Imtiaz Ahmad etc Vs Abdul Hameed alias Majeed etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.158 of 2019

Imtiaz Ahmad & others Versus Abdul Hameed alias Majeed (deceased) through Legal Heirs & another

JUDGMENT

Date of hearing: 03.06.2026.

Petitioners by: M/s. Uzma Razzaq Khan and Ch.

Muhammad Ashraf Jalal, Advocates.

Respondents by: Mr. Dost Muhammad Kahoot, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- The petitioners have assailed the judgment and decree dated 11.12.2018 passed by the learned Additional District Judge, Shakargarh, whereby the appeal preferred by respondent No.1 was accepted, the judgment and decree dated 14.03.2017 passed by the learned Civil Judge, Shakargarh were set aside, and the suit instituted by the petitioners for declaration with consequential relief was dismissed.

2.Briefly stated, the petitioners instituted a suit for declaration and permanent injunction on the premise that one Muhammad Rafique son of Jaan Muhammad was owner of land measuring 18 Kanals and 10 Marlas. According to the petitioners, Muhammad Rafique was unmarried and issueless and, during his lifetime, out of love and affection, made an oral gift (Hiba) of the suit property in favour of the petitioners; the donor made an offer, the donees accepted the same and possession was delivered; Mutation No.218 dated 22.02.2012 was entered on the basis of the said gift and the donor also recorded his statement before the revenue authorities, however, before formal attestation of the mutation, the donor died on 02.04.2012, whereafter the respondents started disputing the petitioners’ rights, compelling them to institute the suit.

The suit was contested by respondent No.1, who categorically denied the alleged gift and asserted that no offer, acceptance or

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delivery of possession had ever taken place. Upon framing of issues and recording of evidence, the learned trial Court decreed the suit vide judgment and decree dated 14.03.2017. However, the learned first appellate Court, upon reappraisal of the entire evidence, accepted the appeal and dismissed the suit vide judgment and decree dated 11.12.2018. Hence, this revision petition.

3.Learned counsel for the petitioners contends that the learned appellate Court misread and failed to properly appreciate the oral as well as documentary evidence available on record. He argues that the donor had unequivocally expressed his intention to gift the property. He adds that the mutation proceedings and statements recorded before the revenue authorities sufficiently established the gift. He further submits that delivery of possession stood proved and that the learned trial Court had rightly decreed the suit. He further submits that mere non-attestation of mutation could not invalidate an otherwise valid gift. In support, he has relied upon Muhammad Yaseen v. Muhammad Aslam (2024 CLC 655), Abdul Sattar (Deceased) through L.Rs. v. Muhammad Yaseen (Deceased) through L.Rs. and 5 others (2024 CLC 1812) and Mst. Qamar Bibi through L.Rs. and others v. Shahab-ud-Din and others (2025 CLC 352).

4.Conversely, learned counsel for the respondents supports the impugned judgment and submits that the petitioners utterly failed to establish the essential ingredients of a valid Hiba.

5.I have heard the learned counsel for the parties and have perused the record with their able assistance.

6.The controversy in the present case revolves around the alleged oral gift (Hiba) said to have been made by Muhammad Rafique in favour of the petitioners. It is settled beyond cavil that under Muhammadan Law a gift is not established merely by asserting its existence. The person claiming title on the basis of Hiba must affirmatively prove the three indispensable ingredients thereof, namely: (i) a clear and unequivocal declaration or offer of gift by the donor; (ii) acceptance of the gift by or on behalf of the donee; and (iii) delivery of possession in pursuance thereof. Unless these essential

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requirements are satisfactorily established through reliable evidence, no title can pass to the alleged donee. The august Supreme Court reaffirmed the aforesaid principle in Hayat Muhammad through LRs. v. Muhammad Riaz (2023 SCMR 2012), observing as under:

“3. "Gift" is defined in section 138 of the Muhammadan Law as: "A hiba or gift is a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter." The prerequisites of a valid gift are:

(i)offer by the donor; (ii) its acceptance by the donee; and (iii) the delivery of possession. A valid gift comes into existence as soon as the three ingredients are completed. ...”

The burden to prove each of these ingredients squarely rests upon the party asserting the gift and never shifts merely because the opposite party disputes the transaction.

7.A careful examination of the plaint reveals that the petitioners failed to furnish even the basic particulars of the alleged oral gift. Neither the date, time nor place of the alleged transaction was disclosed. Equally absent are the particulars regarding the circumstances in which the donor allegedly made the declaration of gift, the manner in which it was accepted, and the identity of the persons who witnessed the original transaction. Reliance is placed upon the decision of the august Supreme Court in Abrar Hussain v. Mst. Bibi Shahida and others (PLD 2026 Supreme Court 42), wherein the aforesaid principle was reiterated in the following words:

“12. ...Even when a gift is pleaded, the donee bears a heavy onus to prove that the donor made a valid offer, that it was accepted, and that possession was delivered. The donor must also establish the date, time and place of the offer and acceptance. Failure to do so, renders such a plea untenable.”

Significantly, the petitioners structured their case primarily around Mutation No.218 rather than around the alleged oral gift itself. Since the very foundation of the claim was the existence of a valid Hiba, the absence of these material particulars materially weakened the petitioners’ case and rendered their subsequent oral assertions susceptible to strict scrutiny.

