2010 C L C 746
2010 C L C 746
[Lahore]
Before Raja Muhammad Shafqat Khan Abbasi, J
MUHAMMAD IBRAHIM and 6 others----Petitioners
Versus
DIL MORE and 19 others----Respondents
Civil Revision No.1247-D of 2003, decided on 10th July, 2009.
(a) Specific Relief Act (I of 1877)---
----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Sanction of mutation---Absence of executor---Effect---Mother of the plaintiff filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through inheritance by her father---Trial Court decreed the suit in favour of the plaintiffs----Defendants filed appeal which was dismissed by Appellate Court---Mother of the plaintiff asserted that the impugned mutation of Tamleek whereby her share in inheritance of disputed property, which was alleged by defendants to have been donated by her to defendants, was illegal, unlawful result of fraud and ineffective upon her rights---Validity---Plaintiffs being legal representatives stood in the shoes of their predecessor-in-interest---Defendant's witness in his cross-examination had admitted that mother of the plaintiffs was not present in one of the mutations when the same was sanctioned but was shown to have been present at the time of other mutation---Defendants failed to produce those persons as witnesses who had allegedly identified t e mother of the plaintiffs/executor---Ruptt Roznamcha Waqiati indicated that no signature or thumb-impression of any doner nor identified or attested witnesses were present there---Defendants had not produced any Revenue Officer to establish the factum of gift---Both the courts below had rightly come to the conclusion that mother of the plaintiffs had not voluntarily gifted the disputed property through impugned mutation---High Court declined to interfere in revisional jurisdiction.
Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Muhammad Ali and 6 others v. Mst. Hameedan Begum 2001 CLC 265 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743 rel.
(b) Specific Relief Act (I of 1877)---
----S. 42--Suit for declaration---Inheritance---Limitation---Scope---Mother of the plaintiffs filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through her father---Trial Court decreed the suit of the plaintiffs---Defendants filed appeal which was dismissed by Appellate Court---Contention of the defendants was that mother of the plaintiffs had no cause of action, suit was barred by time and she had waived her right as she had compromised with them and in lieu of compromise she had withdrawn the appeal filed by her before AdditionalCommissioner (Revenue)---Validity---Fraud, vitiate more solemn affirmation and no limitation runs against void orders based on fraud---High Court repelled the contention by the defendantsregarding estoppel, waiver and laches on the part of the mother of the plaintiffs---Mother of the plaintiff had filed suit within time, her brothers had illegally deprived her of her share which she got from inheritance of her father through mutation in the year 1996---Perusal of the impugned judgments and decrees revealed that the conclusions arrived at by both courts below were elaborate and were based on cogent reasons---No misreading or non-reading of evidence or any other legal infirmity in judgment rendered by the courts below warranting interference by High Court.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Ghulam Haider v. Mst. Sooban Bibi and others 1986 MLD 1952; Hakim Khan v. Nazeer Ahmed Laughmani and 10 others 1992 SCMR 1832; Muhammad v. Mst. Rehman through Mst. Sharifan Bibi 1998 SCMR 1354; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932; Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmed 2007 SCMR 926 rel
Sahibzada Mehboob Ali Khan for Petitioners.
Kanwar Iqbal Ahmad Khan for Respondents.
Date of hearing: 2nd July, 2009.
JUDGMENT
RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.--Through this revision petition, petitioner/ Muhammad Ibrahim and six other, have assailed order dated 2-11-2002 passed by the Civil Judge, Lodhran whereby suit filed by the respondents/plaintiffs predecessor-in-interest of Mst. Shitabi for declaration was decreed and order dated 4-12-2003 passed by the Additional District Judge, Lodhran whereby appeal filed by the petitioner was dismissed.
