SCMR 729).

4. The matter came before this Court in civil revision adjudicated upon vide order, dated 23-7-2009 wherein it was clearly held in para.8 that no findings has been returned as to the existence or otherwise of the ingredients of a gift i.e. offer, acceptance and transfer of possession. It was further held that the mutation merely recorded the transaction, which needed to be proved independently. It was also observed that the so-called called admissions pertained to the mutation of gift and not the transaction. It was in the above perspective that the case has been remanded with the above observation. No doubt, the respondents could not prove that the donor Ghulam Qader was suffering from any mental infirmity or was intoxicated at the time when the mutation was entered and recorded. It was also not proved on record that the donor was suffering from Marz-ul-Maut at the time of alleged gift. The factum that a mutation of gift has been entered into in favour of the petitioner is obviously admitted what required adjudication in the facts and circumstances of the case whether the property in question was in fact and in law gifted to the petitioner. An over view of the judgments and authorities cited by the parties at the bar reveal that existence or absence of various factors may adversely affect the validity of the gift and the proof thereof. Where, as in the instant case gift is made to the exclusion of heirs the absence of or reason or justification, therefor, adversely affect the validity of the gift as has been held by the honorable Supreme Court of Pakistan in Barkat Ali's case (supra). Where, an oral gift is recorded through a mutation and the revenue officer attesting the same is not examined as a witness as in the instant case a serious doubt as to its validity would arise as has been held by the honorable Supreme Court of Pakistan in Abdul Rahim's case (supra). It has been noted that in the instant case only Patwari and not the revenue officer appeared as P.W.2. who stated that he did not have the thumb impressions of Ghulam Qader affixed for the purposes of effecting the mutation and that the mutation was recorded on the alleged statement of Ghulam Qadeer but he makes no mention of the acceptance of the alleged gift by the petitioner.

5. In the instant case the donee never entered the witness box tostate on oath that the property has been gifted to him or that he accepted the gift and the possession was transferred which fact also makes the transaction suspicious as held by the honourable Supreme Court of Pakistan in Abdul Rahim's case (supra).

6. Needless to say it is settled law that the mutation in itself does not conclude the matter in the absence of proof of the transactions as has been held by the judgment of honorable Supreme Court of Pakistan in Sher Baz Khan (supra).

7. The upshot of the above discussion is that the petitioner has failed to prove the transaction of gift as there was no reliable evidence of its ingredients i.e. offer, acceptance and transfer of possession. The fact that the mutation of gift was entered into a few days before the death of the donor does not help the petitioner. The donee never entered the witness box to prove the gift. The revenue officer also was never produced in evidence. The justification or reasons for excluding other heirs were also conspicuous by his absence. In this view of the matter the transaction of gift and its ingredients are not proved on record as has been correctly held by the first appellate Court vide the impugned judgment. No exception can be taken to the findings returned by the first appellate court which is in accordance with law. There is no material irregularity in the exercise of jurisdiction warranting interference by this Court. This civil revision being without any merits is dismissed. A.R.K./M-152/K Revision dismissed.