2022 Y L R 418

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J
DIL NAWAZ KHAN and 3 others---Petitioners
Versus
Mst. NEK BIBI and 3 others---Respondents
Civil Revision No. 98-B of 2021, decided on 22nd April, 2021.
(a) Transfer of Property Act (IV of 1882)---
----Ss. 5, 7, 122 & 123---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for
declaration, cancellation of gift-mutation and permanent injunction---Gift---
Ingredients--- Correctness and genuineness of gift-mutation---Scope---Plaintiff/wife
filed suit for cancellation of gift-mutation incorporated in favour of
defendants/respondents (her husband and her/husband's brothers)---Held, that plaintiff
had challenged the authenticity of mutation-in-question by filing suit within a year of
its incorporation---Plaintiff and defendant though were wife and husband but their
relations were strained, and plaintiff had not shown/ written herself to be wife of the
defendant and subsequently their marriage was dissolved---When they were not
friendly with each other the transfer of property and that too through gift was a
question mark---Defendant was bound to prove the factum of gift i.e. offer,
acceptance and delivery of possession under the gift without which no sanctity was
attached to the gift---No illegality or infirmity was found in the impugned judgments
and decrees passed in favour of plaintiff by the Courts below---Revision petition was
dismissed, in circumstances.
Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2019 SCMR 179
ref.
(b) Transfer of Property Act (IV of 1882)---
----Ss. 5, 7, 122 & 123---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for
declaration, cancellation of gift-mutation and permanent injunction---Gift---
Ingredients ---Correctness and genuineness of gift-mutation---Scope---Plaintiff/wife
filed suit for cancellation of gift-mutation incorporated in favour of
defendants/respondents (her husband and her/husband's brothers)---Petitioners
contended that they had proved the correctness and genuineness of gift mutation by
producing relevant Revenue Officers and the marginal witness---Held, that Revenue
Officer produced by the petitioners deposed that he himself did not know the donor
(plaintiff) and that she (donor) was parda nasheen lady---Witnesses who identified the
donor (plaintiff) were not her relatives---Patwari Halqa produced by the petitioners
deposed that he had been transferred to concerned Patwar circle after the relevant time
and neither he had entered the mutation-in-question nor in his presence said mutation
was attested ---Another witness produced by the petitioners deposed that Revenue
Officer checked the Computerized National Identity Card (CNIC) of the donor
(plaintiff) whereas concerned/retired Tehsildar as a witness deposed that neither the
donor had CNIC nor he entered it on the mutation-in-question, thus the authenticity
and correctness of gift-mutation was shrouded in mystery, besides the petitioners had
not proved the declaration of the alleged gift---Petitioners had not been able to prove
the authenticity and correctness of the alleged gift as their case was deficient of
required evidence, rather the alleged gift itself was suffering from suspicion and
doubts to sustain---Concurrent findings of fact of the Courts below could not be set
aside in revisional jurisdiction under S.115 of C.P.C. by the High Court unless such
findings suffered from jurisdictional defects, illegality or material irregularity ---No
illegality or infirmity was found in the impugned decrees and judgments passed in
favour of plaintiff by the Courts below---Revision petition was dismissed, in
circumstances.
Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR
2080; Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095; Sikandar
Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214; Umar Dad Khan
and another v. Tila Muhammad Khan and 14 others PLD 1970 SC 288; Muhammad
Bux v. Muhammad Ali 1984 SCMR 504 and Haji Muhammad Din v. Malik
Muhammad Abdullah PLD 1994 SC 291 ref.
Asghar Ali Khan Daim Khel for Petitioners.
ORDER
MUHAMMAD NAEEM ANWAR, J.---Impugned herein is the judgment and
decree of learned Additional District Judge-II, Bannu, dated 17.02.2021, whereby the
petitioners appeal was dismissed, consequently, order of learned Civil Judge-IV,
Bannu dated 15.09.2020 was maintained.
2. Necessary facts, as per contents of plaint, are that respondent No.1 filed a suit
for declaration to the effect that she is owner in possession of property, description of
which was given in head note A of the plaint, situated in the revenue estate of Howed
Khas Tehsil and District Bannu, entries in revenue papers on the basis of mutation
No. 1685 dated 08.05.2014 in favour of defendants are the result of fraud, against the
fact, unwarranted, unjustified, mala fide and collusion therefore, ineffective upon her
rights and liable to correction. It was averred by him that neither she has gifted her
property to anyone including defendants nor she appeared before any revenue officer
for the purpose of alleged gift. Suit was contested by defendants through joint written
statement on different legal and factual objections. After conclusion of evidence,
learned trial court through its judgment and decree, decreed her suit. Being
dissatisfied, the petitioners have assailed the judgment and decree through appeal,
however, their appeal was dismissed vide impugned judgment and decree dated
17.02.2021, hence this revision.
3. Arguments heard and record perused.
4. The main gist of the arguments of the learned counsel for petitioners are that
they have proved the correctness and genuineness of the gift mutation by producing
relevant Tehsildar/revenue officer, the marginal witness thereof and that they have
filed an application for forensic examination of the thumb impression of
respondent/plaintiff, but the said application was incorrectly and illegally dismissed.
He further stressed that the plaintiff/respondent No.1 could not prove her version of
alleged fraud and collusion and despite that her suit was decreed, which resulted into
grave miscarriage of justice.
