GHULAM MUHAMMAD Versus EHSAN-UL-HAQ

On 4-4-1984, Ghulam Muhammad deceased, represented by the petitioners, filed a suit for declaration claiming title to the land measuring 63 Kanals situated in Mouza Munawan alleging therein that Mutation No.24 attested on 24-3-1981 was based on fraud and was therefore, void and inoperative qua his rights. A permanent injunction was also claimed by way of consequential relief that the respondent be restrained from interfering in his possession. The respondent a minor son of the plaintiff, was sued through Mst. Kafayat Khatoon, the real mother of the said minor. It was averred that Mst. Kafayat Khatoon was living with her parents since long and was trying to grab the land of the deceased plaintiff, her brothers were very influential persons and they got the disputed mutation sanctioned in favour of the respondent. It was also averred that he did not make a gift, the possession of the land was not transferred and that he did not appear before any Competent Authority and did not make any statement that he had made the disputed gift.

2. The suit was contested. It was averred that the deceased-plaintiff had gifted the land in his favour. He had appeared before the Revenue Officer, had made a statement and had also affixed his thumb-impression on the mutation.

3. Necessary issues in the case were framed and the suit tried. The learned trial Court, vide judgment and decree dated 4-9-1988, dismissed the suit with the finding that the gift was made by the deceased-plaintiff in favour of the respondent and that since the defendant-respondent was in possession, the form of the suit was not correct. In arriving at the conclusion that the gift was made, statements of D.W.1 and D.W.5 were relied upon.

4. The deceased-plaintiff challenged the said judgment and decree in an appeal which was dismissed vide judgment and decree dated 12-7-1989.

5. The learned First Appellate Court relied on the evidence of D.W.1, D.W.2 and D.W.5 and an admission of the deceased-plaintiff, that mutation was attested in the common assembly and that the deceased-plaintiff was present at the time of attestation of the disputed mutation.

6. Before the respective contentions of the learned counsel for the parties are examined, it may be noted that this revision petition was filed by Ghulam Muhammad. During the pendency of this petition, he died. The respondent moved C.M. No.1/C of 1996 for bringing on record the legal representatives of Ghulam Muhammad deceased which was allowed. They are Mst. Kafayat Khatoon widow of Ghulam Muhammad (although already divorced). Ehsan-ul-Haq the son, Mst. Manzoor Khatoon, Mst. Afzal Khatoon, Mst. Satbharai (wrongly described as Sabharai and Mst. Ghulam Fatima. It has been brought on the record that Ghulam Muhammad had taken three wives. One was Mst. Samari from whom the deceased had no child, Ehsan-ul-Haq, Mst. Afzal Khatoon and Mst. Manzoor Khatoon were the off-springs from Mst. Kafayat Khatoon wife Mst. Satbharai and Ghulam Fatima were the two daughters from Mst. Alam Khatoon. Out of the heirs of. Ghulam Muhammad, Afzal Khatoon and Manzoor Khatoon, the real sisters of the respondent, have not come forward to prosecute this revision petition. Mst. Satbharai and Mst. Ghulam Fatima, the step-sisters of respondent are, however, contesting this case and are represented by their learned counsel. It was brought to my notice that through Mutation No. 173 attested on 8-7-1996, the respondent gifted the share of Mst. Satbharai in her favour. It was conceded by the learned counsel representing Mst. Satbharai that in case this Court reaches the conclusion that a valid gift was not made in favour of the respondent, he will have no objection to the gift in favour of Mst. Satbharat being set aside in its entirety so as not to effect even the share of the respondent.

7. It may also be noted that the respondent was sued through Mst. Kafayat Khatoon as his guardian ad litem but it was conceded by the learned counsel for the petitioners that he had attained majority long ago. Therefore, the guardian is discharged. It may also be observed that in the application moved by the respondent he also sought to be brought on the record as a petitioner which application was allowed. However since he is the only contesting party, it is directed that his name shall be deleted from the revised memo of parties names 'as one of the petitioners.

8. The learned counsel for the petitioners contends that there was no evidence of alleged gift and the entry of the attestation of the mutation itself did not constitute a valid gift. He contended that the learned First Appellate Court misread the record inasmuch that D. W.1 presumed to be a marginal witness of the mutation whereas his presence was not borne out from the mutation. He further submitted that neither the Lambardar of the village nor the persons who identified the deceased-plaintiff were examined and in view of the allegation of the plaintiff that the mutation was collusive statement of P.W.5, Patwari was not sufficient to hold in favour of a valid gift. He further contended that according to the evidence produced on the record the possession of the land was never transferred to the respondent and, therefore, the form of the suit could not be objected to. He further contended that the statement of the deceased-plaintiff was misread to attribute an admission that he had accepted having made the gift.

9. On the other hand, the learned counsel for the respondents contends that the matter stands concluded by concurrent findings of the learned two Courts and, therefore, no interference is called for. It was further contended that the evidence produced in the case was rightly relied upon by the learned two Courts.