2. Brief facts of the case are that Mst. Shitabi, mother of the respondents Nos.1 and 2/plaintiffs filed s a s suit s for s declaration against the present defendants before the Court of learned Civil Judge, Lodhran on 11-7-1990, alleged in it that she was owner in possession of the suit property which was inherited by her through inheritance by her father Taj Muhammad (deceased) through inheritance Mutation No.111 dated 14-11-1966. She further alleged in the plaint that impugned mutation of Tamleek No.112 dated 14-11-1966 whereby her share in the inheritance of her father which was received by her through inheritance mutation by her through inheritance Mutation No.111, allegedly donated by her to defendants, Muhammad Ibrahim, Malooka and Saeed Ahmad (real brothers), is illegal, unlawful, result of fraud and ineffective upon her rights. It was further alleged by Mst. Shitabi in the plaint that impugned order dated 3-11-1974 passed by Assistant Commissioner/Collector, Lodhran, District Multan and order dated 26-11-1974 passed by Additional Commissioner, Revenue Multan are also illegal, unlawful and against the facts of the case and ineffective upon her rights. She prayed that impugned order be declared null and void. Defendants Muhammad Ibrahim, Malooka and Saeed Ahmed filed written statements, disclosed that suit property had transferred to others, who had not been impleaded as defendants. So Mst. Shitabi filed amended plaint and remaining appellants of both the appeals as defendants.
3. Defendants/respondents contested the suit, filed written statements separately, raised preliminary objections and denied parawise facts of the plaint. Defendants/respondents Muhammad Ibrahim, Malooka and Saeed Ahmed alleged in written statement that Mst. Shitabi, respondent/plaintiff (mother of plaintiffs/respondents Nos.1 and 2) had no cause of action, suit was barred by time, had waived her right as she had compromised with them and in lieu of compromise she withdrew the appeal filed by her before Additional Commissioner (Revenue), Multan. They further alleged in written statement that Mst. Shitabi alienated her share through impugned Mutation No.112 which was sanctioned in accordance with law.
4. Out of divergent pleadings of the parties and recording of the evidence learned trial Court decreed the suit in favour of the respondent/plaintiff i.e. Dil More Arshad and against the petitioners by holding that impugned mutations have been sanctioned in validation of law. Petitioners/defendants Muhammad Ibrahim and 7 others as well as Ghulam Muhammad and 14 others have assailed in the appeal, judgment and decree dated 2-11-2003 passed by the learned trial Court which was dismissed by the learned Additional Sessions Judge, Lodhran on 4-12-2003, and upheld the judgment and decree of the learned trial Court, hence, this revision petition filed by the successor in interest of Muhammad Ibrahim, namely, Taj Muhammad and Muhammad Ibrahim and S.A. Wali.
5. Arguments heard. Record perused.
6. Plaintiffs/respondents in order to prove their case produced Mst. Shitabi as P.W. 1 and Muhammad Ismail as P. W.2, Ibrahim as P.W.3, Dil More as P.W.4. Mst. Shitabi again appeared in witness box in rebuttal evidence as P.W. They tendered copy of inheritance mutation as Exh.P. 1, copy of impugned Tamleek Mutation No.112 dated 14-11-1966 as Exh.P.2, copy of compromise as Exh.P.3, copy of order dated 26-11-1974 as Exh.P.4, copy of contents of revision in the Court of Additional Commissioner, Revenue as Exh.P.5, copy of Register Hadrian Amin as Exh.P.6, copy of Jamabandi 1987-88 as Exh.P.7, copy of contents of appeal as Exh.P.8, copy of order of A.C/Collector dated 30-11-1973 as Exh.P.9, copy of Mutation No.1076 dated 12-2-1981 as Exh.P.10, copy of Mutation No.2060 dated 29-1-1990 as Exh.P.11, copy of Mutation No.1454 dated 23-6-1984 as Exh.P.12, copy of Mutation No.1214 dated 22-2-1982 as Exh.P.13, copy of Mutation No.1215 dated 11-3-1982 as Exh.P.14, copy of Mutation No.523 dated 19-6-1974 as Exh.P.15, Mutation No.2491 dated 27-2-1994 as Exh.P.16, Mutation No.1900 dated 29-4-1989 as Exh.P.17 and Mutation No.1982 dated 10-9-1989 as Exh.P.18 in order to substantiate their contentions.
7. On the other hand, the defendants produced Abid Hussain Patwari as D.W.1, Nazar Muhammad Retired Patwari as D.W.2, Muhammad Ramzan as D.W.3, Ibrahim as D.W.4 and in rebuttal evidence, defendants Nos.5 to 26 produced Muhammad Ramzan as D.W.1 and they tendered copy of Khasra as Exh.D.1, copy of Khasra Girdawari as D.W.2, copy of order of Additional Commissioner as Exh.D.3 and copy of order of A.C. as Exh.D.4 and again they produced Ruptt. No.84 Exh.D-1 and Mutation No.112 Exh.D-2 in order to belie and to refute the contention of the plaintiff.
