BASHIRAN BIBI Versus ZAIB UN NISA

CH. MUHAMMAD MASOOD JAHANGIR, J.--- Verily Muhammad Saee, real brother of respondents Nos.1 and 2 was owner of subject property and eleven to tweleve days prior to his death, oral sale mutation No.3556 was got entered on 03.06.2009, which was attested on the very next day against a consideration of Rs.800,000/- in favour of present petitioner, but thereafter on 15.06.2009, as per death certificate (Exh.P4) the alleged vendor passed away without any issue. Within next three months, the respondents Nos.1 and 2 sisters of the vendor brought a declaratory suit while claiming that Muhammad Saee suffering from Marzul Maut, whereas the petitioner to usurp the valueable property managed to transfer the subject property in her name through impugned mutation, which being outcome of fraud, misrepresentation, collusiveness and without consideration was liable to be cancelled, despite the suit was contested by the petitioner, but both the Courts below concurrently decreed it through judgments dated 27.03.2015 and 05.05.2016 respectively. Hence the instant civil revision.

2. Heard and record scanned.

3. The pivotal question involved in the lis in hand is, whether any transaction with regard to the subject property had been effected among the parties prior to attestation of mutation (Exh.P 1). There is no other saying that it is a document, which neither creates right nor title in the immovable property and heavy onus rests on the beneficiary not only to prove its attestation, but also to establish original transaction reflected therein. There will be no second saying that attestation of mutation is a subsequent stage, whereas prior to it the transaction must have been effected among its parties and as per principle of "secundum allegata et probata", the essential detail with regard to settlement of transaction pertaining to time, month, venue and names of witnesses to prove that when, where and before whom it was struck are to be detailed by the beneficiary in his pleadings, so that it could be proved latter on. The perusal of record unfolds that in para No.3 of the written statement it was only disclosed that transaction through payment of Rs.800,000/-was struck before the witnesses on 04.06.2009, but no further detail therein was provided by the petitioner. It is well settled up till now by the apex Court that oral sale mutation being a document involving financial obligation has to be proved as per modes provided under Article 79 of the Qanun-e-Shahadat Order, 1984. What are its requirements for proving such a document, can be understood by reading it, which is reproduced hereunder:--

If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the executant of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

This provision explicitly lays down that such a document can only be used as evidence until two attesting witnesses, at least, have been called for the purpose of proving its contents, execution and construction, but nothing short of it can even be imagined for proving the same and if beneficiary fails to examine required number of witnesses to prove it in accordance with requirements of law, such failure in absence of any plausible explanation, will also give rise to an adverse presumption against him under Article 129 illustration (g) of the Order ibid.

4. The study of impugned mutation (Exh.P1) affirms that it was, attested by Faiz ul Hassan, Lumberdar as well as Muhammad Ijaz and out of them only the former being DW2 was examined, whereas the latter was withheld without any explanation, moreover, DW2 admitted in his cross-examination that:--

It is also not deposed by Gul Nawaz, Patwari DW3 and Abdul Wakeel Humayun, Revenue Officer (DW4) that sale consideration was paid in their presence. No other independent witness was examined to prove the said vital ingredient of sale. A solitary statement of petitioner (DW 1) without any corroboration is available on record, who deposed that three months ago the entire sale consideration was paid to the alleged vendor. Had the payment been made three months prior to the entry of the mutation, then why any agreement or receipt was not executed on that point of time and there was no reason to delay the attestation of the impugned mutation for such a long period. The other backdrop of the case was that petitioner admitted in her deposition that mutation was attested in the office of the Revenue Officer whereas the latter was required to attest the same in common assembly to be convened in the concerned Revenue Estate and mutation (Exh.P1) being militant to the basic provision cannot sustain in the eye of law. Reliance can be placed upon case law cited as Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and others (1993 CLC 1374), Ghulam Hussain and others v. Imam Bakhsh and 9 others (1995 MLD 1165) and Qasim Ali v. Sher Muhammad (2007 YLR 1770).

5. The petitioner as well as his supporting witness Faiz ul Hassan admitted in their cross-examination that the vendor was physically incapacitated person, whereas the witnesses of respondents also succeeded to establish through their testimonies that he was on the death bed when impugned mutation was sanctioned. The contention of the learned counsel for petitioner that plaintiffs were under obligation to prove that at the time of attestation of mutation the vendor was suffering from death illness, but they failed to prove the said fact is not tenable. Marzul Maut means that person aggravated with a disease apprehended that death was more probable than chance to live, which fact stood proved by PWs through oral evidence duly supported by death certificate (Exh.P4) according to which the vendor died within 11/12 of the attestation of impugned mutation. In such facts and circumstances, both the Courts below were quite justified to decree the suit through the impugned judgments on the valid reasons after well appreciation of the evidence on the record.

6. The learned counsel for petitioner is unable to point out any irregularity or illegality as well as misreading and non-reading of evidence committed by the Courts below while passing the impugned judgments to be interfered with by this Court in exercise of revisional jurisdiction, hence this civil revision being devoid of any merit is dismissed accordingly.

ZC/B-7/L Revision dismissed.