BASHIR Versus NOOR HASSAN
This judgment shall decide Civil Revision No.1349 of 1990 and Writ Petition No.3898 of 1991 as both these proceedings were ordered to be taken up and heard together. On 16‑11‑1978 the petitioners filed a suit against the respondents. In the plaint it was alleged that the land in suit is owned by the petitioners; that the land was acquired by the petitioners under the mutation of exchange No. 194 attested on 2‑8‑1967 whereafter they were coming in possession of the land; that the petitioners had not made any gift in favour of respondents Nos.1 and 2 but they managed to get Mutation No. 197 attested on 16‑9‑1967 purporting to be a‑ gift of a suit‑land by the petitioners in favour of respondents Nos.1 and 2; that the respondents Nos.1 and 2 have further sold away the land in favour of respondent No.3 by means of a registered sale‑deed dated 28‑9‑1978. Both the transactions were stated to be illegal. In their joint written statement the respopdents stated that the petitioners validly gifted away the land to respondents Nos.1 and 2. Regarding possession it was stated that petitioner No.3 has handed over the possession to respondent No.3 under an agreement, dated 28‑9‑1978. It was further stated that respondents Nos.1 and 2 have been friends in need of the I petitioners and out of gratitude they gifted away the land to respondents Nos.1 and 2. Following issues were framed by the learned trial Court:‑‑
(1) Whether the defendants Nos. 1 and 2 got suit‑land mutated in their favour on the basis of ' Hiba' vide Mutation No. 197, attested on 16‑9‑1967, fraudulently, if so, to what effect? O.P.P.
(2) Whether the sale‑deed, dated 28‑9‑1978 executed by the defendants Nos.1 and 2 in favour of the defendant No. 3 in respect of the suit? land is illegal void, collusive and fraudulently procured? O.P.P.
(3) Whether the suit is frivolous and vexatious and the defendants are entitled to special cost? O. P. P.
(4) Whether the plaintiff is in possession of the suit‑land? O.P.P.
(5) Whether the suit is incorrectly valued for the purposes of court‑fee if so, what is correct valuation? O.P.D.
(6) Whether the plaintiff has no cause of action against the defendants? O. P. D.
(7) Relief.
Evidence of the patties was recorded. The learned trial Court decreed the suit vide judgment and decree, dated 2‑7‑1989. The respondents filed a first appeal which was heard by a learned Additional District Judge, Kasur who allowed the same on 28‑1‑1990 and dismissed the suit of the petitioners.
2. Learned counsel for the petitioners contends that the respondents had miserably failed to prove a valid gift and of course the said mutation relied upon by them and that the learned Additional District Judge has resorted to misreading of evidence on record while reversing the findings of learned trial Court on Issue No.1. According to the learned counsel the impugned judgment and decree of learned Additional District Judge proceeds in contravention of the law declared on the subject by this Court as also the Supreme Court of Pakistan. Learned counsel for the respondents, on the other hand, contends that the respondents had proved a valid gift in their favour and consequently a valid sale in favour of respondent No.3 by respondents Nos.1 and 2. Also contends that even if there is some deficiency in the evidence the respondents be given a chance to make up the same now.
3. I have gone through the copies of the record, appended with this civil revision. Copy of Mutation No. 197 is available as Exh.P.1. According to this document, the Patwari entered the mutation on the statement of Din Muhammad, one of the donors on 16‑9‑1967. There is no reference to any report in the Roznamcha Waqiati nor there is any number of such a report mentioned in the mutation: On the same day it was put up before the Revenue Officer and according tithe order recorded by him on the mutation all the three petitioners, the donors as well as the donees were present and were identified by Ali Hussain Shah, Chairman, Union Council. He proceeded to attest the mutation accordingly. The only evidence in support of the gift and the mutation being relied upon by the respondents comprises of the statement of Noor Hussain Shah respondent as D.W.2. In his examination‑in‑chief he says that the petitioners were their Murids and that is why they gifted away the land to them. In cross‑examination he admits that I p the petitioners are not related to them; that they were residents of Sheikhupura and thus, they changed residing in Chunian. He admits that the Chairman, Ali Hussain Shah is the brother‑in‑law of Sakhawat Ali Shah. He expressed ignorance that Sakhawat Ali Shah had enmity with the petitioners and that several cases had been registered. Muhammad Din, one of the petitioners has entered the witness‑box as D.W.1 and has denied that the land was ever gifted to respondents Nos. 1 and 2. He also states that possession was never delivered and that they are continuing in possession. I find that it was not even suggested to this witness that they were Murids of respondents Nos. 1 and 2 and that they had gifted the land in gratitude. It has also not even been suggested to this witness that the petitioners had got the mutation Exh.P.1. entered or that they had appeared before the Revenue Officer in this connection.