8. Admittedly, the plaintiff/respondents and defendants are real sister and brothers. The plaintiff according to the inheritance Mutation No.111 dated 14-11-1966 Exh.P.1 had become owner in possession. As possession of the one co-sharer is to be considered on behalf of the other co-sharers. The present respondents/plaintiff being legal representatives stand in the shoes of their predecessor-in-interest Mst. Shitabi D.W.2 Nazir Muhammad in his cross-examination has admitted that Mst. Shitabi was not present in Mutation No.112 Exh.D.2. Mutations Nos.111 and 112 were sanctioned on the same day i.e. 14-1-1966. Mst. Shitabi was not present at the time of attestation of Mutation No.111 but she was shown present at the time of Mutation No.112. Defendants failed to produce Shah Muhammad, Numberdar and Munu Khan who have allegedly identified Mst. Shitabi. Impugned mutations (Exh.P.2, Exh.D.2) Exh. D.1 Ruptt Roznamcha Waqiati indicates that no signature or thumb-impression of any donor nor identified or attested witnesses. Petitioners/defendants have not produced any Revenue Officer to establish fact of gift. Defendants have not proved the valid gift. Under section 149 of Mohammedan Law three requisite conditions of gift i.e. (i) offer by donor (ii) acceptance by donee (iii) immediate transfer of possession in clear and unequivocally have not been proved. Reliance is placed on Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194. It is settled principle of law that the moment donor denies the execution of gift, burden of proof shifted to donee, the beneficiary of the gift. Defendant failed to discharge the burden of proof. Evidence of Abid Hussain, D.W.1 and Muhammad Ramzan, D.W.3 have made contrary statements. Learned trial Court has observed following discrepancies and contradictions in the evidence of the D.Ws.
(i) D.W.1 in examination-in-chief claims that Exh.D-1 and Mutation No.112 Exh.D.2 are both these documents in his writings and signatures.
(ii) D.W.1, D.W.2 denied signature/thumb-impressions of any of the parties ''i.e. the donors and the donees upon Exh.D-1 and Exh.D-2, but D.W.3 Muhammad Ramzan in cross-examination speaks otherwise contradicting the witnesses and the documents Exh.D-1 and Exh.D-2 by saying that he has seen 3/4 signatures/thumb-impressions of the plaintiffs.
(iii) D.W.1 denies signature of Lumberdar on the disputed mutation Exh.D.2 while D.W.2 in his previous statement denied signature of Lumberdar, but in his present additional statement he says that the impugned mutation was signed by Shah Muhammad Lumberdar. But in the impugned mutation Exh. D.2 of Muno Khan has been mentioned.
(iv) According to D.W.2, the inheritance Mutation No.111 was entered on 3-11-1966 but the mutation exhibited as Exh.P.1 contains the date of entry as 10-11-1966 "Man can tell a lie but documents cannot," The witness realizing his blunder tried to reconcile the entries of both the mutations Exh.P.1 and Exh.D.2 by his oral evidence. So, much so he has felt no hesitation in converting the figure "10" into figure "14" on the impugned Mutation No.112 Exh. P-2 and Exh. D-2 by overwriting without getting initials on this overwriting.
(v) The D.W.2 in his previous statement dated 30-5-1994/95, the place at which Mutation No.112, Exh.P.2 and Exh.D.2 was sanctioned has stated as under:---
But in his present additional statement recorded on 14-9-1002, he states as under:-
(vi) According to his previous statement, D.W.2 did not know the name of the Lumberdar, who attested the mutation and stated that has been mentioned but in the present statement recorded on 14-9-2002, he stated that Shah Muhammad Lamberdar was the person in whose presence the mutation was sanctioned, while the document Exh.D.2 and Exh.P.2 contains the name of Munoo Khan in whose presence the mutation was produced as witness.
(vi-A) D.W.2 was present while recording the statement of D.W.1 thus, his evidence has no value.
