Mst. Ghulam Fatima vs Muhammad Khan etc.

C.R.No.466 of 2012

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

C.R.No.466-D of 2012 Mst.Ghulam Fatima (deceased) through L.Rs.

V.

Muhammad Khan etc.

JUDGMENT

Date of hearing: 08.02.2022 Petitioners by: Sh.Zamir Hussain, Advocate. Respondents by: Muhammad Khan, one of the respondents present with written arguments. On the last date of hearing (07.02.2022), arguments advanced by the learned counsel for the respondents (Malik Amjad Ali Advocate) had been heard at full length in absence of learned counsel for the petitioners.

Sadaqat Ali Khan, J. The only controversy between the parties is as to whether Ghulam Fatima/plaintiff (Donor), predecessor in interest of the petitioners had gifted her property measuring 46-Kanals 7-Marlas to her paternal uncles, Muhammad Khan, Gulab Khan and Ahmed Khan/respondents No.1 to 3/defendants (Donees) "respondents".

2.Heard. Record perused.

3.Learned counsel for the petitioners does not challenge inheritance mutation No.2043 dated

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29.06.1989 (Exh.P2) pertaining to Karam Khan predecessor in interest of the parties.

4.Unnecessary facts apart, Ghulam Fatima, being plaintiff (predecessor in interest of the petitioners) on 02.10.2007 filed suit for declaration with the assertations that she is owner in possession of suit land i.e. 46-Kanals 7-Marlas, detail of which is mentioned in the headnote as well as body of the plaint which she inherited (inheritance mutation No.2043 dated 29.06.1989 Exh.P2 pertaining to Karam Khan) from her paternal grandfather Karam Khan being daughter of his pre-deceased son Muhammad Ali; that she had not gifted suit property to any one; that gift mutation No.2067 dated 31.07.1989 Exh.P3 (just one month after the said inheritance mutation) allegedly got sanctioned on her behalf in favour of her paternal uncles (Muhammad Khan, Gulab Khan and Ahmed Khan respondents) is result of fraud, ineffective upon her rights and liable to be cancelled.

5.The suit was contested by the respondents through their written statement controverting the assertions made in the plaint.

6.Learned trial Court out of the divergent pleadings of the parties framed issues. Both the parties adduced their respective evidence i.e. oral as well as documentary. At the end learned trial Court after hearing the learned counsel for the parties dismissed the suit of the petitioners vide judgment and decree dated 10.02.2010. Appeal filed by the petitioners met the same fate vide judgment and

C.R.No.466 of 2012

decree dated 03.03.2012, hence instant civil revision by the petitioners.

7.There is no cavil with this settled legal proposition that mutation is not the document of title rather the beneficiary is to prove the transaction as mentioned in the mutation when challenged through independent evidence. However, each case is to be decided on its own merits. Likewise, it is the duty of the beneficiary to prove the factum of disputed gift. The essential ingredients of gift are offer, acceptance and delivery of possession.

8.In the present case, gift mutation (Exh.P3) was challenged by donor (Ghulam Fatima/plaintiff) herself and it was the duty of the donees (Muhammad Khan, Gulab Khan and Ahmed Khan/respondents) to prove it.

9.In order to prove the factum of gift, the respondents stated in Para-4 of their written statement that Ghulam Fatima (plaintiff) got inherited suit land from her father Muhammad Ali s/o Karam Khan, whereafter in presence of Muhammad Khan s/o Namdar DW2 and Muhammad Khan s/o Zabra Khan DW3 made offer qua gifting the suit property to them which was accepted but to prove third ingredient of gift did not state that possession was also delivered to them. Relevant portion of Para-4 of the written statement is hereby reproduced:-

"وجاجدیئاددمہیع وک اُےکس وادلےک ہصحںیم ےس یلم یھت۔ وہ اجدیئاددمہیع 3ات1ےنروربودمحماخنودلزربا۔دمحماخنودلاندمارانکسےئرگنلدماعمہیلع وک ہبہ دےنی یک شکشیپ یک وج دماع مہیلع ےن وبقل یک۔ اُےکس دعب دمہیع ےن

C.R.No.466 of 2012

ازوخد ااقتنل درج رکاای۔ روربو رویوین آرسیف شیپ آ رک ااقتنل قحب دماع مہیلع دصتقی و وظنمر رکےن یک تبسن ایبن دای۔ وبتق دصتقی ااقتنل3 ات1 ربمن کلم کلف ریش ربمندار۔ دمحم اابقل ربمندارانکسےئ رگنل یھب وموجد ےھت۔ دمہیع ےن اینپ وخیش و راض دنمی ےس ااقتنل دصتقی رکاای اور ااقتنل رپ اانپ اوگناھٹ یھب تبث ایک اھت۔ دمہیع اخودن ےک اےھچ ولسک ہن وہےن یک وہج ےس کت اُےکن اپس2006 ےک اپس یلچ یئگ یھت اور اسل3 ات1دماع مہیلع ربمن ریہ۔ اس دوران دماعمہیلع ےن دمہیع اک تہب ایھچ رطح ایخل راھک اور رہ رضورتوکوپراایک۔اہتبلاخودنیکوافتےکدعبدمہیعوکاےنپےلےئگ"۔ Respondents being beneficiary neither mentioned the date, time and place of making of gift in the written statement nor in the evidence produced by them before the learned trial court. Respondents have also not stated in their written statement that after offer and acceptance qua the gift, possession of suit property was also handed over to them. In this way, non-fulfilment of third ingredient of gift i.e. delivery of possession is fatal to the case of donees. It is also well settled by the superior courts that no party is allowed to lead evidence beyond its pleadings, if produced, cannot be considered. Ambiguous plea mentioned in the written statement by the respondents showing joint offer by their paternal niece Ghulam Fatima plaintiff (donor) and joint acceptance from their side is sufficient to falsify their version. It is also mentioned in above reproduced Para of the written statement that after making of oral gift, Ghulam Fatima (plaintiff) went to revenue office and got sanctioned the disputed gift mutation Exh.P3, perusal of which shows that only

