BASHIR AHMAD and another vs MUHAMMAD RAFIQ
This petition for leave to appeal challenged an order of the Lahore High Court, which dismissed a civil revision against a decree favoring the respondent. The underlying dispute involved a suit for declaration and injunction filed by the respondent, challenging a mutation based on an alleged oral gift of landed property made by the parties' predecessor-in-interest. The core legal question was whether the petitioners successfully established the validity of the oral gift. The Supreme Court of Pakistan reviewed the evidence and affirmed the findings of the lower courts, noting that the petitioners failed to prove the factum of the gift. Specifically, the record lacked evidence regarding the date, time, venue, or witnesses of the alleged transaction. Furthermore, the mutation relied upon by the petitioners was contradicted by the testimony of the Lumberdar, who appeared for the respondent and stated the donor lacked the capacity to comprehend the transaction. Additionally, there was no evidence of the delivery of possession. Consequently, the Supreme Court dismissed the petition, holding that the petitioners failed to demonstrate any legal infirmity in the impugned order.
- Is a mutation entry sufficient to prove the validity of an oral gift in the absence of independent evidence?
- Does the failure to prove the delivery of possession invalidate an alleged oral gift of property?
- Can a civil revision be maintained when the petitioner fails to establish the essential elements of an oral gift?
ORDER
1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the order dated 3-12-2001 of a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No,5 of 2001 filed by the petitioners was dismissed.
2. ' This case has got a chequered history as both the parties, who are real brothers, are embroiled in litigation for the last about two decades. The respondent, Muhammad Rafique, filed a suit for declaration and injunction on 5-11-1983 taking exception to Mutation No,411 dated 17-3-1982 based upon an oral gift made by Muhammad Ismail, predecessor-in-interest of the parties, giving his entire landed property measuring 121 Kanals, 11 Marlas to the petitioners. The petitioners controverted the pleas taken by the respondent in his suit. Issues were framed by the learned trial Court. The said suit was dismissed by the learned Civil Judge, Okara, on 1-10-1985. The respondent filed an appeal and the learned Additional District Judge, Okara, through his judgment dated 19-12- 2000 accepted the same and the suit filed by the respondent was decreed. The petitioners filed a civil revision against the aforesaid judgment of the first Appellate Court, which has been dismissed through an order dated 3-12-2001 passed by a learned Single Judge of the Lahore High Court, Lahore. Hence this petition.
3. ' We have considered the contentions raised by the learned counsel for the petitioners and have gone through the entire material placed on record with his assistance. We have noticed that there is not an iota of evidence on record to support the oral gift allegedly made by Muhammad Ismail, predecessor-in-interest of the parties. The learned Single Judge of the Lahore High Court while dismissing the civil revision filed by the petitioners has dealt all these aspects of the case in the following manner:-- "I have heard learned counsel for the parties and find that the petitioners have not been able to independently prove the factum of gift; no date, time, venue and person in whose presence, gift was made, has been established. Learned counsel for the petitioner, mainly relies upon the mutation. The only witness of the imitation i.e, Lumberdar, who also identified Muhammad Ismail, was not produced rather he appeared from the plaintiff's side and had contradicted the mutation by saying that Muhammad Ismail was unable to comprehend about the nature of transaction; there is nothing on the record that possession was accordingly delivered on the time, when the gift was made; no specific change in possession in pursuance of the gift was made."
4. ' Learned counsel for the petitioners has failed to point out any legal infirmity in the impugned order waranting interference by this Court.
5. ' Resultantly, for foregoing discussion, the present petition being without any merit is hereby dismissed and leave declined.
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