LASHKAR Versus FAZAL
RANA MUHAMMAD ARSHAD KHAN, C.J.--- This appeal by leave to appeal has been preferred against the judgment/decree dated 16-8-2011 passed by the learned Single Judge in Chamber of Gilgit-Baltistan Chief Court, whereby, the concurrent findings of the learned trial Court in the judgment/decree dated 14-12-2009 in Civil Suit No. 44 of 2008 as well as the learned Additional District Judge vide judgment/decree dated 7-4-2010 in Civil Appeal No.2 of 2010 were set aside and the suit brought by the respondents was decreed.
2. The necessary facts giving rise to the instant appeal briefly stated are that the respondent/plaintiff instituted a civil suit before the court of plenary jurisdiction for declaration while claiming the possession of the suit land measuring 23 Kanals under khewat No. 18, Khasra Nos. 271, 334, 349, 350, 618, 619, 639, 781, 783, 799 and 804 situated in Mouza Charri as being the sole owner of the legacy of his mother with the further prayers of cancellation of Mutation No. 414 dated 3-6-1991 as having been entered illegally. It has further been averred that Mst. Rahim Bi deceased was the owner of the property as being the sharer who had inherited the property in dispute on the demise of her father Muhammad and the said property fell in the share of one Mst. Soday Bi and thereafter, the property detailed above devolved upon Fazal respondent/plaintiff as being the sole legal heir of Soday Bi deceased. It was further set out that the appellant/defendant in connivance with the revenue staff got entered Mutation No. 414 and sanctioned on 3-6-1991 in their record, so as to deprive the respondent/plaintiff of his valuable right of which he had become the sole legal owner of his ancestral property. It was also asserted in the plaint that the aforesaid mutation was a result of an exercise of fraud and misrepresentation and the same was inoperative qua his legal rights.
3. On the other hand the appellant/defendant controverted the averments made in the plaint by maintaining that mother of the respondent/defendant had gifted out half of the share of her property in the name of the father of the appellant in her life time and Since then, he was in peaceful and uninterrupted possession of the same. The appellant asserted further that the parties had effected a compromise on account of the intervention of the elders of the area in the presence of the respondent/plaintiff and that too with his free will and without any coercion.
4. On account of divergent pleadings of the parties, the learned trial court framed as many as thirteen issues including that of relief. The evidence adduced by the parties was recorded and the suit was dismissed by the learned trial Court vide judgment and decree dated 14-12-2009. The respondent/plaintiff feeling aggrieved and dissatisfied called in question the judgment and decree dated 14-12-2009 in the Court of District Judge Skardu which came up for hearing in the Court of learned Additional District Judge Skardu. However, the respondent herein remained unsuccessful as the appeal was dismissed vide judgment and decree dated 7-4-2010. The respondent herein challenged the judgment and decree passed by the learned Additional District Judge through Civil Revision Petition No. 31 of 2010 in the Chief Court of Gilgit-Baltistan. The learned Single Judge of the Chief Court in Chamber vide judgment/decree dated 16-8-2011 set aside the findings recorded by both the courts below and while accepting the revision petition decreed the suit in favour of respondent herein.
5. The learned counsel for the appellant argued vehemently that the impugned judgment and decree passed by the learned judge in Chamber is against law and facts. The learned Judge had erred in law while interfering in the concurrent findings of the Courts below as no material irregularity and illegality has been pointed out and rendered the judgment on the basis of conjectures and surmises which is liable to be set aside as the same cannot sustain in law. He argued further that the suit was time barred and this aspect has neither been taken into consideration by the learned Chief Court nor any finding is recorded on this point, therefore, the finding of the Courts below have been upset without giving any cogent and convincing reason. The learned counsel argued that the law of estopel was fully attracted, in the circumstance of the case, because the parties were bound by their conduct and compromise effected between them and as such, legally they could not resile from the same. He laid emphasis that impugned judgment/decree is based on misreading and non-reading of material evidence which resulted into grave miscarriage of justice. In the end of his arguments, it was added by the learned counsel for the appellant that the learned single Judge in Chamber never adhered to the admissions which were made by the P.Ws. in favour of the appellant and as such the impugned judgment was not sustainable at law.
