RAEES AHMAD Versus JANNAT BIBI
MUHAMMAD ALI, J.--- This civil revision is directed against the judgments and decrees of the learned trial Court and the appellate Court, whereby suit for declaration and permanent injunction filed by the respondent was decreed and the appeal filed by the petitioners challenging the decision of the trial Court was dismissed.
2. Concisely, the facts of the case are that the plaintiff-respondent filed a suit for declaration contending therein; that her father Atta Muhammad (predecessor-in-interest of the parties) had two wives namely Mst. Rehmat Bibi (since dead) and Mst. Faiz Ellahi. The respondent is the daughter of deceased Atta Muhammad and Mst. Rehmat Bibi, whereas petitioners Nos.1 to 5 are sons and daughters of the deceased Atta Muhammad and his second wife Mst. Faiz Elahi-petitioner No.6; that Atta Muhammad was an illiterate villager, who was residing with the petitioners; that petitioner No.6 Mst. Faiz Elahi got the suit property transferred in the names of petitioners Nos.1 and 2 by committing fraud and forgery through Tamleek Mutation No.466 dated 30.11.2000; that the deceased was an old, sick and infirm person, and was not capable of understanding things being not in proper senses, he passed away on 07.01.2008; that the respondent was given agricultural produce by the petitioners and when they stopped giving her share, the revenue record was checked and it transpired that the fraudulent mutation has been attested; that the mutation was result of fraud and forgery, liable to set aside.
3. The petitioners contested the suit by filing a written statement, it was contended that the Tamleek mutation was validly executed by the deceased. From the divergent pleadings of the parties, the learned trial Court framed necessary issues and proceeded to record evidence of the parties. After evaluating the evidence, the suit was decreed vide judgment and decree dated 23.01.2012. Feeling aggrieved the petitioners challenged the decision by filing an appeal. The appellate Court dismissed the appeal vide judgment and decree dated 04.04.2012, hence this civil revision.
4. The learned counsel for the petitioners contends that the gift in favour of petitioners Nos.1 and 2 was proved beyond any shadow of doubt, on the other hand the respondent failed to prove the plea of fraud and misrepresentation and also failed to discharge initial onus of proof; that petitioners Nos.1 and 2 being beneficiaries of the Tamleek proved that it was genuinely executed by the deceased of his own free will and consent; that the findings recorded by the learned Courts below are based on presumptions; that the evidence of the Halqa Patwari and other Revenue Officers should not have been discarded; that the ingredients of gift and the original transaction were fully proved by the petitioners.
5. Conversely, the learned counsel for the respondent submits that there are concurrent findings of fact recorded by the two Courts below in favour of the respondent and merely because another view is possible on re-appraisal of evidence, exercise of jurisdiction under section 115 of the Code of Civil Procedure, 1908 is not permissible; that petitioners Nos.1 and 2 being beneficiaries of the gift have failed to prove the same by not producing its marginal witnesses and have also failed to mention the date, time and place of the original transaction in their written statement which is a mandatory requirement of law.
6. Arguments heard. Record perused.
7. In order to discharge initial onus of prove Ghulam Fareed appeared as PW-1 who deposed that Atta Muhammad was 90/95 years of age suffering from kidneys ailment for past 4/5 years, he did not execute the Tamleek mutation. Muhammad Ajmal appeared as PW-2 and supported the version of the respondent by deposing that Atta Muhammad was a sick and infirm person. Mst. Jannat Bibi-respondent appeared as PW-3, she also stated that Atta Muhammad was not in his full senses and was suffering from kidney problem and was not in a position to understand things. The witnesses were subjected to lengthy cross-examination, they stood the test and remained firm to their stance. The initial burden of proof was discharged by the respondent through her evidence.
8. Once the onus was discharged by the plaintiff, the petitioners Nos.1 and 2 being beneficiaries of the gift were required to prove its due execution by the deceased Atta Muhammad through clear and convincing evidence. Admittedly, the marginal witnesses of the mutation were not produced by the petitioners. The petitioners filed an application to submit a list of witnesses before the learned trial Court, their application was accepted after which Revenue Officials were summoned through process of Court. After evidence of these witnesses was recorded, another application was filed by the petitioners for summoning Mumtaz Hussain, Muhammad Amin Lumberdar and Muhammad Aslam. The application was dismissed vide order dated 26.01.2011. The order was not assailed any further and it attained finality. The petitioners thereafter moved an application for production of additional evidence in appeal for summoning the marginal witnesses, the application was dismissed and their request was rightly turned down by the learned appellate Court as they could not have been permitted to fill lacunas in their case as held in the case of Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067).