9. In this view of the matter, both the Courts below have rightly come to the conclusion that Mst. Shitabi has not voluntarily gifted the suit property through Mutation No.112 in favour of defendants Nos.2 to 14. It is settled principle of law that mutation itself cannot be treated as document of title. It is meant only for a fiscal purpose if basic mutation in favour of defendants Nos.2 to 4 is without lawful authority then the subsequent mutation will also be void qua the rights of the respondents/plaintiff. It is settled principle of law where the basic order is void the superstructure built will fell on the ground automatically defendant Nos.2 to 4 cannot pass the little better than they themselves possess, hence, as no title has passed to the subsequent purchaser in respect of the suit property under the law. Reference can be made in this regard to Muhammad Ali and 6 others v. Mst. Hameedan Begum 2001 CLC 265 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743.
10. It may be observed that dismissal of previous suit as withdrawn will not operative as res judicata. Both the Courts have not read the Exh.P.3 which is application on behalf of the respondents' mother for withdrawal of her appeal before Additional Commissioner (Revenue), Multan on 3-4-1974. While the learned trial Court vide his judgment and decree dated 2-11-2002 had decided issue No.1, 2, 11-A and 11-B in favour of plaintiff (mother of respondents No.1 and 2), who have discharged her onus and shifted on the shoulders of defendants claiming title on the basis of subsequent mutations which is Mutation No.112 dated 10-11-1966 and Mst. Shitabi plaintiff has not voluntarily gifted away the suit property in favour of defendants No.2 to 4 presence of donor is necessary at the time of gift while in this case donor was not present at the time, when Mutation No.112 was sanctioned, trial Court has fully discussed this fact in paragraphs 8 to 18, while appellate Court have also specifically discussed Exh. P.3 in impugned judgment dated 4-12-2003 in paragraph 9 of the judgment. It is established principle of law that fraud, vitiate more solemn affirmation and no limitation runs against void orders based on fraud. I am not impressed by the contention raised by the learned counsel for petitioner regarding estoppel, waiver and laches on the part of the Mst. Shitabi. She has filed a suit within time. Her brother, namely, Malooka, Ibrahim and Saeed have illegally deprived her from her share which she got from inheritance of her father through Mutation No.111 dated 10-11-1966, hence, suit filed by the petitioner is within time. I am fortified by the dictum laid down in case titled as Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
11. There is no dispute regarding the relationship of the parties who are brothers and sisters inter se. Mat. Shatangri is widow, Mat. Shitabi (daughter), whereas defendant No.1/Dil More, defendant No.2/Arshad Ali are the sons of Mat. Shitabi. Disputed property was inherited by the parties from their father. It has been held in the case Ghulam Haider v. Mat. Sooban Bibi and others 1986 MLD 1952 that "it is for beneficiaries of such entries to prove that entries based on admission of a party were affirmatively against its maker both as regards identity of maker and contents of statement attributed to him." Similarly, it has been further held in case Hakim Khan v. Nazeer Ahmed Laughmani and 10 others 1992 SCMR 1832 that "mutation by itself does not create title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property." It has been further held in Muhammad v. Mst. Rehman through Mst. Sharifan Bibi 1998 SCMR 1354 that "it is well-settled that where any sale-deed is executed by an illiterate lady, it is for the purchaser to establish that she had executed it if her own free-will under independent device from her relations and fully knowing the nature of the transaction." Similarly, it has been held in case Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 that "delivery of possession depends on the intention of the donor and that intention is not sufficiently proved in a case where she is old, ailing, under apprehension of death and in the hands of the donee by a formal recital of delivery of possession in the gift deed." It was further held in Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932 that "Donor an illiterate woman is entitled to protection as Parda Nashin though not observing Parda in a position of exerting undue influence. Onus on donee to show that gift was made without exercising influence. Gift was set aside." These judgments clearly applicable to the facts of the case.
12. Perusal of the impugned judgments and decrees reveals that the conclusions arrived at by both the Courts below are elaborate and are based on cogent reasons. The learned counsel for the petitioners have pointed out no misreading or non-reading of evidence or any other legal infirmity with the judgments rendered by the Courts below warranting interference by this Court in revisional jurisdiction. As per the dictum of law laid down by honourable apex Court in cases of Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236, Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmed 2007 SCMR 926, concurrent findings of fact recorded by the Courts below are not open to exception unless it is established that the same suffered from any jurisdictional defect or were based on misreading or non-reading of evidence, which elements are conspicuously lacking in the present civil revision.
13. Resultantly, there being no merit in this revision petition, the same is hereby dismissed. No order as to costs.
M.U.Y./M-675/L Petition dismissed.