10. I have considered the submissions made by the learned counsel for the parties. D. W.1 claimed that the deceased-plaintiff had gifted his land in favour of the respondent. In cross-examination he claimed to be a witness of the mutation. The learned First Appellate Court held that he was a marginal witness of the mutation. A perusal of disputed mutation shows that his presence is nowhere recorded. According to the order recorded on this mutation apart from the deceased-plaintiff, Gul Zaman and Ghulam Muhammad, members of the Union Council and Ghaus Muhammad Pattidar, were present at the time of attestation of the mutation. This was omitted from consideration by the learned two Courts that D. W.1 was not present at the time of attestation of mutation. D.W.2 asserted that he was informed by the plaintiff of having made the gift. D. W.3, Mst. Kafayat Khatoon stated that the deceased-plaintiff had got the mutation attested in favour of the respondent. None of the aforesaid D. Ws. deposed about the factum of gift other than the mutation. D. W.5, the Patwari Halqa, stated that he had entered the mutation which was attested by the Revenue Officer who had died. According to him, the mutation was entered at Village Subhran and was attested at Nowshera. He also admitted that Mouza Munawan had only one Lamberdar. He was Mian Muhammad and was alive at the time of attestation of the mutation.

11. The facts established from his statement are that the mutation in question was neither entered nor attested in the Revenue Estate. The only Lambardar of the village who was alive was not associated. None of the persons present at the time of attestation of mutation was examined although it was admitted by D. W.5 that bath the members of the Union Council were alive. It is thus, clear that the mutation in question was attested clearly in contravention of the provisions contained in section 42 of the West Pakistan Land Revenue Act, 1967. This aspect of the matter also escaped consideration of the learned two Courts. D.W.5, in any case, did not provide any substantive evidence of the gift having been made by Ghulam Muhammad because a mutation only records an earlier transaction. It may also be noted that the basis of entry of this mutation was Report No.211, dated 13-3-1981 which was also not produced.

12. Reference may be made to Gharib Shah and others v. Zaman Gul (PLD 1984 SC 188). The following observations of the Hon'ble Supreme Court may be reproduced with advantage:--

"It is obvious that subsection (8) of section 42 significantly makes it a condition precedent for any effective order that it shall be made only in the 'common assembly' in the estate to which the mutation relates."

Reference may also be made to Ghulam Hussain and others v. Imam Bakhsh and 9 others (1995 MLD 1165). It was held that under section 42 of the West Pakistan Land Revenue Act, an inquiry was required to be made in the common assembly in the estate to which the mutation related and if the inquiry was not made at the place where the property was situated the mutation cannot be deemed to be attested in accordance with law, and as such was not binding on the heirs.

13. It is no doubt correct that the onus of Issue No.4 was on the deceased-plaintiff, yet his sworn statement discharged the initial onus and it was for the defendant-respondent to have established a valid gift.

14. As far as the thumb-impression of Ghulam Muhammad on the mutation is concerned reference may be made to paragraph 4 of the Chapter 7 of the Land Record Manual which prohibits taking of the thumb-impressions of the parties on a mutation sheet. Therefore, merely because the thumb-impression of Ghulam Muhammad deceased appeared on the mutation sheet it was not sufficient to hold that a gift was made by him.

15. Perusal of the judgment of the learned First Appellate Court also shows that it was also observed that the deceased-plaintiff should have applied for the comparison of his thumb-impression on the mutation. As observed above, it was for the beneficiary of the mutation to establish the transaction and there was no such requirement of law that the deceased-plaintiff should have asked for the comparison of his thumb -impression on the mutation. I have also taken note of the fact that none than the then real father of the respondent had himself challenged the aforesaid mutation and in case a valid gift was made by him, he would not have done so.

16. As far as the admission attributed to P.W.3 is concerned he stated that:---

His statement taken as a whole including the examination-in-chief clearly establishes that he was repudiating the gift. Therefore, this isolated sentence in his statement could not be determinative of the fate of the case.

17. The finding of the two Courts that the defendant was in possession and, therefore, the form of the suit was not proper also proceeds on misreading of the evidence. P.W.1, Mian Muhammad, stated that he was cultivating the land in dispute as a tenant for the last 10/12 years and had never paid any share of produce to the respondent. He is the husband of Mst. Ghulam Fatima. Sher Zaman, P.W.2, corroborated P.W.1., P.W.3, the plaintiff also stated that Mian Khan, P.W.1, was cultivating the land in dispute. D.W.1 stated that he has been cultivating the land in dispute which was cultivated by the mother of the respondent and some area was lying uncultivated. D.W.2, however, stated that the parents of the respondent were getting the land cultivated. Perusal of the record appended to this revision petition shows that except Exh.D.1 no other documentary evidence was produced on behalf of the defendant to demonstrate that he was in actual physical possession through his mother. The learned First Appellate Court relied on the Jamabandi for the year 1985-86 to hold that the respondent was recorded as an owner in possession. This document was not duly exhibited, on the record. It has not been filed on the record of this revision petition. In any case, the suit was filed on 4-4-1984, therefore, the Jamabandi for the year 1985-86 was not otherwise relevant. The land being tenanted at the time of the institution of the suit, its form could not be objected to.

18. For what has been stated above, this revision petition is allowed, the impugned judgments and decrees of the learned two Courts are set aside and the suit filed by the deceased plaintiff decreed. As conceded by the learned counsel for Mst. Satbharai the land gifted in her favour vide Mutation No.173 will form part of the estate of share Ghulam Muhammad and by all the legal heirs. No order as to costs.

H.B.T./G-232/L Petition allowed.