Muhammad Aslam Khan etc. vs Nazeeran Bibi etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN.

JUDICIAL DEPARTMENT

C.R. No.560-D of 2024

Muhammad Aslam Khan, etc.

Versus

Nazeeran Bibi (deceased) through LRs and others

JUDGMENT

Date of hearing: 30.09.2026.

Petitioners by: Mr. Khawar Siddique Sahi, Advocate. Respondents by: Mr. Muhammad Masood Bilal, Advocate.

Mr. Awais Ahmad Qazi, Additional Advocate General.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant revision petition, petitioners have assailed the judgment and decree dated 15.05.2024 passed by Addl. District Judge, Layyah, whereby appeal filed by respondent against judgment and decree dated 15.02.2022 passed by learned Civil Judge, Layyah, was accepted and as a result whereof suit for declaration and cancellation of oral gift mutation No.1628 filed by respondents was decreed.

2.Briefly stated, the respondents/plaintiffs instituted a suit for declaration and cancellation of Mutation No.1628, by which an oral gift (hiba) allegedly made by Fazal Muhammad, predecessor-in- interest of the respondents, in favour of the petitioners was incorporated in the revenue record. The respondents questioned the validity of the gift and alleged that the transaction was not validly made and that the mutation was liable to be set aside. The petitioners

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contested the suit by filing written statement. The learned trial Court, after recording the evidence of the parties and considering the material available on record, dismissed the suit through judgment and decree dated 15.02.2022. Aggrieved by the judgment and decree of the learned trial Court, the respondents preferred an appeal before the learned Additional District Judge, Layyah. The learned appellate Court, vide impugned judgment and decree dated 15.05.2024, accepted the appeal, reversed the judgment and decree of the learned trial Court and decreed the suit in favour of the respondents. Hence, the present petition.

3.Learned counsel for the petitioners submits that the impugned judgment and decree dated 15.05.2024 is the result of misreading and non-reading of material evidence. He further submits although the first appellate Court is ordinarily the final Court of fact, its findings are open to interference where they are based on misreading or non- reading of material evidence or disregard of settled legal principles. He argues that the learned trial Court had properly appreciated the evidence and rightly dismissed the suit, whereas the learned appellate Court reversed the findings without assigning cogent reasons particular reliance was placed upon Ex-D9 and Ex-D10, especially the statement of Fazal Muhammad, the donor, recorded on 25.07.2012, whereby he acknowledged Mutation No.1628, admitted delivery of possession to the donees and withdrew his challenge to the mutation. He contends that this constituted a material admission which, read with the mutation proceedings and subsequent possession of the donees, substantially corroborated the alleged oral hiba. He further submits that the attested mutation, identification of the attesting witnesses, revenue record and continuous possession of the donees, when considered cumulatively, supported the petitioners’ case as admission of PW-2 that he had been tutored by PW-1, materially affected the credibility of the respondents’ evidence. He further argues that the respondents’ allegations of fraud, forgery and impersonation were vague and lacked the particulars required under Order VI Rule 4, C.P.C. He maintains that the learned

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appellate Court correctly observed that mutation by itself does not confer title, but misapplied that principle because the petitioners relied not upon the mutation alone but upon the donor’s admission, delivery of possession and surrounding circumstances. He adds that the learned appellate Court failed to properly address the trial Court’s findings and material evidence, thereby violating the requirements of Order XLI Rule 31, C.P.C.

4.Conversely, learned counsel for the respondents supports the impugned judgment of learned Appellate Court and contends that the revision petition was merely an attempt to secure reappraisal of factual findings in revisional jurisdiction. He submits that jurisdiction under Section 115, C.P.C. is limited and cannot be converted into a third appeal unless perversity, misreading or non-reading of material evidence, illegality or material irregularity is established. He argues that Mutation No.1628 did not, by itself, confer title and that the burden remained upon the petitioners/donees to establish the alleged oral hiba and its essential ingredients, namely declaration, acceptance and delivery of possession. He contends that petitioners had failed to provide satisfactory particulars regarding the date, time, place and witnesses of the alleged gift; the donor’s statement acknowledging the mutation, it was argued, could not by itself prove the underlying transaction or dispense with the requirement of proving the gift. He further submits that mere assertion of possession was insufficient to establish delivery of possession, particularly where the parties were co- sharers or the property was jointly held; and the attestation of the mutation by revenue authorities likewise did not create title in favour of the donees. He adds that the alleged deficiencies in the respondents’ pleadings regarding fraud did not relieve the petitioners of their independent burden to prove the gift.

5.Arguments heard. Record perused.