6. On the other hand the learned counsel for the respondent/ plaintiff submitted that the decision of the learned Judge of the Chief Court was in accordance with the evidence on the record and law applicable to the facts and circumstances of the case. He submits further that both the courts below did not avert to the factum that neither the oral gift allegedly made by the deceased mother of the respondent nor the compromise between the parties have been proved on file, consequent whereupon, the Mutation No. 414 dated 3-6-1991 was entered and attested. Submits further that the revisional court has correctly intervened so as to bring the finding of both the courts below in accordance with law and facts of the case.
7. We have heard the arguments advanced by the learned counsel for the parties at full length and have also examined the available record very carefully with their able assistance.
8. The leave in this case was granted vide order dated 14-5-2012 to consider the following points:-
(i) Whether the judgments and decrees of the learned trial Court and the appellate court passed on proper appreciation of evidence on record, were opened to revisional jurisdiction under section 115, C.P.C. and;
(ii) Whether the revisional jurisdiction is not primarily meant for correction of jurisdictional errors and to see as to whether there was any material irregularity.
9. The main contention of appellant is that the mother of the respondent had gifted out 2/5th of the suit land to the father of appellant. The possession of which was statedly with the appellant and thereafter, he continuously enjoyed peaceful possession over the said property. Suffice it to say that offer, acceptance and delivery of possession are important and necessary ingredients for making a valid gift and all these elements must be coexisting in order to prove the claim on the basis of gift. The minute examination of the statement made by the appellant during the course of trial in the shape of examination in chief and cross examination makes it crystal clear that he had very frankly conceded that he had no witness to produce before the court to prove the factum of gift allegedly made by the mother of the respondent in her life time and in addition to that he had admitted that there was no such documentary evidence in this regard. The appellant could not bring an iota of evidence on the record in support of his assertion. In this view of the matter, it is quite clear that the appellant has miserably failed to prove the factum of gift claimed by the appellant which was very basis of his claim. If the appellant has failed to prove the very basis of his claim, the whole building raised on it would crumble like house of cards. The appellant in his statement very frankly conceded as follows:
10. It was the foremost duty of the appellant to prove the factum of gift through cogent evidence but in the case in hand neither any document pertaining to gift was brought on the file nor any evidence was produced and in the absence of any evidence, the alleged gift remained unproved. The learned trial court as well as the first appellate court without reverting to the real controversy between the parties dismissed the suit of the respondent/defendant and passed the decree in the suit of the appellant without application of judicious mind.
11. The next limb of the appellant's argument is that mutation No.414 dated 3-9-1991 was validly entered and sanctioned with the consent of respondent and as such he was stopped by his words and conduct to cast aspersion over its veracity. So far as the sanction of mutation is concerned, it is axiomatic that mere sanction of Mutation does not confer any title on a person relying upon the same. The beneficiary is under legal obligation to prove it through cogent and convincing evidence. The appellant although examined witnesses to the alleged mutation, however, he miserably failed to prove that the mutation in question was the result of compromise effected by the parties before entering and sanctioning the mutation. It has also not been made clear as to what dispute had been resolved by the intervention of the parties except that the remaining land of the respondent was also taken away though this mutation. The survey of the statement of P.Ws. before the trial Court reveals that one of the P.Ws. Ali Hassan who appeared in the witness box as marginal witness to the Mutation very candidly conceded that he was absolutely ignorant as to what was mentioned in the Mutation. The relevant part of his statement is reproduced below for convenience:-
12. He stated further that before he reached the revenue officer, Mutation had already been entered. These frank disclosures make the very presence of aforesaid witness at the relevant time of entry and attestation of the mutation highly doubtful.