4. To my mind, this is a case of no evidence in support of the gift being claimed by the respondents. This Court had laid down the criteria regarding the proof of a mutation in the case of Muhammad and others v. Sardul PLD 1965 Lah. 472 and to similar effect are the observations of the Supreme Court Pakistan in the case of Abdul Majeed and 6 others v. Muhammad Subahan and 2 others 1999 SCMR 1245.1 find that in the present case neither the Patwari who had entered the mutation nor the original mutation was produced. The Chairman who allegedly identified the G petitioners before the Revenue Officer had also not been produced and of course the Revenue Officer himself was not produced. There is thus, virtually no evidence on record of the gift and the said mutation being relied upon by the respondents.
5. Learned counsel then argues that the sale‑deed made by respondents Nos.1 and 2 in favour of respondent No. 3 was attested as a witness by Muhammad Din, one of the petitioners. It appears that this is same Muhammad Din who appeared as P.W.1. In the first instance I find that he was not confronted with the document allegedly attested by him and in the second cross‑examination was not carried forward to confront him that he was aware of the contents of the said document. It is well‑settled that a witness of a document cannot be attributed with the knowledge of the contents thereof and as such there is no concept of estoppel by attestation. Reference may be made to the case of Ashiq Hussain v. Nisar Ali and others 1969 SCMR 341.
6. Learned counsel then draws my attention of F.I.R. Exh.D.4. This F.I.R. is not relevant to the factum of gift but according to the learned counsel this F.I.R. states that the petitioners were tenants under respondents Nos. 1 and 2. I have not been able to discern any such fact in the said F.I.R. shown to me by the learned counsel for the respondents from his brief. However, I do find that P.W.1 was not confronted with the said document.
7. There is yet another aspect of the case. Learned trial Court has found it as a fact that the petitioners are continuing in possession of the suit?land and are in its physical possession. Before the learned Additional District Judge no cross‑objections were filed and neither were these findings challenged by the respondents in exercise of their right under Order XLI, Rule 22, C.P.C. To my mind the impugned judgment .of the learned Additional District Judge is a contradiction in terms apart from the apparent fact that it proceeds in direct contravention of the law laid down by this Court and the Supreme Court of Pakistan in the above‑referred cases.
8. Coming to the said prayer of the learned counsel for the respondents that his clients be now given a chance to prove the mutation and to lead evidence. Learned counsel refers to an earlier order passed by this Court on 24‑2‑1993 which gives an impression that hearing was commenced and his Lordship had summoned the original mutation and there is a mention of comparison of the thumb‑impression on the original mutation.
9. As stated by me above I have examined the said copy of mutation Exh. P.I. I find that the thumb‑impression purported to be those of the respondents appear on the top left hand corner of the document and there iv no explanation in the evidence as to why these thumb‑impressions were obtained on the said rather unusual portion of the document. I also find that D.W.2 although states that on the sale‑deed in favour of respondent No.3 Muhammad Din, petitioner had affixed the thumb‑impression yet he has not stated that on the mutation any of the petitioners had affixed their thumb ?impression. I may further state here that at the relevant time there was an express prohibition under the Land Revenue Rules and the Land Record Manual regarding obtaining of signatures or thumb‑impressions of the parties on the mutation. There is no evidence on record as to at what point of time the said thumb‑impressions were affixed on the said document. The order of attestation is absolutely silent that the thumb‑impressions of the petitioners have been obtained and why. In my humble opinion no useful purpose will be served by getting the said thumb‑impressions compared.
10. There is another significant aspect of the case. Even if it be assumed that the petitioners did affix their thumb‑impressions on the said mutation, in the facts and circumstances of the present case the respondents have failed to establish any reason as to why would the petitioners gift away there lands to respondents Nos.1 and 2. There is no relationship, the petitioners are Jats while respondents Nos.1 and 2 are stated to be Bukhari Syeds. Except the self‑serving statement of one of the respondents there is no evidence on record that the petitioners were the Murids of respondents Nos.1 and 2. Although pleaded yet no evidence has been led as to what was that obligation which the petitioners incurred because of the "EHSANAT" of respondents Nos.1 and 2 that led to the making of the gift. Although a gift is a gratuitous transaction but under section 25 of the Contract Act, 1872 it has to be for love and affection. In the present case also the respondents themselves have pleaded consideration for the gift i.e. their " EHSANAT " on the petitioners but they have failed to prove the same. Thus, the present is a transaction which is sans consideration and cannot be sustained even upon proof of it as a fact. (Reference case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
11. Accompanying Writ Petition No.3898 of 1991 had been filed by respondent No.3 to question the orders passed by the official respondents in the writ petition for Sapurdari of the crops and for proceedings against him for removal of the same Since the findings concurrently recorded by the learned Courts below have been upheld in the Civil Revision as to the actual possession of the petitioners a suit‑land, the writ petition has no force.
12. As a result of the above discussion Civil Revision No. 1379 of 1990 is allowed while Writ Petition No.3898 of 1991 is dismissed leaving the parties to bear their own costs.
H.B.T./B‑30/L ???????????????????????????????????????????????????????????????????????????????????? Order accordingly.