6.The controversy essentially revolves around the validity of Mutation No.1628 dated 17.02.2012, allegedly incorporating an oral gift made by Fazal Muhammad in favour of the petitioners. The

C.R. No.560-D of 2024

respondents, being his legal heirs, challenged the transaction and sought declaration and cancellation of the said mutation. The learned trial Court, after recording evidence, dismissed the suit, whereas the learned first appellate Court reversed the said judgment and decreed the suit. The question is whether the learned Appellate Court, in doing so, properly considered the material evidence and recorded legally sustainable reasons for its decision. Provisional jurisdiction under section 115 CPC is supervisory and limited. Ordinarily, this Court does not substitute its own appreciation of evidence for that of the Courts below merely because another view is possible. However, where a finding is the result of misreading or non-reading of material evidence, is perverse, or is attended by illegality or material irregularity having a bearing upon the ultimate decision, revisional jurisdiction can legitimately be exercised. The Supreme Court has reiterated that findings affected by misreading or non-reading of evidence, jurisdictional error or material illegality are not immune from correction under Section 115, C.P.C. The question, therefore, is not whether this Court would have independently appreciated the evidence differently, but whether the learned appellate Court, while reversing the judgment of the learned trial Court, properly considered the material evidence and recorded legally sustainable reasons for its conclusion. In my considered view, the answer is in the negative. Proof of oral gift

7.There can be no dispute with the general proposition that a mutation entry, by itself, does not constitute a document of title. Similarly, where an oral gift is specifically challenged, the beneficiary cannot rely upon the mutation alone and must establish the underlying transaction in accordance with law. An oral hiba ordinarily requires proof of declaration by the donor, acceptance by the donee and delivery of possession. The petitioners, however, do not rely upon Mutation No.1628 in isolation. Their case is supported, according to the evidence referred to before this Court, by the donor's own statement acknowledging the transaction and delivery of possession,

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the revenue proceedings, attestation of the mutation and the subsequent possession of the donees. The learned appellate Court was, therefore, required to examine the evidence cumulatively. The existence of a defect or omission in one part of the petitioners' case could not justify complete exclusion of other material evidence without examining its effect. The donor's statement regarding delivery of possession is particularly material. Delivery of possession is not an irrelevant circumstance in determining whether an oral gift was completed. Where the donor himself is shown to have acknowledged such delivery, that circumstance necessarily required careful consideration alongside the remaining evidence. The learned appellate Court instead appears to have proceeded substantially upon the proposition that the petitioners had not furnished sufficient particulars concerning the date, place, time and witnesses of the alleged gift. Such consideration was relevant, but it could not substitute for an examination of the donor's own subsequent conduct and statement. The question was whether, notwithstanding any deficiency in the pleadings, the evidence as a whole established the transaction or at least provided substantial corroboration thereof. The principles governing proof of an oral gift, particularly the relevance of the donor's acknowledgment of the gift and the circumstances showing completion of the transaction, have been considered by the august Supreme Court in Ahmed Sher and others v. Sikandar Hayat and others (2004 SCMR 1624), Abrar Ahmed and another v. Irshad Ahmed (PLD 2014 Supreme Court 331) and Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another (2000 SCMR 1021). In Ahmed Sher, the donor had admitted during his lifetime the gift in favour of the donees and had done all that was necessary to perfect the gift by placing the donees in a position to take possession, whereupon the gift was held proved. Likewise, in Abrar Ahmed, the Supreme Court attached considerable significance to the donor's unequivocal acknowledgment of the gift and the circumstances constituting constructive delivery of possession. In Mst. Hajran Bibi, the Supreme Court recognized that where the mutation proceedings

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contained the donor's admission of delivery of possession and the surrounding circumstances established announcement, acceptance and delivery of possession, the oral gift could validly be sustained. The donor’s statement (Ex-D9 and Ex-D10)

8.The most significant circumstance which has escaped proper consideration by the learned appellate Court is the statement of Fazal Muhammad, the alleged donor, recorded on 25.07.2012 in the proceedings instituted by him concerning the very mutation which is the subject matter of the present litigation. According to the record placed before this Court, Fazal Muhammad, during his lifetime, had himself questioned Mutation No.1628. However, on 25.07.2012, he appeared before the Court and made a statement on oath whereby he acknowledged the correctness of the mutation, stated that possession had been delivered to the donees and expressed his unwillingness to pursue the litigation. His suit was consequently dismissed as withdrawn on the same day. The statement/proceedings have been produced as Ex-D9 and Ex-D10. This evidence could not be treated as an ordinary or peripheral circumstance. Fazal Muhammad was admittedly the person from whom the alleged gift originated. His own conduct, therefore, was directly relevant to the question whether the mutation represented a genuine transaction or was the product of fraud, impersonation or manipulation. This aspect finds direct support from Ahmed Sher and others v. Sikandar Hayat and others (2004 SCMR 1624), wherein the Hon’ble Supreme Court held that the donor's admission during his lifetime regarding the gift, coupled with his conduct showing that he had done all that he could to perfect the gift by placing the donees in a position to take possession, constituted sufficient proof of the gift. Similarly, in Abrar Ahmed and another v. Irshad Ahmed (PLD 2014 Supreme Court 331), the Hon’ble Supreme Court accorded substantial evidentiary significance to the donor's unequivocal acknowledgment of the gift and his subsequent conduct, including circumstances from which constructive delivery of possession could be inferred. These authorities demonstrate that the

