2003 PLP 1529 (CLC)

(1) Whether the plaintiffs are successors-in-interest of Pathana deceased and as such are entitled to inherit 3/4 share in legacy, if so, to what extent? OPD (2) If Issue No. 1 is proved whether Mutation No. 1735 dated 8-9-1985 is illegal, against the facts, based on fraud, collusion and misrepresentation and ineffective on the rights of the plaintiffs? OPP (3) If Issues Nos. 1 and 2 are proved whether the plaintiffs are entitled to a decree for possession of 3/4 shares through partition? OPP (4) Whether the suit is not maintainable in its present form? OPD (5) Whether suit is .not correctly valued for the purpose of court-fee and jurisdiction if so what is correct valuation of the suit? OPD (6) Whether the suit is mollified and the defendant is entitled to recover Rs.5,000 from the plaintiffs as special costs? OPD (7) Whether the suit is bad for misjoinder of cause of action? OPD (8) Whether Pathana deceased gifted the suit property to the defendants? OPD (8A) Whether the impugned gift was made during Marz-ul-Maut by the above said Pathana? OPP (9) Relief. The learned trial Court decreed the suit vide judgment and decree dated 19-3-1991. The late respondent Mst. Rasoolan being aggrieved filed appeal before the learned Additional District Judge, Mandi Bahauddin who accepted the same vide judgment and decree dated 17-10-1995. Hence the present revision petition.

2. Learned counsel of the petitioner submits that petitioner had taken a specific stand qua the ailment of the original owner in contents of the plaint. The contents of the plaint were proved by producing P. W.1 Mst. Sardaran, P.W.2 Muhammad Yar and P.W.3 Jahan Khan who had stated in their examination-in-chief qua the ailment of the original owner. The respondents did not cross-examine the aforesaid witnesses. Therefore, the statements of P.W.1, P.W.2 and P.W.3 were accepted as gospel truth. The trial Court was justified to take notice of this fact as is evident from paras. 6 and 7 of the judgment of the trial Court. The judgment of the trial Court is in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-- Naseer Ahmed v. Arshad Ahmad PLD 1984 SC 403, Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974, Mrs. J.C. Rehman v. Mrs. Sultan Ahmad 1985 CLC 2271, Muhammad Sadiq v. Fakhari Pasha 1985 CLC 2211, Luqman v. Yar Muhammad 1985 CLC 2327, Mst. Sikandar Jan v. Abdul Ghani 1985 CLC 2582, Syed Iqbal Ahmad v. Mst. Sarwari Begum PLD 1967 Lah. 1138 and Mst. Mahmood Khatoon v. Muhammad Khan 2000 YLR 534(2). He further urges that gift was executed through the impugned mutation by the original owner in favour of his wife during Marz-ul-Maut. Therefore, impugned gift/mutation is not sustainable in the eyes of law in view of para.139 of Mohammadan Law by D.F. Mulla and the law laid down by the superior Courts. In support of his contention he relied upon the following judgment:-- Rashid-ud-Din v. Nazir-ud-Din AIR 1929 Lahore

721. He further urges that D.W.2 Jehana is an interested witness who purchased land from the original owner measuring 3 Kanals, 12 Marlas for consideration of Rs.22,

000. One of the petitioners had filed a suit for pre-emption against him before filing the present suit by the petitioners. He further urges that Lambardar of the Village was also not produced before the Revenue Officer at the time of sanctioning the impugned mutation. He further submits that P.W.1 to P.W.3 had taken a definite stand that original owner was not in a position to appear before the Revenue Officer but this fact was not considered by the First Appellate Court in its true perspective. The respondents also did not cross-examine the aforesaid witnesses to this extent. He further submits that First Appellate Court reversed the findings of the trial Court without meeting the reasoning of the trial Court. He further submits that respondent did not accept the gift as is evident from her statement.

3. Learned counsel of the respondents submits that statements of P.W.1 to P.W.3 are contradictory in nature as is evident from their statements qua their visit as is depicted from their examination-in-chief. They stated following time period to visit the original owner during his ailment:-- (i) Two months, (ii) 20/25 days and (iii) 10/12 days. The impugned mutation was sanctioned by the Revenue Officer on 8-9-1985 on the request of the original owner whereas original owner died on 14-10-1985 i.e. after one month and six days. He further submits that presence of P. W.1 to P. W.3 at the house of the original owner was not proved by the aforesaid witnesses as is observed by the First Appellate Court in para.9 of the impugned judgment. He further submits that original owner had gifted the land in question in favour of late Rasoolan Bibi respondent in lieu of her services rendered to Pathan who was her husband. Late Mst. Rasoolan Bibi appeared as D.W.1 who stated in her statement that her husband had gifted the land in question in her favour and her husband personally appeared before the Revenue Officer at Kuthiala Sheikhan for attestation of mutation of gift. The original owner and his wife lived together. Therefore, possession was automatically transferred to Mst. Rasoolan Bibi in view of para. 152(3) read with para. 153 of Mohammadan Law by D.F. Mulla. He further submits that D.W.2 is real uncle of the petitioners who had given statement against them. Therefore, First Appellate Court was justified to reverse the finding on Issues Nos. 8 and 8-A with cogent reasons. He further submits that possession of the land in question is still with the legal heirs of Mst. Rasoolan Bibi respondent. He further submits that First Appellate Court had reversed the finding of the trial Court with cogent reasons as is evident from para.9 of the impugned judgment. He further submits that learned counsel of the petitioners failed to point out any material illegality or infirmity in the impugned judgment of the First Appellate Court. The First Appellate Court was justified to reverse the findings of the trial Court which were not based on true appreciation of evidence on record. He further submits that petitioners did not take a specific stand in the contents of the plaint that original owner had gifted the land in question during Marz-ul-Maut. He further submits that petitioners had abandoned the claim qua the residential house as is evident from the judgment of the trial Court and the impugned judgment. Therefore, the petitioners are estopped to wriggle out from this position on the well known principle of estoppel and waiver. The petitioners accepted the impugned mutation to the extent of residential house whereas the petitioners denied the factum of impugned mutation qua agricultural land.

