MUHAMMAD SADIO KHAN Versus MUHAMMAD SALEEM KHAN

Sardar Faiz Mehmood Khan was the owner of 792 Kanals 16 Marlas of land in Chak No.39/W.B. Tehsil and District Vehari. He made a gift of this property in favour of his sons Muhammad Saleem Khan; Muhammad Rafique Khan and Muhammad Yousuf Khan and his wife Mst. Sughran and a mutation was sanctioned on 19‑4‑1948 in that regard. Khasra Girdawris of the period after this date show the entries of the donees both in the column of ownership and cultivation. On 21‑12‑1931 a registered document was also executed reaffirming the gift by Sardar Faiz Mehmood Khan in favour of his wife and sons. On 2‑3 1955, however, the mutation of 1948 was revoked and cancelled and subsequently on 30‑3‑1955 this property was sold by Sardar Faiz Mehmood Khan in favour of Din Muhammad Khan for rupees one Lakh. A mutation was sanctioned the same day in favour of Dur Muhammad Khan. It may be mentioned here that Dur Muhammad Khan was a close relative of Mst. Sughran, the wife of Sardar Faiz Mehmood Khan. The sons and wife of Sardar Faiz Mehmood Khan brought a suit for possession of the disputed land but it was contested by late Dur Muhammad Khan, whose successors were brought on record after his demise. As many as 12 issues were framed. They are as follows:‑‑

(1) Whether the suit is within limitation?

(2) Whether Haji Dur Muhammad Khan was the bona fide purchaser for consideration of the suit property? If so, with what effect?

(3) Whether the plaintiffs are estopped by their conduct to institute the present suit?

(4) Whether the suit is collusive? If so, with what effect?

(5) Whether the description of the suit property is correct?

(6) Whether the successors‑in‑interest of Haji Dur Muhammad Khan have effected improvements on the suit land? If so, at what expenses?

(7) If issue No. 6 is found in the affirmative whether the successors‑in -interest of Haji Dur Muhammad Khan are entitled to receive the compensation?

(8) Whether Sardar Faiz Mehmood Khan; defendant No. 2 validly transferred with possession the suit land in favour of the plaintiffs?

(9) If issue No. 8 is found in affirmative, whether the aforesaid transfer of the suit land in favour of the plaintiffs is illegal, void and fictitious?

(10) Whether the sale of the suit land on 30‑3‑1955 in favour of Haji Dur Muhammad Khan is illegal, void and inoperative on plaintiffs' rights?

(11) Whether the successors‑in‑interest of Haji Dur Muhammad Khan are entitled to special costs under section 35‑A? If so, to what extent?

(12) Relief.

Mr. Muhammad Arif Chaudhary, the learned Additional Administrative Civil Judge vide his judgment dated 13‑11‑1974, dismissed the suit holding that the gift in favour of the plaintiffs was not complete and that Dur Muhammad Khan was a bona fide purchaser of the property in dispute. Issue No.1 relating to limitation was, however, decided in favour of the plaintiffs and it was held that the suit was within time. as it had been instituted within 12 years of 1955. Issues Nos. 2,3,4,5,6,7 and 11 were not pressed and were, therefore, decided against the defendants. Issues Nos. 8 and 9 were inter‑connected and were decided together. Issue No. 10 was in fact a part of the same controversy and was decided in favour of the defendants following findings on issues Nos. 8 and 9. The plaintiffs challenged the judgment and decree of the trial Court in appeal and the learned Additional District Judge Multan Camp at Vehari accepted the appeal vide his judgment dated 9‑5‑1978 and decreed the suit for possession of the plaintiffs. The defendants have now come in second appeal against the judgment and decree passed by the Court of first appeal.

2. The learned counsel for the appellants has reiterated the findings of the trial Court with relation to the factum of gift. As regards the question of limitation he has argued that even though this issue was found in favour of the plaintiffs by the trial Court, the present appellants were within their right to support the judgment of the trial Court which ended in dismissal of the suit when the appeal was taken to the Court of first appeal, and that they were not required in law to file cross‑objections. It is contended by the learned counsel that the learned Additional District Judge was not quite right in holding that without cross objections the plea of limitation could not be raised. The learned counsel has also agitated the questions which were raised in Issues Nos. 3,4,5,6,7 and 11 but I am afraid he cannot be permitted to do so as he did not press these issues before the I trial Court and the plea will be deemed to have been abandoned. As regards his right to support the judgment of the trial Court without filing cross‑objections there is ample authority to support the contention of the learned counsel that he could do so without filing cross‑objections. It was so held in the case of Faqir Muhammad v. Muhabbat Khan P L D 1958 Lah. 919.

