ABDUL RAHIM and anothers vs Mrs. JANNATAY BIBI and 13 others

' CH. MUHAMMAD ARIF, J.---Challenge in this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 has been made against judgment, dated 22-4-1999 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby petitioners' Civil Revision No,1980 of 1995 was dismissed with the result that the trial Court's judgment and decree dated 3-11- 1994 dismissing the suit of Mst. Jannatay Bibi was reversed and the judgment and decree in her appeal before the learned Additional District Judge dated 21-9-1995 was upheld.

2. Briefly stated the facts are that respondent No,1 Mst. Jannatay Bibi brought this suit for declaration and permanent injunction against (1) Abdul Aziz son of Khuda Bukhsh, (2) Abdul Rahim and (3) Ibraheem sons of Abdul Aziz challenging impugned gift Mutation No,47, dated 23-2-1962 and subsequent Mutation No,58, dated 5-4-1963. Her case was that defendant Abdul Aziz is her real brother. Their father Khuda Bukhsh obtained 252 Kanals 1 Marla of agricultural land in Chak No,10/1- 1, Tehsil Okara as also some lands in Chak No,85-A/TDA and Mauza Karore Nashaib, Tehsil Karore, District Leiah. Mutation of inheritance of the lands in dispute was attested in favour of the plaintiff to the extent of 1/5 share and in favour of defendant Abdul Aziz to the extent of 2/5 share and the remaining 2/5 share was mutated in favour of her/their 2 other sisters. To be exact, 50 Kanals and 8 Marlas of land was inherited by the plaintiff who remained in the possession of defendant Abdul Aziz son of Khuda Bakhsh. Defendant Abdul Aziz continued to pay the share of the plaintiff out of the suit land regularly. She being very well off in the family of her in-laws, physical possession Of the suit land was not demanded by her. Plaintiff and 1st-defendant's widowed-sister namely Aisha Bibi was permanently residing with the former. Plaintiff's son Sarfraz was appointed as General Attorney by Mst. Aisha Bibi with instructions to sell her land situated in village Karore which was done. Some land in Chak No,85-A/TDA Karore was also gifted by Mst. Aisha Bibi to the said son of the plaintiff.

3. Defendants Abdul Aziz tried to grab the land from the plaintiff and others. He in connection with the marriage of his granddaughter took Mst. Aisha Bibi to his own residence and then persuaded her to sue for cancellation of the above mentioned gift and sale deed. On the plaintiff coming to know about the mala fide planning of defendant Abdul Aziz, she requested him to deal with her properly or else she will be driven to filing a suit against him regarding possession of her 50 Kanals, 8 Marlas of land in suit. It was then that defendant Abdul Aziz declared that he had already obtained her land by means of mutation by gift in 1962. She "....Was wonder struck to know that the defendant No,1 has obtained a forged and fictitious Mutation No,47 attested on 23-2-1962 alleged to have been gifted away 151 Kanals 4, Marlas by the plaintiff and others." (Underlining is for emphasis). Claiming that neither she nor her other sister had appeared before the Revenue Officer and that this mutation was "....Fictitious based on fraud, procured by means of impersonation and by producing a fictitious lady before the Revenue Officials", (Underlining is for emphasis), she brought the suit further claiming that defendant No,1 Abdul Aziz alleged subsequent gift of 252 Kanals, 1 Marla in the names of defendants Nos.2 and 3 vide Mutation No,58 attested on 5-4-1963 was also not binding on her and she never handed over the possession to defendant Abdul Aziz and that all proceedings were " the result of fraud, collusion, misrepresentation and impersonation."

(Underlining is for emphasis). Further alleging that she obtained the knowledge of the mutations in February, 1992 whereafter she got the requisite copies and on defendants refusing to accept her demand for treating the mutations and entries as fraudulent etc. And to admit her as owner of 50 Kanals, 8 Marlas of the suit land, she made the following prayer:-- "Under the circumstances, it is respectfully prayed that a decree for declaration to the effect that the plaintiff is owner in Khewat No,12, Khatuni 13, measuring 4 Kanals and Khewat No,13, Khatuni Nos.31 to 34 measuring 122 Kanals, 3 Marlas and Khewat No,14 Khatuni Nos.35 to 37 area 146 Kanals, 2 Marlas to the tune of 5 Kanals, 8 Mamas as recorded in Register of Rights for the year 1987-88 and declaration to the effect that Mutation No,47 attested on 23-2-1962 and Mutation No,58 attested on 5-4-1963 relating to the suit land situated in Chak No,10/1-L, Tehsii and District Okara, are illegal, against facts, result of fraud, misrepresentation collusive with the Revenue Officers and Revenue Staff, based on impersonation, void and ineffective against the rights of the plaintiff alongwith a decree for permanent injunction restraining the defendants 1 to 3 from refusing to admit the plaintiff's title to 50 KamIs, 8 Marlas of land and alienating the suit land by any mean, be passed in favour of the plaintiff against the defendants 1 to 3 alongwith costs."