[Lahore]
Before Raja Muhammad Shafqat Khan Abbasi, J
MUHAMMAD IBRAHIM and 6 others----Petitioners
Versus
DIL MORE and 19 others----Respondents
Civil Revision No.1247-D of 2003, decided on 10th July, 2009.
(a) Specific Relief Act (I of 1877)---
----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Sanction of mutation---Absence of executor---Effect---Mother of the plaintiff filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through inheritance by her father---Trial Court decreed the suit in favour of the plaintiffs----Defendants filed appeal which was dismissed by Appellate Court---Mother of the plaintiff asserted that the impugned mutation of Tamleek whereby her share in inheritance of disputed property, which was alleged by defendants to have been donated by her to defendants, was illegal, unlawful result of fraud and ineffective upon her rights---Validity---Plaintiffs being legal representatives stood in the shoes of their predecessor-in-interest---Defendant's witness in his cross-examination had admitted that mother of the plaintiffs was not present in one of the mutations when the same was sanctioned but was shown to have been present at the time of other mutation---Defendants failed to produce those persons as witnesses who had allegedly identified t e mother of the plaintiffs/executor---Ruptt Roznamcha Waqiati indicated that no signature or thumb-impression of any doner nor identified or attested witnesses were present there---Defendants had not produced any Revenue Officer to establish the factum of gift---Both the courts below had rightly come to the conclusion that mother of the plaintiffs had not voluntarily gifted the disputed property through impugned mutation---High Court declined to interfere in revisional jurisdiction.
Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Muhammad Ali and 6 others v. Mst. Hameedan Begum 2001 CLC 265 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743 rel.
(b) Specific Relief Act (I of 1877)---
----S. 42--Suit for declaration---Inheritance---Limitation---Scope---Mother of the plaintiffs filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through her father---Trial Court decreed the suit of the plaintiffs---Defendants filed appeal which was dismissed by Appellate Court---Contention of the defendants was that mother of the plaintiffs had no cause of action, suit was barred by time and she had waived her right as she had compromised with them and in lieu of compromise she had withdrawn the appeal filed by her before AdditionalCommissioner (Revenue)---Validity---Fraud, vitiate more solemn affirmation and no limitation runs against void orders based on fraud---High Court repelled the contention by the defendantsregarding estoppel, waiver and laches on the part of the mother of the plaintiffs---Mother of the plaintiff had filed suit within time, her brothers had illegally deprived her of her share which she got from inheritance of her father through mutation in the year 1996---Perusal of the impugned judgments and decrees revealed that the conclusions arrived at by both courts below were elaborate and were based on cogent reasons---No misreading or non-reading of evidence or any other legal infirmity in judgment rendered by the courts below warranting interference by High Court.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Ghulam Haider v. Mst. Sooban Bibi and others 1986 MLD 1952; Hakim Khan v. Nazeer Ahmed Laughmani and 10 others 1992 SCMR 1832; Muhammad v. Mst. Rehman through Mst. Sharifan Bibi 1998 SCMR 1354; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932; Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmed 2007 SCMR 926 rel
Sahibzada Mehboob Ali Khan for Petitioners.
Kanwar Iqbal Ahmad Khan for Respondents.
Date of hearing: 2nd July, 2009.
JUDGMENT
RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.--Through this revision petition, petitioner/ Muhammad Ibrahim and six other, have assailed order dated 2-11-2002 passed by the Civil Judge, Lodhran whereby suit filed by the respondents/plaintiffs predecessor-in-interest of Mst. Shitabi for declaration was decreed and order dated 4-12-2003 passed by the Additional District Judge, Lodhran whereby appeal filed by the petitioner was dismissed.