9. The petitioners in order to discharge onus of issue No.1 produced Zafar Iqbal Halqa Patwari as DW-1 who produced Roznamcha Waqiati containing Rapt No.128 pertaining to the mutation in question. Muhammad Anwar Patwari appeared as DW-2 who stated that Atta Muhammad along with Muhammad Amin Lumberdar and Mumtaz Hussain came to him on 16.11.2000 and asked him to enter the mutation and he stated that he had gifted his land measuring 165 kanals 19 marlas to his sons Raees Ahmed and Idrees Ahmed and has handed over possession to the donees. The statement of this witness is contradicted by deposition of DW-4 who stated that after getting the mutation entered, the offer was made by the deceased and was accepted by her on behalf of petitioners Nos.1 and 2. Qamar Mehmood Tehsildar appeared as DW-3 who stated that Atta Muhammad was identified by Amin Lumberdar and Mumtaz Hussain. Mst. Faiz Ellahi appeared on behalf of the petitioners as DW-4, she stated that eleven years ago at 8/9 a.m. the deceased Atta Muhammad called his prospective legal heirs and expressed his intention to gift the property to his sons and he stated that he went to the Patwari and has transferred the property in favour of his sons, the witness stated that she accepted the offer of gift on behalf of the donees (Raees and Idrees) who at that time were minors. The witness further stated that after fourteen days of incorporation of the mutation, the deceased appeared before the Tehsildar and made a statement regarding transfer of land. In cross-examination she admitted that she did not appear before the Patwari at the time of execution of Tamleek mutation.
10. The mutation in most of the cases is endorsement of a separate event when the oral gift is actually made. The plea of DW-4 that Tamleek was made 11 years back at 8/9 a.m. is not supported by any independent and credible evidence. The sole testimony of DW-4 to prove the event is not enough to prove the oral gift. No specific date, month and year is mentioned by the witness regarding the meeting when other prospective legal heirs were called by the deceased. The written statement filed by the petitioners is completely silent as far as convening of the meeting is concerned when the oral gift was made and is also silent regarding date and place of the event. Nothing stated outside the scope of pleadings can be looked into and no decision can be based on such evidence. When any evidence beyond the pleadings is adduced, no party on the basis of such evidence can be allowed to set-up altogether a new case. Reference in this behalf is made to the cases of Combined Investment (Pvt.) Ltd. v. Wali Bhati (PLD 2016 Supreme Court 730) and Essa Engineering Company (Pvt.) Ltd. v. Pakistan Telecommunication Company Limited (2014 SCMR 922). The requirement of law is to plead date, time and place in the pleadings in such cases. Reference in this regard is placed on the cases of Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402) and "Peer Baksh v. Mst. Khanzadi" (2016 SCMR 1417).
11. The burden squarely lies on the beneficiary, whenever gift mutation is challenged, to prove not only the mutation but also the original transaction of oral gift, which he is required to fall back upon. Reference can be made to case of Peer Baksh (supra) and the case of "Fida Hussain through Legal heirs v. Mureed Sakina" (2004 SCMR 1043). There is nothing on the record to show that what was the special occasion for the deceased to gift the property to the donees by excluding other legal heirs. There has to be a strong reason to justify making gift in favour of some legal heirs excluding others. Nothing is reflected from the disputed mutation to show any such reason to hamper the normal course of inheritance.
12. The petitioners have not produced Mumtaz Maitla and others who were participants of the meeting when the oral gift was made. These witnesses of the meeting would have been best evidence for the petitioners to prove oral gift, by not producing them in witness box, best evidence has been withheld and the presumption goes against the petitioners in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984. The petitioners have also not produced attesting witnesses of the mutation namely Mumtaz Hussain, Muhammad Amin Lumberdar and also Muhammad Aslam who appeared on behalf of the donees. There is no explanation for non-production of these witnesses, in their absence the requirement of Article 79 of the Qanun-e- Shahadat Order, 1984 is not fulfilled and the Tamleek mutation is not proved. The petitioners were also under an obligation to establish that at the time of execution of Tamleek by the deceased, independent advice was available to him and that he fully understood its contents. Petitioner No. 6 while narrating about the event of making oral gift which took place 14 days prior to the attestation of mutation has not referred to delivery of possession of the property by the donee. If any one of the ingredients is missing, the gift is not proved. Reference in this behalf is made to the cases of "Muhammad Idrees v. Mst. Zeenat Bibi" (2005 SCMR 1690) and "Mst. Nagina Begum v. Mst. Tehzeem Akhtar and others" (2009 SCMR 623). Moreover, the basic requirements of gift are to be fulfilled in their logical order and one cannot over lap the other. It appears from the record that an effort was made to deprive the respondent from inheritance of the deceased being step sister of petitioners Nos.1 to 5. The Courts while analysing the evidence have to keep in view the fact that the mutation of gift which had the effect of depriving lawful female heir had to be jealously scrutinized so that the normal course of inheritance is not frustrated as held in the case of "Barkat Ali through legal heirs and others v. Muhammad Ismail and others" (2002 SCMR 1938).
13. The learned Courts below have rightly appreciated the evidence, no illegality or material irregularity is found in their findings, no case for interference is made out. The concurrent findings of fact, if based on proper appreciation of evidence could not be set aside in revisional jurisdiction merely because another view is possible. This exercise is meant to correct jurisdictional defect, error, material illegalities or irregularities, resulting in miscarriage of justice. Reference in this behalf is made to the cases of Jamil Khan v. Salem Khan (2017 SCMR 860) and Administrator, Thal Development through EACO Bhakhar and others v. Ali Muhammad (2012 SCMR 730).
For what has been discussed above, there is no merit in this civil revision and same is hereby dismissed. There is no order as to costs.
MQ/R-1/L Petition dismissed.