4. All the three defendants in the suit, controverted the contents of the plaint in their written statements (one by defendants Abdul Aziz and Ibrahim and the other by defendant Abdul Raheem) whereafter the parties went on trial on the following issues:-- "(1) Whether the suit is barred by time? OPD

(2) Whether the plaintiff is estopped to file this suit by her words and conduct? OPD

(3) Whether the defendants are entitled to special costs under section 35-A, C.P.C.?

(4) Whether the suit is barred by section 42 of Specific Relief Act? OPD

(5) Whether valuation of suit property has not been determined correctly ? If so, what is the correct valuation? OPD

(6) Whether the Mutation No,47, dated 23-2-1962 and Mutation No,58, dated 5-4-1963 relating to the suit property are illegal, against facts, result of fraud, misrepresentation, void and ineffective upon the rights of the plaintiff? OPP

(7) Whether the plaintiff is entitled to declaration and permanent injunction as prayed for? OPP

(8) Whether the plaintiff and her sister had validity gifted the suit property to the defendant No,1?

OPD

(9) Relief."

5. The learned trial Court recorded whatever evidence the parties wanted to produce in the cause and proceeded with deciding Issues Nos.1, 2, 4 and 8 in favour of defendants while Issues Nos.6 and 7 were decided against the plaintiff/ Mst. Jannatay Bibi. Issue No,5 was resolved against the defendants. The suit was dismissed on 3-11-1994.

6. Plaintiff successfully challenged the judgment and decree dated 3-11-1994 of the learned Civil Judge, Okara before a learned Additional District Judge, Okara. The learned Additional District Judge dismissed the appeal of the plaintiff by attending to the crucial Issues Nos.6, 7 and 8 dealing, respectively, with: (1) Mutations Nos.47 and 58, dated 23-2-1962 and 5-4-1963; (2) entitlement of the plaintiff to declaration and permanent injunction; (3) the plaintiff's sister having validly gifted the suit property to defendant Abdul Aziz and (4) Issue No,1 pertaining to limitation. The learned Additional District Judge made detailed references to the evidence brought on the record and the case-law Muhammad Yar v. Qaim Khatoon 1989 CLC 1737, Noor Muhammad v. Mst. Karim Bibi (PLD 1959 (W.P.) Lahore 932) and Hakim Khan v. Nazir Ahmad Lugomani (1990 MLD (Peshawar) 89) to hold that: (1) story of gift was doubtful and the presence of a person at the time of sanction of mutation by Revenue Officer, would not stand in his or her way to challenge such mutation through a declaratory suit; (2) an illiterate woman is entitled to protection of law; (3) presumption of truth attaches to the entries in Jamabandis but is rebuttable when challenged on the ground of fraud and misrepresentation, and (4) as regards limitation, the learned Additional District Judge referred to Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCM R 2063) wherein the provisions of section 28 of Limitation Act, 1908 were held to be repugnant to the Injunctions of Islam and to Ghulam Ali v.

Ghulam Sarwar Naqvi (PLD 1990 SC 1) holding that no limitation runs in case of wrong mutations, which confer no right in property on a female heir. This happened on 21-9-1995.

7.' Appellants' civil revision under section 115, C.P.C. Was dismissed by a learned Judge in Chambers through the impugned judgment by relying upon Ghulam Haider v. Sooban Bibi and others (1986 M LD 1952), Hakim Khan (supra), Muhammad v. Mst. Rehman through Mst. Sharifan Bibi (1998 SCM R 1354) as also Shamshad Ali Shah and others v. Syed Hussain Shah and others (PLD 1964 SC 143) holding that respondent Mst. Jannantay Bibi could not be non-suited. The learned Judge in Chambers also relied upon Ghulam Ali (supra) to resolve the question of limitation in favour of respondent/plaintiff Mst. Jannatay Bibi.