2. Brief facts of the case are that Mst. Shitabi, mother of the respondents Nos.1 and 2/plaintiffs filed s a s suit s for s declaration against the present defendants before the Court of learned Civil Judge, Lodhran on 11-7-1990, alleged in it that she was owner in possession of the suit property which was inherited by her through inheritance by her father Taj Muhammad (deceased) through inheritance Mutation No.111 dated 14-11-1966. She further alleged in the plaint that impugned mutation of Tamleek No.112 dated 14-11-1966 whereby her share in the inheritance of her father which was received by her through inheritance mutation by her through inheritance Mutation No.111, allegedly donated by her to defendants, Muhammad Ibrahim, Malooka and Saeed Ahmad (real brothers), is illegal, unlawful, result of fraud and ineffective upon her rights. It was further alleged by Mst. Shitabi in the plaint that impugned order dated 3-11-1974 passed by Assistant Commissioner/Collector, Lodhran, District Multan and order dated 26-11-1974 passed by Additional Commissioner, Revenue Multan are also illegal, unlawful and against the facts of the case and ineffective upon her rights. She prayed that impugned order be declared null and void. Defendants Muhammad Ibrahim, Malooka and Saeed Ahmed filed written statements, disclosed that suit property had transferred to others, who had not been impleaded as defendants. So Mst. Shitabi filed amended plaint and remaining appellants of both the appeals as defendants.
3. Defendants/respondents contested the suit, filed written statements separately, raised preliminary objections and denied parawise facts of the plaint. Defendants/respondents Muhammad Ibrahim, Malooka and Saeed Ahmed alleged in written statement that Mst. Shitabi, respondent/plaintiff (mother of plaintiffs/respondents Nos.1 and 2) had no cause of action, suit was barred by time, had waived her right as she had compromised with them and in lieu of compromise she withdrew the appeal filed by her before Additional Commissioner (Revenue), Multan. They further alleged in written statement that Mst. Shitabi alienated her share through impugned Mutation No.112 which was sanctioned in accordance with law.
4. Out of divergent pleadings of the parties and recording of the evidence learned trial Court decreed the suit in favour of the respondent/plaintiff i.e. Dil More Arshad and against the petitioners by holding that impugned mutations have been sanctioned in validation of law. Petitioners/defendants Muhammad Ibrahim and 7 others as well as Ghulam Muhammad and 14 others have assailed in the appeal, judgment and decree dated 2-11-2003 passed by the learned trial Court which was dismissed by the learned Additional Sessions Judge, Lodhran on 4-12-2003, and upheld the judgment and decree of the learned trial Court, hence, this revision petition filed by the successor in interest of Muhammad Ibrahim, namely, Taj Muhammad and Muhammad Ibrahim and S.A. Wali.
5. Arguments heard. Record perused.
6. Plaintiffs/respondents in order to prove their case produced Mst. Shitabi as P.W. 1 and Muhammad Ismail as P. W.2, Ibrahim as P.W.3, Dil More as P.W.4. Mst. Shitabi again appeared in witness box in rebuttal evidence as P.W. They tendered copy of inheritance mutation as Exh.P. 1, copy of impugned Tamleek Mutation No.112 dated 14-11-1966 as Exh.P.2, copy of compromise as Exh.P.3, copy of order dated 26-11-1974 as Exh.P.4, copy of contents of revision in the Court of Additional Commissioner, Revenue as Exh.P.5, copy of Register Hadrian Amin as Exh.P.6, copy of Jamabandi 1987-88 as Exh.P.7, copy of contents of appeal as Exh.P.8, copy of order of A.C/Collector dated 30-11-1973 as Exh.P.9, copy of Mutation No.1076 dated 12-2-1981 as Exh.P.10, copy of Mutation No.2060 dated 29-1-1990 as Exh.P.11, copy of Mutation No.1454 dated 23-6-1984 as Exh.P.12, copy of Mutation No.1214 dated 22-2-1982 as Exh.P.13, copy of Mutation No.1215 dated 11-3-1982 as Exh.P.14, copy of Mutation No.523 dated 19-6-1974 as Exh.P.15, Mutation No.2491 dated 27-2-1994 as Exh.P.16, Mutation No.1900 dated 29-4-1989 as Exh.P.17 and Mutation No.1982 dated 10-9-1989 as Exh.P.18 in order to substantiate their contentions.
7. On the other hand, the defendants produced Abid Hussain Patwari as D.W.1, Nazar Muhammad Retired Patwari as D.W.2, Muhammad Ramzan as D.W.3, Ibrahim as D.W.4 and in rebuttal evidence, defendants Nos.5 to 26 produced Muhammad Ramzan as D.W.1 and they tendered copy of Khasra as Exh.D.1, copy of Khasra Girdawari as D.W.2, copy of order of Additional Commissioner as Exh.D.3 and copy of order of A.C. as Exh.D.4 and again they produced Ruptt. No.84 Exh.D-1 and Mutation No.112 Exh.D-2 in order to belie and to refute the contention of the plaintiff.