3. On the application of the plaintiffs‑respondents, respondents Nos. 9 to 18 were added by the orders of this Court in second appeal. They are the donees of the property in question from Dur Muhammad Khan etc. Respondents Nos. 9 to 15 were proceeded ex parte but Mr. M.Z. Khan Burki, Advocate has appeared on behalf of respondents 16 to 18. His case is that since the new respondents have been impleaded as parties they are entitled to file written statement but before doing that the plaintiffs (respondents in the present appeal) shall have to be asked to amend their plaint, suggesting thereby that the case be remanded back to the trial Court for fresh decision. I do not think that such a prayer can be granted. Respondents 9 to 18 did not have any claim over this property independent of Dur Muhammad Khan. They, therefore, only stepped into the shoes of Dur Muhammad Khan and cannot set up an independent plea of their own. The plaintiffs applied for impleading them as parties because these persons have filed separate suits which are now pending adjudication before a Civil Court but no judgment can be given with regard to their claim in the present appeal as this is likely to prejudice their case before the trial Court. It is, however, enough to observe that respondents Nos. 9 to 18 having no independent claim over this land but only stepping into the shoes of Dur Muhammad Khan, their predecessor‑in‑interest, they are not necessary and proper parties to the present appeal. The request on their behalf for amendment of the plaint and permission to lead additional evidence is, therefore, of no avail and their case need not be discussed any further.

4. As regards the successors‑in‑interest of late Sardar Faiz Mehmood Khan and that of late Dur Muhammad Khan, the crucial question relates to the gift of 1948 which was reaffirmed in 1951, but cancelled in 1955. The trial Court came to the conclusion that the gift was not complete as the acceptance of gift was not proved. I am afraid, the trial Court has not appreciated the law correctly. In the case of a gift by a father to his minor children no formal acceptance on behalf of the minors is necessary and so is the case of gift to the wife. The donor will be deemed to have accepted the gift on behalf of his wife and minor children. The case of Ma Mi and another v. Kallander Ammal A I R 1927 Privy Council 22 and Rabia Khatun v. Azizuddin Biswas and others P L D 1965 S C 665 authoritatively determined this question. In the present case not only a mutation was sanctioned in 1948 regarding the gift but the entries of Khasra Girdawris from this period onwards reflect the necessary changes effected by the gift. Added to this is the acknowledgement of 1951 made through a registered document. All these factors put together leave no doubt that a gift was actually intended and made by Sardar Faiz Mehmood Khan in favour of his wife and minor sons and that it was complete in all respects in 1948.

5. In 1955 the mutation of 1948 was reviewed and cancelled. This claimed to be a revocation of the gift made in 1948 but I am afraid no revocation of a gift is possible after it is complete except through a decree of Court. This principle stated by Mulla at person section 167 of the 15th Edition of his well‑known book was reaffirmed in the case of Muhammad Akram v. Kaka P L D 1977 Lah. 1347. The learned counsel for the appellants argued that Saleem Khan a son of Sardar Faiz Mehmood Khan who had in the meantime attained majority and Mst. Sughran his wife were present when the mutation of 1.955 cancelling the mutation of 1948 was sanctioned. Mst. Sughran was examined on commission in this regard. She denied her presence and the presence of her son but this is important only to examine whether mutation was correctly sanctioned or not. As regards the principle that a gift cannot be revoked without a decree of a Court no authority has been produced by the learned counsel for the appellants.