8. It appears that dismissal of Mst. Jannatay Bibi's suit by the learned Civil Judge was a short-lived dispensation and the learned Additional District Judge as also the learned Judge in Chambers put an end to her agony by respectively holding and confirming her entitlement to the land in suit by exercising their respective jurisdictions under sections 96 and 115 of the Code of Civil Procedure.

1908.

9. Mr. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court appearing in support of this petition, was content with submitting that (1) that the suit was beyond time as Article 120 of the Limitation Act is applicable to this case and (2) that on the facts and circumstances of the instant case, respondent Mst. Jannatay Bibi having not been supported in her stance by her sister--Mst.

Aisha Bibi D.W.1 and the documentary evidence in the shape of mutations of the years 1962 and 1963 having been duly reflected in the Record of Rights, she could not be allowed the relief either by the learned Additional District Judge or by the High Court. According to him, the transaction of gift being more than 30 years' old, the same could not be challenged by the respondent after the expiry of 6 years. It was lastly contended by him that respondent Mst. Jannatay Bibi was one of the 3 sisters who had gifted the land in Chak No,10/1-L falling to their respective shares through Mutation No,47 attested on 23-2-1962 (Exh.D.5) and that prior to the attestation of the same, they had lodged a report to the Patwari about the gift (Exh.D.14) with the result that petitioner's predecessor-in-interest namely Abdul Aziz was admitted, by all concerned, to be in exclusive possession of the gifted land which facts are sufficient to deny any right to respondent/plaintiff Mst. Jannatay Bibi to make a suit for declaration and permanent injunction. In this behalf, reference was also made to Gift Mutation No,58, dated 25-4-1963.. (Exh.D-6), Khasra Girdawari from Kharif 1964 to Rabi 1988 (Exh.D.7) indicating that sons of Abdul Aziz, petitioners herein, remained in continuous possession of the lands in question as owners to date as also to Register Haqdaran Zamin for the year 1963-64 (Exh.D.8), for the same purpose.

10. Mr. Gul Zarin Kiani, learned Advocate Supreme Court representing caveator/respondent No,1, has generally supported the impugned judgment and submitted that case of Hakim Khan (supra) squarely supports the case of his client Mst. Jannatay Bibi and that the petitioners have no case to plead for the reversal of the impugned judgment which, in its own turn, has upheld the judgment and decree of the Appellate Court.

11. We have heard the learned counsel for the parties at length and have also carefully gone through the material on the record. It is an admitted position that the learned Judge in Chambers was seized of the matter under section 115, C.P.C. And that it was the burden of the petitioner to bring their case within four corners of the provisions of clauses (a), (b) and (c) of subsection (1) of section 115, C.P.C. Which read thus:-- "(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears---

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."

' Mr. Ch. Mushtaq Ahmed Khan was asked to indicate which clause or clauses of subsection (1) of section 115, C.P.C. Support his plea that the judgment impugned before the High Court suffers from any one of combination of the above-quoted infirmities. Except for alleging that the impugned transactions having been duly reflected in the revenue record and that respondent/ plaintiff Mst.

Jannatay Bibi had no right in law to make the suit after the expiry of 6 years, he did not even so much as refer to any jurisdictional error in the impugned judgment. We are afraid the frame of the suit was duly attended to by the Appellate Court while dealing with the appeal of respondent Mst.

Jannatary Bibi. The findings recorded by it were upheld by the learned Judge in Chambers with the observations that the learned Civil Judge was in error in holding that the suit was not maintainable.

The Appellate Forum was competently seized of the matter and that it had the jurisdiction to decide the appeal of respondent Mst. Jannatay Bibi, one way or the other. To attract the provisions of either one of the clauses of subsection (1) of section 115, C.P.C. The revision petitioner is legally obliged to make out a case for exercise of its jurisdiction by the High Court. His burden is to prove that either the Appellate Forum was not-possessed of the jurisdiction to decide the matter as it has done or that it has declined to exercise jurisdiction vested in it or that it has acted in the exercise of its jurisdiction illegally or with material irregularity. It is trite law that in the absence of either one of the above 3 conditions forthcoming in a given case, the revisional Forum, in this case, the High Court, can ill-afford to reverse the findings of the Appellate Forum. See Muhammad Bakhsh v.