C.R. No.560-D of 2024

donor's own acknowledgment and subsequent conduct cannot be treated as inconsequential circumstances when the validity of an oral gift is under examination. An admission made by a party is not, in every case, conclusive proof of the entire controversy; nevertheless, it is substantive evidence and its evidentiary value has to be assessed in conjunction with the other evidence on record. Here, the statement assumes still greater significance because it was made by the alleged donor himself, during his lifetime, in proceedings concerning the very mutation subsequently challenged by his heirs. The learned appellate Court, while reversing the trial Court, was therefore required to consider Ex-D9 and Ex-D10 and to determine their legal and evidentiary effect. If the learned appellate Court intended to discard or dilute the effect of these documents, it was incumbent upon it to assign reasons for doing so. A material piece of evidence which goes to the root of the controversy cannot simply disappear from the reasoning process. The impugned judgment, however, does not demonstrate any meaningful consideration of the donor's aforesaid statement. This omission is not merely a matter of style or brevity. The evidence was directly relevant to the genuineness of the transaction, the alleged delivery of possession and the subsequent conduct of the donor. Its non-consideration, therefore, amounts to non-reading of material evidence and has materially affected the conclusion reached by the learned appellate Court.

Effect of the revenue proceedings and possession

9.It is true that an attested mutation does not itself create title. Nevertheless, the fact that the mutation was processed and attested before the revenue authorities is not wholly irrelevant. Its evidentiary value has to be considered along with the evidence regarding the donor's participation, the attesting witnesses, possession and the subsequent conduct of the parties. In Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another (2000 SCMR 1021), the Hon’ble Supreme Court considered mutation proceedings in which the oral gift, acceptance and delivery of possession had been recorded and observed

C.R. No.560-D of 2024

that the donor's admission of delivery of possession, coupled with the revenue proceedings and surrounding circumstances, supported the validity of the gift. The said authority is particularly relevant to the present controversy because it demonstrates that, although a mutation by itself is not a document of title, the mutation proceedings and the circumstances attending their sanction may constitute material corroborative evidence of an oral hiba. The petitioners' assertion that the mutation was attested before the competent revenue officer and that the signatures and identification particulars of the witnesses were not effectively denied was also a matter requiring consideration. Likewise, the alleged continuous possession of the petitioners could not be discarded merely by observing that possession of a co-sharer is not determinative. In an inheritance dispute, possession of one co-sharer may indeed have limited significance; however, in a case founded upon an alleged completed gift, possession assumes a different evidentiary relevance because delivery of possession is one of the circumstances bearing directly upon completion of the transaction. Thus, the learned appellate Court was required to examine whether the evidence relating to possession, when read with the donor's own statement, supported the petitioners' case. A generalized observation concerning co-sharer's possession did not adequately answer that question.

Allegations of fraud and impersonation

10.The respondents challenged the transaction and, as stated before this Court, raised allegations of fraud/impersonation. Such allegations are serious in nature and, under Order VI Rule 4, C.P.C., are required to be pleaded with necessary particulars. The importance of this aspect becomes greater in the present case because the donor himself subsequently appeared before the Court and acknowledged the mutation and delivery of possession. If the respondents alleged that the mutation had been procured through impersonation or fraud, the learned appellate Court was required to examine precisely what fraud was pleaded, what particulars were furnished, what evidence

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established such fraud, and how the donor's subsequent sworn statement was to be reconciled with that allegation. The impugned judgment does not satisfactorily undertake that exercise. This Court is not holding that absence of particulars of fraud, by itself, conclusively establishes the gift. Rather, the point is that the respondents' allegations and the donor's subsequent conduct had to be evaluated together. The burden resting upon the petitioners to establish the hiba could not be considered in isolation from the specific case set up by the plaintiffs in challenge to the transaction.

Evidence of PW-2

11.Learned counsel for the petitioners also referred to the statement of PW-2 and his alleged admission that he had been tutored by PW-1. If such admission is indeed borne out from the record, it was another circumstance affecting the weight to be attached to the plaintiffs' evidence. Again, this Court does not consider that the alleged tutoring, standing alone, determines the case. However, where the first appellate Court is reversing a decree based upon appreciation of oral evidence, it is required to examine the material admissions emerging in cross- examination and explain why such evidence does or does not affect the credibility of the witnesses concerned. The impugned judgment does not demonstrate a sufficiently comprehensive assessment of these aspects.