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8.The learned appellate Court rightly observed that evidence must remain within the confines of pleadings. The particulars subsequently introduced through oral testimony regarding the alleged gift transaction were never pleaded in the plaint. While evidence may explain a pleaded case, it cannot be permitted to create an altogether new factual foundation. In matters involving transfer of immovable property on the basis of an oral gift, the Court is required to exercise greater caution, and title cannot be founded upon facts which were never properly pleaded at the outset. Guidance may also be sought from the judgment of the august Supreme Court in Muhammad Arif Tarar and another v. Matloob Ahmad Warraich and others (PLD 2025 Supreme Court 691), wherein the Court observed as under:

“5. Additionally, as held in Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698), pleadings frame the boundaries of a party's case and the parties are bound to lead evidence in line with them. A party is not permitted to go beyond its pleadings and cannot lead or rely upon evidence that is inconsistent with what has been pleaded; even if such evidence is brought on record, it must be ignored. In this context, any belated amendment that introduces a new factual assertion must be examined with heightened scrutiny.”

9.More importantly, even if the evidence led by the petitioners is examined independently, it falls short of establishing the original transaction of gift with the degree of certainty required by law. Much of the oral evidence is directed towards the mutation proceedings and statements allegedly recorded before the revenue authorities rather than towards proving the actual declaration, acceptance and delivery of possession constituting the Hiba itself. The learned appellate Court, therefore, correctly focused on the foundational transaction instead of treating the mutation proceedings as conclusive proof of title.

10.It is true that mutation neither creates nor extinguishes title and that a valid gift under Muhammadan Law does not depend upon its attestation. However, the converse is equally true. Where the very factum of gift is disputed, a mutation entry, whether attested or otherwise, cannot by itself establish ownership. Mutation proceedings are merely evidentiary in nature and may, at best, furnish corroboration of an otherwise proved transaction. In the present case, the petitioners

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were required to independently establish the alleged Hiba by proving its essential ingredients, namely declaration, acceptance and delivery of possession. As already discussed, the petitioners failed to disclose or satisfactorily prove the material particulars of the alleged gift transaction, including the circumstances in which it was allegedly made and acted upon. Once the foundational transaction itself remained unproved, Mutation No.218 lost even the limited evidentiary value ordinarily attached to such revenue entries. The august Supreme Court in Ghulam Farid and another v. Sher Rehman through LRs. (2016 SCMR 862) held that where the basic transaction forming the basis of a mutation is not established, the mutation loses even the little worth attached to it and cannot be treated as a validly executed document. Mere incorporation of such an entry in the revenue record and its subsequent repetition in periodical records confers no legal benefit upon the party relying thereon. Consequently, having failed to satisfactorily prove the underlying transaction of gift, the petitioners could not derive title merely from Mutation No.218 or the proceedings allegedly conducted pursuant thereto.

11.The learned Appellate Court, after appraisal of record, noted several circumstances which legitimately cast serious doubt upon the genuineness of the petitioners’ version. It was observed that Muhammad Rafique died on 02.04.2012, whereas the mutation fee and allied dues were deposited on 09.04.2012, i.e., after his death. Although this circumstance may not by itself be conclusive, it certainly raises a legitimate question regarding the actual status and progress of the mutation proceedings during the donor’s lifetime. It was also observed that the mutation purportedly emanated from Rapt Roznamcha Waqiati No.213 dated 22.02.2012, yet the said Roznamcha entry was never produced before the Court. The withholding of such a material document, which constituted the very genesis of the mutation proceedings, justified the drawing of an adverse inference against the petitioners.

12.The learned appellate Court has further highlighted irregularities in the sequence of revenue proceedings. The record suggests that the

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alleged statements and subsequent mutation process did not follow the ordinary course generally adopted in revenue matters. These irregularities, when viewed cumulatively with the non-production of the Roznamcha entry and the deposit of mutation fee after the donor’s death, furnished valid and substantial reasons for doubting the authenticity and reliability of Mutation No.218. The appellate Court was, therefore, fully justified in treating the mutation proceedings with caution rather than accepting them at face value.

13.The learned trial Court appears to have attached undue weight to the circumstance that certain portions of the petitioners’ evidence were not effectively challenged during cross-examination. Such an approach overlooks the settled principle that weakness in the defence cannot relieve a plaintiff of the obligation to prove his own case. Even where certain statements remain unchallenged, the Court must still determine whether the evidence, read as a whole, is legally sufficient to discharge the burden of proof. A decree for declaration of title cannot rest merely upon the absence of extensive cross-examination when the essential ingredients of the alleged transaction remain inadequately established.

14.For the foregoing reasons, I am persuaded to hold that the learned appellate Court rightly concluded that the petitioners had failed to discharge the burden of proving a valid oral gift in their favour. The findings recorded by the learned trial Court were primarily founded upon mutation proceedings and ancillary circumstances, whereas the essential ingredients constituting the alleged Hiba remained insufficiently established. The learned appellate Court corrected these deficiencies through a lawful and comprehensive reappraisal of the evidence. Its conclusions are fully supported by the record and are in consonance with the settled principles governing proof of gifts under Muhammadan Law.

The precedents cited by the learned counsel for the petitioners are clearly distinguishable on facts and are, therefore, inapplicable to the controversy in hand.

15.Consequently, the impugned judgment and decree dated 11.12.2018 passed by the learned Additional District Judge,

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Shakargarh do not suffer from any illegality, material irregularity, misreading or non-reading of evidence warranting interference in revisional jurisdiction. This civil revision petition, being devoid of merit, is accordingly dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*