Muhammad Ali (1984 SCM R 504) .

12. The learned Judge in Chambers came to the following conclusions in relation to the gift mutation:- "9 When we sift the statement made by Mst. Aisha Bibi D.W.1 in the light of other documentary evidence on record, the gift mutation falls short of full credence. Mst. Aisha Bibi made categorically statement that all the three sisters had assembled in the Bethak of Ch. Abdul Haque at Chak No,10/1-L and had consented with pleasure in respect of gift in favour of Abdul Aziz, respondent- defendant No, 1 . This fact was denied by Abdul Sattar D.W.3 and Mutation No,47 Exh.P.1. Wherein the Revenue Officer had attested the mutation in Chak No,11/1-L. There was much distance (of 20 acres) between the two Chaks. Mst. Aisha also stated that all the three sisters had thumb-marked the mutation alongwith Haji Abdul Aziz but perusal of impugned mutation Exh.P.1 revealed that no thumb-impression was present of any person on it. Mst. Aisha further stated that it was a prime heat season whereas the mutation was attested on 22-2-1962 which was a winter seasons.

According to her she was identified by Abdul Haque and that no Lamberdar or member of the Deh was present except Abdul Rehman and Abdul Haq. But Abdul Sattar D.W.3 deposed that it was only he who had identified the ladies at the time of attestation and that Abdul Rehman and Abdul Haque were not present at that time. The respondent-defendant has produced Rapt No,226 as Exh.D.14 on record. This document was dated as 4-2-1962. The entries of this document revealed that all the three ladies had appeared before Patwari and had consented to oral sale of their respective shares in favour of Abdul Aziz respondent-defendant. This document belied the story of gift allegedly made by the sisters in favour of their brother.

"10 When oral evidence adduced by the respondent-defendant as discussed above is put in the light of legal scale. If find that the story of gift was doubtful. The contention of the respondent- defendant No,1 that on the day of attestation of impugned gift mutation Exh.P.1 the husband of appellant-plaintiff namely Ghulam Muhammad was present in the same "Jalsa-i-Aam" as is evident from Mutation No,43, Exh.D.9, is not of much importance. Because, presence of a person at the time of sanction of mutation by Revenue Officer, would not estop him or her to challenge mutation through declaratory suit. Reliance can be placed on Muhammad Yar v. Qaim Khatoon (1989 CLC 1737)."

' The findings as above could be rendered by the learned Judge in Chambers in the exercise of his jurisdiction under section 115, C.P.C. It is not the case of the petitioners that the learned Judge in Chambers did not consider the entire evidence in this case to reach the conclusion that the learned Additional District Judge was in error in reversing the judgment and decree of the trial Court and in decreeing the suit of the plaintiff/ respondent Mst. Jannatay Bibi.

13. The contention that the suit of Mst. Jannatay Bibi was beyond time is also misconceived in that the findings about the procurement of the gift was rightly held to be doubtful by the learned Additional District Judge and the learned Judge in Chambers. The story of gift having been held to be doubtful, the same is in itself sufficient to take the instant case out of the purview of the period of limitation prescribed in Article 120 of the Limitation Act (No,IX of 1908).

14. Before parting with this order, it may be observed that petitioners predecessor-in-interest i,e,, defendant Abdul Aziz did not enter the witness-box and thereby failed to discharge the burden of proof on him to establish a valid gift. Further, the absence of the Revenue Officer, who allegedly attested the mutation, is also conspicuous and tells a lot about the nature of the alleged transaction of gift being what it has been held to be by the Appellate Forum with which the High Court has concurred. The learned Judge in Chambers considered the peculiar circumstances of this case and rightly relied upon the case of Ghulam Ali (supra) for coming to the conclusion that the tendency in this part of the country that male members of the family try to deprive the females of their legitimate inheritance is dying out by inches and that the very spirit of this tendency is kept alive by perpetrating fraud with the connivance of the Revenue Officials .

15. Viewed in whatever perspective, the impugned judgment has not been shown to be suffering from any illegality much less a jurisdictional error, to call for interference therewith in the proceedings. Resultantly, this petition is dismissed and leave refused.