Duty of the learned Appellate Court under Order XLI Rule 31

CPC

12.A first appeal is a continuation of the trial, and the first appellate court is ordinarily the last court of fact. That court undoubtedly had jurisdiction to reappraise the evidence and reach a different conclusion. But power of that width carries a corresponding duty to give reasons, because a reasoned decision is the means by which a litigant can know why he has lost and a higher court can see that the law has been applied. Order XLI Rule 31 CPC accordingly requires an appellate judgment to state the points for determination, the decision on them, the reasons for the decision and, where the decree is reversed or varied,

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the relief to which the appellant is entitled. Substantial compliance suffices, but the judgment must still show a proper appraisal and balancing of the evidence and the law, so that the basis of reversal can be seen. Reversal of the Trial Court’s decree required more than a general observation that the Trial Court had committed misreading and non-reading of evidence. The difficulty here is not that the impugned judgment fails to reproduce every item of evidence. It is that evidence going to the heart of the dispute, particularly Ex-D9 and Ex-D10, is not addressed at all. The Appellate Court had to explain why the donor’s sworn acknowledgment of the mutation and of delivery of possession did not support the petitioners’ case, how that acknowledgment was to be reconciled with the allegation of fraud or impersonation, and why the evidence of possession and the revenue proceedings was insufficient when considered cumulatively. Without that analysis, its conclusion that the Trial Court misread and failed to read the evidence is merely conclusory. The approach adopted by the learned appellate Court is also inconsistent with the principle recognized in Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), wherein the Supreme Court observed that, although the first appellate Court is ordinarily the final Court of fact, interference in revisional jurisdiction is justified where the finding has been recorded without considering material parts of the evidence on the record and the relevant law. Likewise, Ahmed Sher and others v. Sikandar Hayat and others (2004 SCMR 1624) recognizes the revisional Court's duty to examine whether the impugned conclusion is the result of misreading or non- reading of material available on the record.

Withdrawal of the donor's earlier suit

13.The petitioners have also raised the question of the legal effect of withdrawal of the suit instituted by Fazal Muhammad. The record before this Court, as presently discussed, indicates that his suit was withdrawn on 25.07.2012 after his statement on oath. However, this Court would not rest the decision of the present revision upon an absolute bar under Order XXIII Rule 1, C.P.C. without examining the

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precise order of withdrawal, the terms thereof and the nature of the cause of action asserted by the subsequent plaintiffs. The respondents, being heirs, may assert their own legal rights, and the question whether they are independently bound by the donor's withdrawal requires examination in the context of the pleadings and the nature of their claim. Nevertheless, the donor's conduct remains highly relevant as evidence. His statement cannot be ignored merely because the respondents have subsequently brought the suit in their capacity as heirs.

Conclusion

14.For the reasons discussed above, I am of the considered view that the learned appellate Court, while correctly observing that a mutation does not by itself constitute title and that the alleged oral gift had to be proved, failed to properly apply those principles to the evidence available on the record. The learned appellate Court did not adequately consider the donor's own statement contained in Ex-D9 and Ex-D10, his acknowledgment regarding the mutation and delivery of possession, the subsequent conduct of the parties, and the other corroborative circumstances relied upon by the petitioners. These omissions assume material significance because the donor was the very person who allegedly made the gift and his statement was recorded during his lifetime in proceedings concerning the same mutation. The reversal of the well-reasoned judgment of the learned trial Court, without adequately dealing with such material evidence and without sufficiently explaining why the donor's statement was incapable of supporting the petitioners' case, amounts to non-reading of material evidence and material irregularity in the exercise of appellate jurisdiction. Consequently, the impugned judgment and decree dated 15.05.2024 passed by the learned Additional District Judge, Layyah, cannot be sustained. The approach adopted by the learned appellate Court is difficult to reconcile with the principles laid down by the august Supreme Court in Ahmed Sher and others v. Sikandar Hayat and others (2004 SCMR 1624), Abrar Ahmed and another v. Irshad

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Ahmed (PLD 2014 Supreme Court 331) and Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another (2000 SCMR 1021), wherein the donor's own acknowledgment, the circumstances attending the mutation proceedings and the evidence relating to delivery of possession were treated as material considerations in determining the validity of an oral gift. The learned appellate Court's failure to undertake such cumulative assessment assumes particular significance in the present case.

15.For what has been discussed above, the instant civil revision petition is allowed. The judgment and decree dated 15.05.2024 passed by the learned Additional District Judge, Layyah, are hereby set aside. The judgment and decree dated 15.02.2022 passed by the learned Civil Judge, Layyah, whereby the suit of the respondents/plaintiffs was dismissed, are restored. There shall be no order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge *Waseem.*