C.R.No.466 of 2012

Muhammad Khan (respondents No.1) one of the respondents was present there, other donees (respondents No.2 & 3) were not there and also not appeared before the learned trial court in support of gift. Ghulam Fatima plaintiff (predecessor in interest of the petitioners) had three sons (present petitioners), there was no reason to deprive them by the mother (Ghulam Fatima plaintiff) by giving suit property to their paternal uncles (respondents) through gift mutation Exh.P3 (mutation No.2067 dated 31.07.1989) just after one month of acquiring the suit land measuring 46-Kanals 7- Marals vide inheritance mutation No.2043 dated 29.06.1989 (Exh.P2). Respondents in above Para of the written statement specifically stated that gift was made before Muhammad Khan s/o Namdar and Muhammad Khan s/o Zabra Khan (DW2 & DW3

respectively) but they while appearing before the learned trial court did not disclose the factum of gift, offer, acceptance and delivery of possession with exact date, time and place as revealed from their statements which are reproduced below in the fitness of things:-

DW-2

امہلبقریمےاسےنمدمہیع2 1⁄2اسل20"ایبنایکہکرفنیقیوکاجاتنوہں۔رقتًابی وکاہکہکآپےنریمیڑبیدختمیکےہاورںیماےنپ3 ات1ےناہکہکدماعمہیلع ےن وبقل3 ات1 دادا ےسےنلم واال رہبقآپ وک ششخبرکان اچیتہ وہں وکسج دماعمہیلع "۔ںیماوردمحماخنودلزرباوموجدےھت۔3 ات1ایک۔اسوتقدمہیع۔دماعمہیلع

DW-3

1 امہلبقریمےروربو دمہیعےندماعمہیلع3،2 1⁄2اسل20"ایبنایکےہہکرقتًابی وکاہکہکںیمیفلیبساہللرہبقوجہکےھجمدادایکوراتثےسالمےہ۔اسرپہبہرک3ات دانی اچیتہ وہں ویکہکن آپ ولوگں ےن ریمی ڑبی دختم یک ےہ اس وتق دمہیع

C.R.No.466 of 2012

وموجدےھتدمحماخنودلاندماریھبوموجداھت۔ںیم3ات1ےکونیتںاچچاگن دماعمہیلع ےن3 ات1 افہمط اور دماعمہیلع وک ذایت وطر رپ اجاتن وہں دمہیع یک شیپ شک دماع مہیلع "وبقلیک۔ Both the above witnesses of gift had not stated about the fulfillment of third ingredient of gift i.e. delivery of possession of suit property by the donor to the donees. The above discussed facts suggest that respondents (donees) being beneficiaries have failed to prove the factum of disputed gift and gift mutation (Exh.P3) which is not sustainable under the law being result of fraud and misrepresentation and is cancelled. Reliance in this context is placed on the cases reported as (PLD 1990 SC 1 “GHULAM ALI and 2 OTHERS V. Mst.GHULAM SARWAR NAQVI”), (2010 SCMR 342 “MUHAMMAD EJAZ and 2 others V. Mst.KHALIDA AWAN and another”), (2020 SCMR 1021 “MUHAMMAD NAWAZ and others V. SAKINA BIBI and others”), (2020 SCMR 276 “MUHAMMAD SARWAR V. MUMTAZ BIBI and others”), (2021 SCMR 73 “ATTA MUHAMMAD and others V.

Mst.MUNIR SULTAN (DECEASED) through her LRs and others) and (2021 SCMR 179 “FARHAN ASLAM and others V. Mst.NUZBA SHAHEEN and another).

10.As far as the question of limitation is concerned, it has been argued that limitation for filing of a suit for declaration is six years under Article 120 of the Limitation Act. Ghulam Fatima plaintiff (predecessor in interest of the petitioners) alleged donor, by filing suit sought declaration that gift mutation in question was illegal and had

C.R.No.466 of 2012

fraudulently been entered in the revenue record. Each entry in the revenue record gives fresh cause of action to an aggrieved person and adverse entries in the revenue record, even if allowed, but remained unchallenged, do not have the effect of extinguishing the rights of a party against whom such entries had been made. Even otherwise, any transaction of the document which is the result of fraud or misrepresentation can neither be perpetuated nor can it be protected on the ground of expiry of the period of limitation, whenever such transaction is assailed in a Court of law as is held by the Apex Court in the cases reported as (2016 SCMR 862 “GHULAM FARID and another V. SHER REHMAN through LRs.) & (PLD 2020 S.C 338 “MUHAMMAD YAQOOB V. Mst.SARDARAN BIBI and others”).

11.For the foregoing reasons, this civil revision is allowed. Impugned judgments and decrees of the learned Courts below are hereby set- aside, being suffered from mis-reading and non- reading of evidence and consequently the suit of the petitioners is hereby decreed as prayed for to the extent of gift mutation Exh.P3.

(Sadaqat Ali Khan) Judge

Approved for Reporting

Judge Sabir