1. Through this civil revision petitioner has challenged the judgment & decree dated 16.4.2009 passed by the learned Additional District Judge, Chakwal whereby appeal filed by the respondent-plaintiff was accepted and the judgment & decree dated 18.10.2005 passed by learned Civil Judge Class-II, Chakwal dismissing the suit for declaration filed by the plaintiff-respondent was reversed.
2. Brief facts of the case are that plaintiff-respondent on 28.3.2000 filed a suit for declaration that plaintiff and defendant No. 2 are entitled to inherit Ali Bahadur son of Muqarab Khan 2/9 share from his inheritance and challenged mutation of gift No. 1672 attested on 7.1.1992 by the said Ali Bahadur in favour of defendant No. 1. Written statement was filed. Suit was contested. The case as pleaded in the plaint is that the grandfather of the parties Muqarab Khan was having four sons namely Athar Khan father of defendant No. 1, Singh Khan, Ali Bahadur and Ghulam Qadir. Ali Bahadur died issueless. As he was paternal uncle of the plaintiff and defendant No. 2, therefore, they were entitled to inherit 2/9 share from his inheritance and defendant No. 1 fraudulently got executed mutation of gift in his favour bearing No. 1672 on 7.1.1992.
The reasons for declaring the gift as null and void have been stated as the eyesight of Ali Bahadur was very weak, he was hard of hearing being of an advanced age. He was chronic patient and was unable to understand his rights and that the alleged gift was during “Marz-ul-Mout”. The gift is forged and fictitious and against the law. The possession has not been transferred. The share of the donor was 1/4th whereas 1/3rd share has been transferred. In the written statement various preliminary objections with regard to maintainability of the suit were raised and on facts the pleadings were denied. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court vide judgment & decree dated 18.10.2005 dismissed the suit. Appeal was preferred which was accepted by the learned first appellate court vide judgment & decree dated 16.4.2009. Hence, this civil revision by the petitioner-defendant.
3. I have heard learned counsel for the parties at length, gone through the record, evidence oral as well as documentary produced by the parties, findings recorded by both the courts below, relevant law and judgments of the august Supreme Court of Pakistan on the subject.
4. Plaintiff opted to appear as his own witness as PW-1 and produced no other witness. In the cross-examination PW-1 admits that Ali Bahadur died in the year 1994 and he has admitted that he died his natural death due to fever. He admitted that since attestation of mutation till the death of Ali Bahadur no one challenged the impugned mutation. The statement of Gul Zaman DW-2 that at the time of gift the possession was transferred to the defendant. This portion of statement of the said witness has not been challenged in the cross-examination. Defendant appeared as DW-1 to support his version and produced Gul Zaman DW-2 and states that he was present at the time of attestation of mutation and mutation which has been produced as Exh.P.3 as well as Exh.D.1 after attestation was incorporated in the revenue record i.e. Jamabandi which carries the presumption of correctness and requires strong rebuttal evidence. Reliance can be made on “Ikhtiar Muhammad and another versus Haji Abdullah Jan and 4 others” (PLD 2008 Quetta 07), “Abdul Ahad and others versus Roshan Din and 36 others” (PLD 1979 SC 890) and “Muhammad Amir and others versus Mst. Beevi and others” (2007 SCMR 614).
Further attestation of gift mutation is dated 7.1.1992 whereas according to the entry of death of donor Ali Bahadur he died on 20.11.1994. He never disputed the impugned mutation of gift and challenged the same before any forum even the gift was never challenged till 2000 when the suit subject matter of this civil revision has been filed, which is certainly after the prescribed period of limitation and when the donor never disputed the gift plaintiff of the suit becomes the 3rd person. If the donor has never disputed the gift in his life time, therefore, plaintiff has no right to challenge that mutation. The judgment of learned Division Bench of this Court reported as “Muhammad Jalil and 4 others versus Muhammad Sami and 8 others” (PLD 2006 Lahore 619) can be safely relied.
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