4. Learned counsel of the petitioner in rebuttal submits that residential house had since been gifted through the impugned mutation to mosque. Therefore, the petitioners did .not challenge the vires of impugned mutation keeping in view the pious purpose.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. It is better and appropriate to reproduce the examination-in-chief of P. W.1 to P. W.3 to resolve the controversy between the parties:-- It is admitted fact that aforesaid witnesses were not cross-examined by the respondent/defendant with regard to the ailment of the original owner. It is settled proposition of law that if a specific assertion made by the witnesses material to the controversy of the case is not challenged in cross-examination by putting contrary suggestions then the same is to be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence as per pronouncement of the Supreme Court in case of Mst. Noor Jehan Begum 1991 SCMR 2300. Reliance is also placed on Luqman's case 1985 CLC 2327. But the question arises whether that portion of the examination-in-chief of aforesaid witnesses is material to come to the conclusion that the mutation/gift in question was executed during Marz-ul-Maut or not. The question, therefore, arises what is Marz-ul-Maut. In the explanation appended to para.135 of Mulla's Mohammeden Law it is stated that a Marz-ul-Maut is malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. In Jehan Khan's case PLD 1951 Lah. 433 it was held by the Division Bench of this Court that "the Court in all these cases is to find out the state of mind of the-deceased in order to ascertain whether them was such a preponderance of apprehension of death at the time of execution of the deed in question that the death seemed to him more probable than life". In Fatima Bibi's case (35 IA 67) their Lordships of the Privy Council laid down that the right test is whether the deed of gift was executed by the donor under apprehension of death. In Abdul Ahad Khan's case ILR 12 Lahore 683 a Division Bench of this Court laid down the following tests for determining whether the donor was suffering from Marz-ul-Maut: (i) that the donor was suffering at the time of deposition from a disease which was the immediate cause of his death; (ii) that the disease was such as to engender in him the apprehension of death, and (iii) that the illness incapacitated him from the pursuit of his ordinary avocation and prevented him from saying his prayers while standing. Hon'ble Supreme Court considered the aforesaid proposition of law in Noor Muhammad Khan's case PLD 1994 SC 650 and laid down following principles:-- (i) Was the donor suffering at the time of gift from a disease which was the immediate cause of his death? (ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, 1 or to engender in him the apprehension of death? (iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations

a circumstance which might create in the mind of the sufferer an apprehension of death? (iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?" It is also settled principle of law where a party maintains that no gift-deed was ever executed onus lies on person asserting that gift-deed was validly executed in view of Articles 119 and 122 of the Qanun-e-Shahadat Order, 1984. In arriving to this conclusion I am fortified by the following judgments:-- Qabool Muhammad Shah's case 1992 MLD 833, Shamshad Ali Shah's case PLD 1964 SC 143, Muhammad Akram's case 1994 CLC 185, Hakim Ali's case 1994 SCMR 1939. The petitioners brought on record sufficient material as mentioned above from the operative parts of the examination-in-chief that the original owner of the land in question/donor was not in senses. It is pertinent to mention here that the respondent/defendant failed to cross-examine the aforesaid witnesses qua the aforesaid portions of the examination-in-chief. It is admitted by the D.Ws. that age of the donor was 65 years, mutation was sanctioned in Village Ruthiala Sheikhan whereas the land is I situated in Village Khai, donor was also resident of Village Khai, Patwari of both the villages are different. The respondents did not produce Revenue Officer to prove the factum of impugned mutation and gift. Therefore, inference can be drawn against the respondent/defendant. In arriving to this conclusion I am foKtified by Mst. Ghulam Sughran's case PLD 1986 Lah. 194 and Muhammad Bukhsh's case 1983 SCMR

988. It is also settled principle of law that the First Appellate Court has to reverse the finding of the trial Court after meeting the reasoning of the trial Court as per principle laid down by the Hon'ble Supreme Court in Madan Gopal's case PLD 1969 SC

617. The First Appellate Court did not advert to the reasoning of the trial Court in impugned judgment. The judgment of the First Appellate Court is in violation of the law laid down by superior Courts in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 to cover cases where decision on facts is based on no evidence, inadmissible evidence .or so perverse as to cause grave injustice would result therefrom. The First Appellate Court has committed material irregularity.' This Court has 1 ample jurisdiction to disturb the findings of fact in such a situation while exercising power under section 115, C.P.C. as per the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case 1988 SCMR

851. It is pertinent to mention here that statement of the respondents/defendants are contradictory in nature and failed to prove the contents of the impugned mutation of gift in terms of law laid down by the superior Courts in the aforesaid judgments. In view of what has been discussed above, this revision petition; is accepted with no order as to costs. Resultantly judgment of the First Appellate Court is set aside and judgment of the trial Court is upheld. The respondent is also entitled to portion of the property in question in accordance with Injunctions of Islam. The Revenue Authorities are directed to sanction the mutation of inheritance of the original owner in accordance with Injunctions of Islam. S.A.K./S-641/L Petition accepted.