2007 PLP 601 (MLD)

MIAN SAQIB NISAR, J.

The noted Civil Revision No.882 of 2004 and Civil Revision No.883 of 2004 are being decided together, as both involve the common questions of law and facts.

2. The suit for the declaration and cancellation of two mutations involved in these matters, filed by the petitioners' predecessor, was partly allowed by the learned trial Court through the judgment and decree, dated 28-11-1987; the suit to the extent of cancellation of the gift Mutation No.176 in favour of Muhammad Yar was decreed, whereas qua the gift Mutation No.177 in favour of Ahmad Yar and Muhammad Sarwar was dismissed. The appeal filed by Muhammad Yar against the judgment and decree of the learned Civil Judge has been accepted and that of the petitioners against the judgment and decree in favour of Ahmad Yar etc., has been dismissed by the learned Additional District Judge vide judgment and decree, dated 13-5-1990.

3. Briefly, the facts of the case are that Muhammad Yar, Ahmad Yar (both deceased Mid now represented by their legal representatives) and Muhammad Sarwar are the sons of Hukam Khan. It was claimed by them that their father vide two Mutations Nos. 176 and 177, dated 31-10-1973 gifted the land measuring 38 Kanals and 15 Marlas in favour of Muhammad Yar (through Mutation No. 176), and 133 Kanals and 1-Marla in favour of Ahmad Yar and Muhammad Sarwar (through Mutation No.177) and also delivered the possession of the gifted land to them. Hukam Din on 17-5-1976 filed a suit for the declaration claiming himself to be the owner of the suit property and challenged both the gift mutations. The donees defended the matter, issues were framed, parties were put to trial and as mentioned earlier, through the judgment and decree, dated 28-11-1987, the learned Civil Judge decreed the suit to the extent of Muhammad Yar and the mutation in his favour was annulled, whereas the other mutation in favour of Ahmad Yar and Muhammad. Sarwar was declared valid and to their extent, the suit was accordingly dismissed. Both the sides aggrieved, filed appeals and the appeal of Muhammad Yar has been accepted and that of the present petitioners (who are the successors-in-interest of Hukam Din) has been dismissed.

4. Learned counsel for the petitioners contends that both the Courts below have grossly misread the evidence on the record and have misapplied the law. It is further stated that the Mutation of gift by itself is no proof of the transaction, but is only a manifestation; no evidence at all has been led by the respondents to prove as to where; when and in whose presence, the gift was offered by Hukam Din and accepted by the donees. He has further stated that both the Mutations Nos. 176 and 177 were allegedly got entered by Hukam Din on, 31-1-1973; both were. sanctioned the same clay; Mutation No.176 through Ghulam Hussain, the so-called attorney of Hukam Din, whereas in Mutation No.177, Hukam Din was allegedly present before the Tehsildar; the power of attorney on the basis of which Ghulam Hussain made a conceding statement acknowledging the gift on behalf of Hukam Din, was not in existence on 31-1-1973, but is a document which was allegedly executed on 1-2-1973 by Hukam Din and was got registered the same day i.e. 1-2-1973, therefore, Ghulam Hussain was an unauthorized person, who could not acknowledge the gift on behalf of Hukam Din and accept the sanction of the mutation. It is further argued that the timing involved in this case is very important, and it is most improbable that everything happened the same day.

5. Conversely, the learned counsel for the respondents has argued that there is no misreading and non-reading of the evidence by the Courts below, as the Courts have properly appreciated the evidence and upon appraisal thereof, have given a factual finding, which should not be interfered in the revisional jurisdiction. It is stated that D.W.1 is a school teacher, who is an independent witness and claims to be present on 31-1-1973 at the time when the mutations were sanctioned and no partiality or prejudice etc. can be attributed to him. It is also argued that subsequent to Mutations Nos. 176 and 177, the donees also got attested Mutations Nos. 179 and 180 on 19-2-1973 in favour of Hukam Din in order to keep his eligibility as a Lambardar intact and they also promised through Iqrarnama (Exh.P.6) that they shall pay to their father a sum of Rs.300 as his "Guzaara Allowance". Lastly it is submitted that Hukam Din had married five times and it is his last wife Mst. Hussain Bibi, who having no male issue has instigated Hukam Din to file the present suit; Hukam Din has been alive for about two years after the institution of the suit, but never come forward to depose against the petitioners, because he knew fully well that he had validly made the gifts and executed the power of attorney in favour of Ghulam Hussain.

6. I have heard the learned counsel for the parties. As far as both the mutations are concerned, these are claimed to have been got entered with the Patwari by Hukam Din himself and at that time, the donor was identified by Fateh Muhammad Lambardar. Fateh Muhammad was not produced as he is stated to have died, but Hukam Din himself was the Lambardar and thus, in order to prove that he had got the mutations entered with the Patwari, who definitely would know the man, should have been examined, but this has not been done and this omission has not been explained. Mutation No. 176 was got attested by Ghulam Hussain as an attorney of Hukam Din on the basis of the power of attorney (Exh.P.8) but on that day, he was not the attorney of Hukam Din. This is so clear from the document itself, which was executed on 1-2-1973, presented before the Sub-Registrar the same day at 2 o'clock and was got registered on the said date. So a subsequent power of attorney could not be considered a valid authority for an event which has already passed. Besides, Hukam Din, according to the sanction of Mutation No.177, was present at that time; both these mutations are simultaneous and if he was present for the sanction of the one, what was the necessity of getting the other mutation acknowledged and sanctioned through the attorney. This clearly shows that Hukam Din was not there and in order to support the gift, the evidence was being created about the attorneyship of Ghulam Hussain, who was not even the attorney on that date. For the sanction of both these mutations, "Pattidar" of the village, who also identified Hukam Din at the relevant time, has not been examined and again for this omission, no explanation has been given. None has come forward from the Revenue staff such as Patwari and the Tehsildar to state if Hukam Din had made the gift in favour of the respondents/donees, had got the mutations entered and appeared before the Tehsildar in connection with the attestation of one of the mutations. The day, the date, the month, the timing and the venue has not been established through the independent evidence. The mutation, as mentioned above, is not the proof of the gift, but only a manifestation thereof and the ingredients regarding the proof such as offer and acceptance and also about the delivery of possession have not been established. The donor himself during his lifetime had challenged the gift on coming to know about the same. All these vital aspects of the case have not been considered by the two Courts below and obviously, the decisions are based upon misreading and non-reading of the evidence, which cannot sustain.

7. As regards the statement of D.W.1 is concerned, his presence at the time of mutations is highly doubtful; he has not explained the purpose of his presence there; he states that he took off from the school, but what for is not established on the record, therefore, the testimony cannot be given much credence in the matter. In the light of above, by allowing these revision petitions, the c impugned judgments and decrees are set aside and the suit of the petitioners' side is decreed with costs throughout. S.A.K./A-4/L Revision accepted.