6. The question of limitation has been agitated at considerable length by the learned counsel for the appellants and as discussed above the appellants had the right to raise this plea before the tour of first appeal without challenging it formally by way of filing cross‑objections. In this behalf the learned counsel has argued that the period of 12 years allowed 1 for a stilt for possession is riot available to the plaintiffs as they cannot seek possession without first challenging the mutation of 1955 for which a period of three years only is provided. His contention, however, has no weight because a mutation is not an instrument as claimed by the learned counsel. The definition of instrument given in section 2(4) of Stamp Act does not account for causations as a mutation does not create or extinguish any right. It is only a record which is maintained by the Revenue , authorities for fiscal purposes and does not create or extinguish any rights. As regards the mutation itself, it is obligatory for the Revenue Officer to give a notice to persons likely to be affected by review and in the present case there is no proof that such a notice was given to the plaintiffs. As regards the presence of Mst. Sughran or Saleem Khan, this fact has been denied by Mst. Sughran who was examined on commission through a lady Commissioner on the plea that she being Pardanasheen lady could not appear in public. In fact it is the seclusion of the lady on the strength of which she claims that she was not present when mutation of 1955 was sanctioned .fit this stage it will be advantageous to discuss that Civil Miscellaneous petition was moved by the appellants seeking permission to lead additional evidence to show that Mst. Sughran has beer appearing in public and the right claimed by her as a Pardanasheen lady is not available to her. This application, however, cannot be allowed for the reason that the application for examining Mst. Sughran on commission precisely on the plea that she cannot appear an public was not contested by the present appellants. They cannot, therefore, be permitted at this stage to produce evidence to challenge the Pardanasheen status claimed of by Mst. Sughran. The application is, therefore, dismissed. The record, on the other hand, shows that Mst. Sughran was a Pardanasheen lady and there was no occasion for her to appear before the Revenue Officer and what is more to be identified by a stranger. Her plea that the mutation was sanction behind her back, finds support from, the record. The mutation of 1955 therefore was bead in any case.

7. The appellants are also aggrieved by the order of the trial Court of 16‑7 1974 when their evidence was closed under Order XVII, Rule 3, C.P.C. It is argued on their behalf that the presence of Sadar Qanungo and the record‑keeper, the two official witnesses could be ensured only by the Court, through coercive process available to it, and. the responsibility of their production could not be placed on the appellants. The record, however, shows that Sadar Qanungo had already been given up and the record‑keeper actually appeared on 4‑4‑1974 but he could not be examined as Abdur Rashid witness was not present and the record keeper could not be examined before recording the evidence of Abdur Rashid. Regarding Abdur Rashid the appellants had accepted the responsibility of producing Abdur Rashid themselves said try never produced Abdur Rashid. In view of this situation a fresh process could not be issued under Order XVI, Rule 1, C.P.C., as amended by Lahore High Court. The learned counsel has also argued that Court did not permit the evidence of the appellant himself before closing his case, but the record shows that even the appellant himself was not present on that day in spite of specific orders that the entire evidence will be produced on that date. The orders of the trial Court, therefore, of penalising the appellant under Order XVII, Rule 3, C.P.C. were justified and do not call for interference.

8. It was lastly argued by the appellants that Dur Muhammad Khan was a bona ride purchaser for value and was, therefore, protected by section 41 of the Transfer of Property Act. as Dur Muhammad Khan had made inquiries regarding the title of Faiz Mehmood Khan who was the ostensible owner. I do not think this plea can be pressed with a measure of success, Dur Muhammad Khan is related to Mst. Sughran and it can be presumed that he was aware of the affairs of the property of his relatives. The very fact that in earlier part of March 1955 the mutation of 1948 had to be cancelled would itself show that there was an impediment in the way of transfer of property to Dur Muhammad Khan. He did not care to examine the effect of mutation of 1948. A cursory look at the revenue papers like Khasra Girdawris would also show that the property did not belong to Faiz Mehmood Khan. His reliance on P.3 which is Fard Taqseem is not enough to show that he conducted an inquiry as provided for in section 41 of the Transfer of Property Act. Fard Taqseem cannot equate with Jamabandi. It only shows that the land was allotted to Faiz Mehmood Khan under some scheme by the Government. It will not be a document of title for which a presumption of correctness is attached. The protection of section 41 of Transfer of Property Act, therefore, is not available to Dur Muhammad Khan defendant.

In view of the above considerations, there is no merit in the appeal. It is dismissed with costs, therefore.

M.Y.M./91/L Appeal dismissed.