13. Similarly D.W.4 gave a death blow to the appellant's claim by submitting that he was ignorant about the terms of settlement between the parties. This part of the statement of the D.W.4 makes it quite clear that he was neither a party to the settlement nor he was having any knowledge about the settlement struck between the parties. It is further noteworthy that he was not witness to the mutation in question. The learned trial court as well as the first appellate court erred in law to rely upon the witness while dismissing the suit of the respondent herein. Similarly, D.W.1 Haji Munir Hussain has also very frankly submitted that he had no information about the dispute between the parties with regard to the property in question.
14. Much emphasis has been laid on the point that Fazal since had made signature on the Mutation in dispute cannot wriggle out of the same. The argument has no force when the execution of the document is denied or fraud is alleged against the vendee and the beneficiary of the transaction. The burden of proof shall shift on the beneficiaries of the transaction. Mere signature on the deed or on the mutation under section 114 of the law of evidence shall not be attracted to operate as estoppel. There is no such evidence available on the record to prove that the contents of the documents were made known to him.
15. The minute examination of the record reveals that no witness appearing on behalf of the petitioner has given any assertion with regard to the entry of the mutation and its sanction nor the same was read out to the respondent Fazal. All the proceedings were carried out in the house of one Rustam whereas, the requirement of law is that the mutation was to be sanctioned in the open place among all the concerned and other people (Jalsa-e-Aam) which has not been done in the instant case which clearly indicates that the petitioner/defendant was having hands in gloves with the concerned officials and the respondent/plaintiff seemed to have been defrauded. Had it not been so, the respondent would have not remained locked in litigation for such a long time despite his physical disability.
16. The main thrust of the appellant was that there had been a dispute between the parties since long and the same was resolved on account of the intervention of the elders of the area but it becomes all the more essential that the dispute between the parties was first resolved if, for instance, it was resolved before the said entry of mutation and its sanction, strangely, no such evidence has been brought on the file to prove the real controversy between the parties and in the absence of any such evidence no sanction can be accorded to the mutation No. 414 dated 3-6-1991. The position, therefore, which emerged from the record, is that only one attesting witness was examined by the appellant in support of his claim who failed to prove his stance in view of admission referred above.
17. So far the evidence of the D.Ws. is concerned, they were never witnesses to the impugned mutation and as such their testimony particularly in the wake of disclosure referred to above, can never be taken as sufficient proof of the stance of appellant. The total assertion of the appellant as per record of the case, are based on verbal assertion only. They could not produce any documentary evidence which could prove their title upon the land allegedly gifted out to him. They have only produced D.Ws. who were also not present at the time when Mst. Soday Bi had gifted her some share of land to the father of appellant and in lieu of what? This is a real question which remained unresolved through any evidence produced by the appellant. In the circumstances of the case, we are of the considered view that the learned trial Court as well as the first appellate court have failed to appreciate the evidence brought on the record by the parties and passed the judgments dated 14-12-2009 and 7-4-2010 in complete oblivion of the necessary ingredient of the alleged gift made by Mst. Soday Bi to the father of appellant.
18. As regards, the contention of the learned counsel for the appellant that the interference by learned Chief Court in judgments passed by the learned trial court as well as the first appellate court is concerned, the chief court has ample powers in its revisional jurisdiction to interfere in the judgment of the courts below where, the courts have passed the judgments in disregard to the material evidence. The purpose of revisional jurisdiction is always correction of irregularities and illegalities committed by the courts below in exercise of their jurisdiction. It is always meant to correct the errors and to see the material irregularities and the Chief Court is quite competent to make such orders in the case as it deems fit. We feel no hesitation to observe that the learned trial court as well as the first appellate court failed to read the evidence on the record in its true perspective to reach to a just conclusion.
19. Keeping in view the above stated facts, we have reached to an inescapable conclusion that the learned revisional court, while recording its findings did not apprise the evidence available on the record in its true prospective to bring the findings in accordance with law. The power of revisional jurisdiction vested in the Chief Court was exercised by the learned court justly, fairly and in accordance with law. The appeal is, therefore, dismissed with no orders as to the cost.
HBT/40/GB Appeal dismissed.