5. It is not disputed that plaintiff/respondent No. 1 has inherited the disputed
property from her mother. Record reveals that the suit was instituted on 28.04.2015
by which she has challenged the authenticity of mutation No. 1685 dated 08.05.2014,
which shows that within a year of attestation of mutation the suit was brought against
petitioners. Furthermore, plaintiff and petitioner No. 1 were wife and husband but
their relations were strained even in 2014 that was the reason that even at the time of
institution of suit plaintiff has not shown/written herself to be the wife of petitioner
No. 1. In such circumstances when they were not friendly with each other the transfer
of property and that too through gift was even otherwise a question mark and as such
petitioner was bound to prove the factum of gift i.e., offer, acceptance and delivery of
possession. Record is silent for any such evidence. Petitioners have placed on file
Talaq Nama, contents of which delineate that plaintiff and petitioner No. 1 never
remained in amicable terms with each other and ultimately in the year 2017 plaintiff
has filed a suit for dissolution of marriage, petitioner contested the suit till this court
when his Writ Petition No. 400-B/2018 was dismissed on 20.02.2020.
6. More-so, respondent No.1 was the owner of 11-Kanal 18-Marla in nine khasra
numbers which was shown to have allegedly been gifted to petitioners and when
challenged no evidence whatsoever was brought on record to prove the basic
ingredients i.e., (i) declaration/offer by the donor (ii) acceptance of gift by the donee
and (iii) delivery of possession under the gift without which no sanctity was attached
to the alleged gift. Wisdom is drawn from the principles enunciated in the case of
Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2019 SCMR 179)
wherein it was held that: -
"The revenue authorities must also be extra vigilant when purported gifts are
made to deprive daughters and widows from what would have constituted their
shares in the inheritance of an estate. The concerned officers must fully satisfy
themselves as to the identity of the purported donor/transferee and strict
compliance must be ensured with the applicable laws, as repeatedly held by
this Court, including in the cases of Islam-ud-Din v. Noor Jahan (2016 SCMR
986) and Khalida Azhar v. Viqar Rustan Bakhshi (2018 SCMR 30). Purported
gifts and other tools used to deprive female family members, including
daughters and widows, are contrary to law (shariah in such cases), the
Constitution and public policy."
7. No doubt the petitioners have produced witnesses but revenue officer deposed
that he himself did not know the doner, he also added that she was parda nasheen lady
and the witnesses who identified the plaintiff were not the relative of the plaintiff.
Interestingly, the petitioners have produced Idalat Khan Patwari Halqa as DW-1, who
deposed that he has been transferred to the concerned Patwar Circle some two years
ago and that neither he has entered the mutation nor in his presence the mutation was
attested. Petitioners have produced Muhammad Ibrar Khan as DW-2, who in his
examination deposed that Revenue Officer has checked CNIC of plaintiff whereas
Asmat Ullah retired Tehsildar appeared as DW-4 and deposed that neither the donor
had computerized national identity card nor he has entered it on the mutation Ex PW
1/1, thus the authenticity and correctness of mutation shrouded in mystery, besides
above the petitioners have not proved the declaration of alleged gift. In the case of
Wali Muhammad Khan and another v. Mst. Amina and others (2018 SCMR 2080)
Hon'ble Supreme Court has observed that:--
"The appellants had to establish that Mst. Pari had impressed her thumb
impression on it but made no effort to prove it, which they could have done by
having it forensically examined and having it compared with some document
on which she had admittedly impressed her thumb, such as her identity card
and or her passport. The appellants' case was that after gifting them her
property Mst. Pari proceeded to perform Hajj therefore she must have been
issued a passport, which is only issued to those possessing an identity card."
Guidance was also sought from the case law titled Naveed Akram and others v.
Muhammad Anwar (2019 SCMR 1095) Sikandar Hayat and another v. Sughran Bibi
and 6 others (2020 SCMR 214).
8. Accordingly, petitioners have not been able to prove the authenticity and
correctness of the alleged gift as their case is deficient of required evidence rather the
alleged gift itself is suffering from suspicion and doubts to sustain. Even otherwise
there are concurrent findings of fact of the court below which cannot be set aside in
revisional jurisdiction under section 115 of C.P.C. The question with respect to the
revisional powers of this Court was attended by the august Supreme Court in a case
titled "Umar Dad Khan and another v. Tila Muhammad Khan and 14 others" reported
as PLD 1970 SC 288. The view was reiterated by the Hon'ble Supreme Court in a case
titled "Muhammad Bux v. Muhammad Ali" reported as 1984 SCMR 504. It was
further re-enforced by the august Supreme Court in a case titled "Haji Muhammad
Din v. Malik Muhammad Abdullah" reported as PLD 1994 SC 291 and now it is
settled principle of law that findings recorded by the court of competent jurisdiction
cannot be interfered with by the High Court, in exercise of its revisional jurisdiction,
under section 115, C.P.C., unless such findings suffer from jurisdictional defect,
illegally or material irregularity, which element in the instant case as discussed earlier
is missing. I have also studied the impugned judgments from all angles and found that
both Courts below have attended almost all aspects of the case. There is nothing in the
same which may warrant interference by this Court in the exercise of revisional
jurisdiction.
9. Thus, in view of the above discussion, the revision petition being without any
substance stands dismissed in limine.
MQ/106/P Revision dismissed.
;