Mst. DARAN BIBI alias SARDARAN BIBI Versus MUHAMMAD AKBAR

CH. MUHAMMAD IQBAL, J.---- Through this civil revision, the petitioners have challenged the validity of judgment and decree dated 15.01.2013 passed by the learned Civil Judge, Pakpattan Sharif whereby suit for declaration along with permanent injunction filed by the petitioner was dismissed and judgment and decree dated 28.12.2015 passed by the learned Additional District Judge, Pakpattan Sharif dismissing the appeal of the petitioners.

2. Brief facts of the case are that Mst. Khair-ul-Nisa was real sister of Mst. Tahira Bibi/plaintiff who was owner in possession of land measuring 58-Kanals 14-Marlas bearing Khewat No.3, Khatooni No.11-12 situated in Mouza Malik Rahmon Tehsil and District, Pakpattan Sharif and she allegedly gifted the suit land to the plaintiff on 28.01.2002. That she died on 26.1.2011 and after her death, inheritance Mutation No.216 dated 14.07.2005 was incorporated in the revenue record. Petitioner/plaintiff submitted that alleged gift deed was rightly executed in her favour whereas inheritance mutation was wrongly incorporated in the revenue record. Defendants Nos.1 to 3 filed contesting written statement contending therein that she never gifted the suit property to the petitioner/plaintiff and inheritance mutation was rightly passed. The learned trial court after framing the issues and recording the evidence of both the parties vide judgment and decree dated 15.01.2013 dismissed the suit of the petitioners. The appeal of the petitioners was also dismissed by the learned Additional District Judge, Pakpattan Sharif vide judgment and decree dated 28.12.2015. Hence, this civil revision.

3. Learned counsel for the petitioners submits that the impugned judgments and decrees of the learned courts below are contrary to law and facts of the case which verdicts are based on misreading and non-reading of evidence and have been passed without considering the oral as well as documentary evidence; that the petitioners failed to prove the ingredients of gift but these aspects have not been considered by the learned courts below while passing the impugned judgments and decrees.

4. Learned counsel appearing on behalf of the respondents contends that it was bounden duty of the petitioners/plaintiff to prove the factum of gift, offer, acceptance and delivery of possession which mandatory ingredient have not been proved; that in the plaint the particulars of the transaction, no date, time, place nor the names of the witnesses in whose presence gift was made by the deceased were mentioned, as such, both the learned courts below rightly concurrently dismissed the suit as well as appeal of the petitioners and committed, no illegality.

5. Heard. Record perused.

6. The major controversy in this case is centered around the oral kind of gift mutation which is embodied in issue No.5 which is reproduced as under:-

"5. Whether the Mst. Khair-ul-Nisa has gifted the property mentioned in para No.1 of the plaint to the plaintiff? OPP"

Being plaintiff beneficiary she was under incumbent obligation to dissipate the burden of proving the alleged transaction. Petitioner/plaintiff herself did not appear to prove her case and her special attorney Shahid Nazir appeared as PW-4 who stated as under:-

Muhammad Sharif and Muhammad Aslam appeared as P.W.5 and P.W.6 respectively and they did not disclose the date, time and place of gift/transaction.

7. Further, in para. 2 of the plaint, the petitioners stated as under:--

From perusal of Para-2 of the plaint reproduced above, it evinces that no date, time, place and the names of the witnesses in whose presence offer, acceptance and delivery of possession was made has been mentioned but P.W.1 made unauthorized improvement in his statement by mentioning the date and names of witnesses therein whereas the said facts have not been mentioned in the plaint, as such, evidence produced by the petitioner/plaintiff went out of scope of pleadings and it cannot be considered or discussed, same should be ignored while deciding the lis. Reliance is placed on the cases of Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914) and Combined Investment (Pvt.) Limited v. Wali Bhai and others (PLD 2016 SC 730). Furthermore, neither the P.Ws. 5 and 6 mentioned the date, time, place and the names of witnesses in whose presence offer, acceptance and delivery of possession was made. Petitioner/plaintiff herself did not appear and have not recorded any statement to prove her case and she produced on her behalf Shahid Nazir (special attorney) as PW-4. Furthermore, Khasra Girdawari for the years 2002-12 appended with this petition shows that the possession was not handed over, in the year 2010 to the petitioner/plaintiff, as such, the petitioners failed to prove the alleged gift mutation as prescribed under the law where the petitioners being beneficiaries of the gift were under mandatory obligation to prove the alleged gift mutation through corroborative concrete, solid evidence but they failed to dislodge the above obligation which is fatal to their stance. Reliance is placed on the cases reported as Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1) and Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others (2018 SCMR 30). For ready reference , relevant portion is reproduced as under:-

"However, the said respondent was still required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the respondent No.1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh.DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However, neither has the respondent No.1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however, the respondent No.1 has failed ever to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any of them who participated in the relevant jalsa-e-aam/assembly been produced by respondent No.1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but such also has not been claimed by respondent No.1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of subsection (7) of section 42 of the West Pakistan Land Revenue Act, 1967. The respondent No.1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the respondent No.1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs.8000) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mesne profit the respondent No.1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid".

Further, the Hon'ble Supreme Court of Pakistan in a case reported titled as Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others (2003 SCMR 41) has held in is bounden duty of the person alleging gift in his favour to prove the very factum of gift by adducing cogent and convincing, believable and trustworthy evidence. For ready reference, relevant portion whereof is reproduced as under:-

"7. We are of the considered view that factum of gift could not be proved by adducing cogent and convincing evidence."

The above principle has been reiterated in the dictum herein below. Petitioner asserted that she is donee of the suit land from her sister as such under Article 127 of Qanun-e-Shahadat Order, 1984 was under unalienable mandatory obligation to prove the asserted facts. Reliance is placed on Baja through L.Rs. and others v. Mst. Bakhan and others (2015 SCMR 1704), the relevant portion whereof is reproduced as under:-

"Even otherwise, in view of Article 127 of the Qanun-e-Shahadat Order, 1984, the burden of proving the validity of gift vis-a-vis good faith was on the beneficiaries of such transaction. But, in the present case, respondents Nos. 2 to 4, the donees, despite being, served with the summons did not appear to con-test the Suit, to establish the validity of the alleged gift in their favour, and the appellants being subsequent buyer in the year 1975, also failed to prove the necessary ingredients of a valid gift. Therefore, the findings of the learned Additional District Judge, and of the learned judge in chambers of the Lahore High Court, are unexceptionable."

But the petitioners have miserably failed to prove the gift as required under the law and contradictory statement of the PWs also extinguish their claim as propounded in the plaint. Moreover, as per paras Nos. 149 and 150 of the Muhammadan Law, three important prerequisites of valid gift has been described such as offer by the donor without any enticement or duress acceptance of the said offer by the donee and delivery of possession under gift are considered mandatory for the valid transaction of the gift but in this case the above said ingredients have neither been asserted in the plaint nor proved as per law and non-adherence of the plain requirement of law dismantle the entire edifice of the claim/cause. The Hon'ble Supreme Court of Pakistan in a judgment reported as Mst. Saadia v. Mst. Gul Bibi (2016 SCMR 662) held as under:-

14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession."

8. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases of Khalil Ahmad v. Abdul Jabbar Khan and others (2005 SCMR 911), Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through LRs (PLD 2008 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect.

10. In view of above, this civil revision is dismissed being devoid of any merits with no order a to costs.

ZC/D-4/L Revision dismissed.