8. Admittedly, the plaintiff/respondents and defendants are real sister and brothers. The plaintiff according to the inheritance Mutation No.111 dated 14-11-1966 Exh.P.1 had become owner in possession. As possession of the one co-sharer is to be considered on behalf of the other co-sharers. The present respondents/plaintiff being legal representatives stand in the shoes of their predecessor-in-interest Mst. Shitabi D.W.2 Nazir Muhammad in his cross-examination has admitted that Mst. Shitabi was not present in Mutation No.112 Exh.D.2. Mutations Nos.111 and 112 were sanctioned on the same day i.e. 14-1-1966. Mst. Shitabi was not present at the time of attestation of Mutation No.111 but she was shown present at the time of Mutation No.112. Defendants failed to produce Shah Muhammad, Numberdar and Munu Khan who have allegedly identified Mst. Shitabi. Impugned mutations (Exh.P.2, Exh.D.2) Exh. D.1 Ruptt Roznamcha Waqiati indicates that no signature or thumb-impression of any donor nor identified or attested witnesses. Petitioners/defendants have not produced any Revenue Officer to establish fact of gift. Defendants have not proved the valid gift. Under section 149 of Mohammedan Law three requisite conditions of gift i.e. (i) offer by donor (ii) acceptance by donee (iii) immediate transfer of possession in clear and unequivocally have not been proved. Reliance is placed on Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194. It is settled principle of law that the moment donor denies the execution of gift, burden of proof shifted to donee, the beneficiary of the gift. Defendant failed to discharge the burden of proof. Evidence of Abid Hussain, D.W.1 and Muhammad Ramzan, D.W.3 have made contrary statements. Learned trial Court has observed following discrepancies and contradictions in the evidence of the D.Ws.
(i) D.W.1 in examination-in-chief claims that Exh.D-1 and Mutation No.112 Exh.D.2 are both these documents in his writings and signatures.
(ii) D.W.1, D.W.2 denied signature/thumb-impressions of any of the parties ''i.e. the donors and the donees upon Exh.D-1 and Exh.D-2, but D.W.3 Muhammad Ramzan in cross-examination speaks otherwise contradicting the witnesses and the documents Exh.D-1 and Exh.D-2 by saying that he has seen 3/4 signatures/thumb-impressions of the plaintiffs.
(iii) D.W.1 denies signature of Lumberdar on the disputed mutation Exh.D.2 while D.W.2 in his previous statement denied signature of Lumberdar, but in his present additional statement he says that the impugned mutation was signed by Shah Muhammad Lumberdar. But in the impugned mutation Exh. D.2 of Muno Khan has been mentioned.
(iv) According to D.W.2, the inheritance Mutation No.111 was entered on 3-11-1966 but the mutation exhibited as Exh.P.1 contains the date of entry as 10-11-1966 "Man can tell a lie but documents cannot," The witness realizing his blunder tried to reconcile the entries of both the mutations Exh.P.1 and Exh.D.2 by his oral evidence. So, much so he has felt no hesitation in converting the figure "10" into figure "14" on the impugned Mutation No.112 Exh. P-2 and Exh. D-2 by overwriting without getting initials on this overwriting.
(v) The D.W.2 in his previous statement dated 30-5-1994/95, the place at which Mutation No.112, Exh.P.2 and Exh.D.2 was sanctioned has stated as under:---
But in his present additional statement recorded on 14-9-1002, he states as under:-
(vi) According to his previous statement, D.W.2 did not know the name of the Lumberdar, who attested the mutation and stated that has been mentioned but in the present statement recorded on 14-9-2002, he stated that Shah Muhammad Lamberdar was the person in whose presence the mutation was sanctioned, while the document Exh.D.2 and Exh.P.2 contains the name of Munoo Khan in whose presence the mutation was produced as witness.
(vi-A) D.W.2 was present while recording the statement of D.W.1 thus, his evidence has no value.
