P L D 2005 Supreme Court 343 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioners seek leave to appeal from judgment dated 11‑10‑2004, passed by a learned Single Judge of the Peshawar High Court, Peshawar in Civil Revision No. 1106 of 2004.

2. The petitioners instituted, before the Senior Civil Judge, Swabi, a civil suit seeking declaration and title over the suit property based on the gift mutation dated 17‑9‑1955 in that the suit‑land had been alienated by Muhammad Jan and Ghulam Muhammad Khan in favour of their predecessor‑in‑interest, late Ghulam Hussain. The petitioners also called in question the validity of Mutations Nos.12122 and 12123 dated 11‑4‑1964 whereby the suit‑land was transferred by the same donors Muhammad Jan and Ghulam Muhammad Khan in favour of the respondent, by way of gift. The earlier mutation dated 17‑9‑1955 in favour of Ghulam Hussain, the predecessor-in‑interest of the petitioner, was not reflected in the record of rights whereas the subsequent mutations 11‑4‑1964 were incorporated in the subsequent Khasra Girdwari and Jamabandies. The Senior Civil Judge and the Additional District Judge, Swabi, by judgments and decrees dated 9‑6‑2003 and 19‑6‑2004 respectively dismissed the civil suit and appeal of the petitioners. Therefore, they filed Civil Revision No. 1106 of 2004 which was also dismissed by a learned Single Judge of the Peshawar High Court, Peshawar, by the impugned judgment dated 11‑10‑2004. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner vehemently argued that the authenticity and genuineness of gift Mutation No.8609 dated 17‑9‑1955 could not be brushed aside merely on the ground that the same was not incorporated in the subsequent Jamabandis as the factum of gift in favour of the predecessor‑in‑interest of the petitioners was duly proved. It was further submitted that the presumption of truth was attached to the entries of gift mutation dated 17‑9‑1955 under section 44 of the Punjab Land Revenue Act, 1887. The essential ingredients of gift of the suit property were satisfied in case of the petitioner whereas the subsequent mutations dated 11‑4‑1964 were void as the donors had already divested themselves of any title or right in the suit property. The learned counsel next contended that No.8609 dated 17‑9‑1955 being a public document of more that presumed to be genuine in view of Article 100 of the Qanun-e-Shahadat, 1984. Reliance was placed on Durwaish v. Haji Muhammad Hussain (1999 CLC 106). It was lastly submitted that the impugned judgment of the High Court as well as judgments and decrees by the Courts below suffered from misreading and non‑reading of evidence produced by the parties.

4. We have heard the learned counsel for the petitioners at some length and also gone through the available record. We find that Mutation No.8609 dated 17‑9‑1955 was not reflected in the Khasra Girdwaris or record of rights (jamabandis). Even otherwise, the mutation does not show the delivery of .possession of the suit property from the alleged donors to late Ghulam Hussain. The report allegedly made to the Halqa Patwari on 13‑8‑1955 is silent in that behalf. On the other hand, the factum of gift Mutations Nos.12122 and 12123 dated 11‑4‑1964 in favour of the respondents by the donors were not challenged by the petitioners. The same were incorporated in the subsequent Khasra Gardawaris as well as the record of rights showing the transfer of possession of the suit property in favour of the respondents pursuant to gift of the property by Muhammad Jan and Ghulam Muhammad Khan. Needless to mention that presumption of correctness is attached to the entries of record of rights properly maintained by the Revenue Authorities. The mutation attested by the Revenue Authorities by itself is not a sufficient proof or evidence of title. Reference may be usefully made to the cases of Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462), Hakim Khan v. Nazeet Ahmad Lughmani and 10 others (1992 SCMR 1832), Nasrullah Khan v. Rasul Bibi (2001 SCMR 1156), Jamsher and others v. Abdul Jalil and others (PLD 1964 (W.P.) Peshawar 159), Manzoor Ahmed Sahi v. P&T Co‑Operative Housing Society Ltd, Karachi (PLD 1962 (W.P) Karachi 476), (Thakur) Nirman Singh and others v. (Thakur) Lal Rudra Partab Narian Singh and others (AIR 1962 PC 100), Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346), Abdul Majeed and 6 others v. Muhammad Sughan and 2 others (1999 SCMR 1245) and Muhammad and others v. Sardul (PLD 1965 Lahore 472).

5. The proceedings taken by the Revenue officer are not considered to be proceedings by a Court of law. It was held in the case of (Thakur) Nirman Singh and others (supra) that a mutation could not even by considered as an instrument within the meaning of Articles 14 and 91 of the Limitation Act. In our opinion, the petitioners had failed to prove the genuineness or authenticity of the Mutation No.8609 dated 17‑9‑1955 as well as the factum of gift in favour of their predecessor‑in‑interest. The High Court was justified in taking the view that the provisions of Article 100 of the Qanun‑e‑Shahadat, 1984, were not attracted to the facts and circumstances of the present case. The respondent had succeeded, in proving gift of the suit property in his favour with all its necessary ingredients. All the three Courts have recorded concurrent findings of fact on the proper appreciation of evidence on record to which no exception can be taken. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. This is not a fit case for grant of leave to appeal.

6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. S.A.K./F‑28/S Leave refused.