GHULAM RASUL Versus MUHAMMAD AKRAM

ORDER

1. USMAN ALI SHAH, J .‑‑This petition for leave to appeal has arisen from the judgment and order, dated 25‑1‑1988 of the learned Single Judge of the Lahore High Court, whereby civil revision' No.635/D /85 of the petitioner was dismissed.

2. The facts of the case are briefly stated that Ghulam Rasul petitioner owned land measuring 209 Kanals 13 Marlas situate in Chak No. 31‑R.B. Arriana, Tehsil and District Sheikhupura and he vide mutation No.188 attested on 20‑2‑1967 gifted the entire land to respondent. He filed a declaratory suit against Muhammad Akram defendant (present respondent) seeking declaration that the gift deed was void and ineffective on account of having been fraudulently executed under undue influence. The case of the petitioner in the plaint was that he was an old illiterate and simple villager with a weak eye‑sight and deafears, due to which he was unable to maintain his land and therefore, he had given the disputed land to his cousin Muhammad Ali and his son Abdul Sattar on "Batai Nisfee" and they cultivated the land as tenant for 10/11 years and regularly paying the share in produce to the petitioner. After the death of Muhammad Ali, the petitioner handed over the said land to the present respondent for cultivation as tenant. The respondent was paying the share in produce till Rabi 1980 and thereafter he stopped to give the share in produce to the petitioner, saying that the petitioner had no concern with the disputed land. On checking the Revenue record, it was found that the respondent had got the said land mutated in his own name, since 20‑2‑1967, by way of fraud and on the basis of a fake gift. It was also stated that in spite of the said mutation of gift having been sanctioned, the respondent had been paying the share in produce to the petitioner to keep the mutation secret from him.

3. The suit after contest on merits as well as on legal objections, was decreed in favour of the petitioner, vide judgment of Civil Judge Sheikhupura dated 22‑12‑1984. The respondent filed an appeal before the learned Additional District Judge, Sheikhupura, who vide his judgment, dated 5‑3‑1985 accepted the appeal and held that the gift is proved and the suit of the plaintiff, is barred by time. He further observed that the possession of the disputed land was already with the defendant and the fact of gift is not only proved from the oral statement but also from the documents on the record. The petitioner being aggrieved filed a revision petition in the Lahore High Court and a learned Single Judge dismissed the revision of the petitioner, vide his judgment, dated 25‑1‑1988; hence this petition for leave to appeal.

4. We have heard the learned counsel for the petitioner and gone through the record of the case. The learned counsel for the petitioner has argued that the mutation of gift related to Chak No.31‑R.B. Arriana, it should have been attested in the village concerned, instead of Tehsil Headquarters at Sheikhupura. He further urged that the respondent had taken undue advantage of the illiteracy, old age, deafness and weakness of eye‑sight of the petitioner and got attested the mutation fraudulently. It is a matter of record that the mutation was attested in the presence and on the identification of one Muhammad Sadiq, Member of the Union Council of the said Chak, who appeared as D.W.1 and supported the said mutation and making of the gift. The petitioner has failed to produce any cogent evidence even to suggest that the mutation was got attested secretly and without his presence. The petitioner Ghulam Rasul has appeared himself as P.W.1. His own statement without support of any cogent evidence cannot prove that the mutation in question was attested secretly or was attested on some illegal manner. The petitioner had only taken the plea in his plaint that the mutation was got attested taking undue advantage of his old age, weakness, simpleness, illiteracy, deafness and weakness of eye‑sight. The learned Single Judge of the High Court has observed that the petitioner while he was present in Court in person is hale, hearty and alert and also his eye‑sight is still quite well and he is not deaf, therefore, all the pleas taken by him except of illiteracy were proved false. His plea of illiteracy cannot be of any help to him because he made the gift with full understanding and in his full senses.

5. In the circumstances and facts of the case we have come to' the conclusion that the petitioner has miserably failed to discharge the onus of proving fraud and undue influence and we find that the gift was made by him with willingness and sound understanding. The result is that this petition has no force. It is accordingly dismissed and leave to appeal is refused.

6. M.I./G-75/S Petition dismissed