9. In this view of the matter, both the Courts below have rightly come to the conclusion that Mst. Shitabi has not voluntarily gifted the suit property through Mutation No.112 in favour of defendants Nos.2 to 14. It is settled principle of law that mutation itself cannot be treated as document of title. It is meant only for a fiscal purpose if basic mutation in favour of defendants Nos.2 to 4 is without lawful authority then the subsequent mutation will also be void qua the rights of the respondents/plaintiff. It is settled principle of law where the basic order is void the superstructure built will fell on the ground automatically defendant Nos.2 to 4 cannot pass the little better than they themselves possess, hence, as no title has passed to the subsequent purchaser in respect of the suit property under the law. Reference can be made in this regard to Muhammad Ali and 6 others v. Mst. Hameedan Begum 2001 CLC 265 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743.
10. It may be observed that dismissal of previous suit as withdrawn will not operative as res judicata. Both the Courts have not read the Exh.P.3 which is application on behalf of the respondents' mother for withdrawal of her appeal before Additional Commissioner (Revenue), Multan on 3-4-1974. While the learned trial Court vide his judgment and decree dated 2-11-2002 had decided issue No.1, 2, 11-A and 11-B in favour of plaintiff (mother of respondents No.1 and 2), who have discharged her onus and shifted on the shoulders of defendants claiming title on the basis of subsequent mutations which is Mutation No.112 dated 10-11-1966 and Mst. Shitabi plaintiff has not voluntarily gifted away the suit property in favour of defendants No.2 to 4 presence of donor is necessary at the time of gift while in this case donor was not present at the time, when Mutation No.112 was sanctioned, trial Court has fully discussed this fact in paragraphs 8 to 18, while appellate Court have also specifically discussed Exh. P.3 in impugned judgment dated 4-12-2003 in paragraph 9 of the judgment. It is established principle of law that fraud, vitiate more solemn affirmation and no limitation runs against void orders based on fraud. I am not impressed by the contention raised by the learned counsel for petitioner regarding estoppel, waiver and laches on the part of the Mst. Shitabi. She has filed a suit within time. Her brother, namely, Malooka, Ibrahim and Saeed have illegally deprived her from her share which she got from inheritance of her father through Mutation No.111 dated 10-11-1966, hence, suit filed by the petitioner is within time. I am fortified by the dictum laid down in case titled as Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
11. There is no dispute regarding the relationship of the parties who are brothers and sisters inter se. Mat. Shatangri is widow, Mat. Shitabi (daughter), whereas defendant No.1/Dil More, defendant No.2/Arshad Ali are the sons of Mat. Shitabi. Disputed property was inherited by the parties from their father. It has been held in the case Ghulam Haider v. Mat. Sooban Bibi and others 1986 MLD 1952 that "it is for beneficiaries of such entries to prove that entries based on admission of a party were affirmatively against its maker both as regards identity of maker and contents of statement attributed to him." Similarly, it has been further held in case Hakim Khan v. Nazeer Ahmed Laughmani and 10 others 1992 SCMR 1832 that "mutation by itself does not create title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property." It has been further held in Muhammad v. Mst. Rehman through Mst. Sharifan Bibi 1998 SCMR 1354 that "it is well-settled that where any sale-deed is executed by an illiterate lady, it is for the purchaser to establish that she had executed it if her own free-will under independent device from her relations and fully knowing the nature of the transaction." Similarly, it has been held in case Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 that "delivery of possession depends on the intention of the donor and that intention is not sufficiently proved in a case where she is old, ailing, under apprehension of death and in the hands of the donee by a formal recital of delivery of possession in the gift deed." It was further held in Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932 that "Donor an illiterate woman is entitled to protection as Parda Nashin though not observing Parda in a position of exerting undue influence. Onus on donee to show that gift was made without exercising influence. Gift was set aside." These judgments clearly applicable to the facts of the case.
12. Perusal of the impugned judgments and decrees reveals that the conclusions arrived at by both the Courts below are elaborate and are based on cogent reasons. The learned counsel for the petitioners have pointed out no misreading or non-reading of evidence or any other legal infirmity with the judgments rendered by the Courts below warranting interference by this Court in revisional jurisdiction. As per the dictum of law laid down by honourable apex Court in cases of Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236, Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmed 2007 SCMR 926, concurrent findings of fact recorded by the Courts below are not open to exception unless it is established that the same suffered from any jurisdictional defect or were based on misreading or non-reading of evidence, which elements are conspicuously lacking in the present civil revision.
13. Resultantly, there being no merit in this revision petition, the same is hereby dismissed. No order as to costs.
M.U.Y./M-675/L Petition dismissed.
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