Gift and Amendment in Pleadings 2014 M L D 766 [Lahore] Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ HAIDER ALI KHAN and another---Appellants Versus RAZIA BEGUM and others---Respondent R.F.A. No.110 of 2007, heard on 1st October, 2013. (a) Specific Relief Act (I of 1877)--- S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Gift---Ingredients---Mutation of gift, attestation of---Essentials---Contention of plaintiffs was that suit land was gifted in their favour by their grandfather---Validity---Plaintiffs were required to prove entry of rapt roznamcha as well as the events of gift i.e. offer, acceptance and delivery of possession for establishing claim of gift---Plaintiffs were to plead events of gift with full detail along with names of witnesses before whom same had taken place while there was no document or record available with regard to such events---Plaintiffs had not pleaded that before the entry of rapt roznamcha events of gift were completed---Oral gift had been claimed by the plaintiffs without mentioning any date of offer of the gift---Entering date of gift in the plaint was not sufficient for pleading a case on the basis of gift---No independent witness had been produced to prove gift---No identification of lumberdar or pattidar of alleged donor was available in the rapt---Rapt roznamcha contained the signatures of witnesses but not of donor---Entry of mutation of gift did not bear the signatures of witnesses---No signature of donor upon the said document was available and there was no mention of lumberdar or pattidar---Assistant Commissioner had rightly refused to pass the mutation---Statement with regard to event mentioned in the mutation by the transferor as well as attestation of the same by the lumberdar or pattidar was necessary for passing any mutation except of inheritance---No such statement was available on the record---Observing of formalities was necessary for incorporation and attestation of mutation---None of the formalities had been proved by the plaintiffs---When donor did not appear before the revenue officer to confirm previous event of gift, there was no occasion for donor to attest the mutation of gift---Plaintiffs had failed to prove the ingredients of gift---Findings recorded by the Trial Court were in accordance with law---No case for interference by the High Court had been made out---Appeal was dismissed in circumstances. (b) Islamic law--- ----Gift---Proof of---Offer, acceptance and delivery of possession was necessary for proving a gift. (c) Civil Procedure Code (V of 1908)--- ----O. VI, R. 17---Amendment of pleadings---Scope---Provisions of O.VI, R. 17, C.P.C. were permissive in nature and same could be used in order to foster justice and not the in-justice. Muhammad Jaffar Javed Khan for Appellants. Mehmood Ashraf Khan and Ch. Abdul Ghani for Respondents. Date of hearing: 1st October, 2013. JUDGMENT AMIN-UD-DIN KHAN, J.---Through this appeal appellants have challenged the judgment and decree dated 13-7-2007 whereby suit for declaration filed by the plaintiffs-appellants was dismissed. 2. Brief facts of the case are that plaintiffs-appellants on 19-10-2004 filed a suit for declaration that they be declared owner of suit land on the basis of gift by their grandfather Muhammad Riaz Khan and challenged the order of Assistant Commissioner-II dated 13-10-2004 whereby attestation of Mutation No. 2191 was refused. According to the facts mentioned in the plaint, their grandfather Muhammad Riaz Khan was the owner of the suit land measuring 416 kanals 13 marlas situated in Mauza Qadirabad, Tehsil and District Vehari, who gifted the same to them before the witnesses, which was accepted by the plaintiffs and possession was delivered and therefore they are owner of the suit property. It was further pleaded that Muhammad Riaz Khan got entered Rapt No. 43 on 1-1-2004 with regard to Hiba and Mutation No. 2191 was also entered and unfortunately said Muhammad Riaz Khan passed away due to heart-attack on 2-10-2004, therefore, Assistant Commissioner did not pass Mutation No. 2191, therefore, they filed the suit. Through amended plaint mutation of inheritance of Muhammad Riaz Khan bearing No.2195 attested on 27-7-2005 was also challenged. All the defendants except defendant No.2, filed contesting written statement and contested the suit. Defendant No. 2, who is father of the appellants, filed a consenting written statement. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 13-7-2007 learned trial court dismissed the suit. Hence, this appeal. 3. C.M.No.1482/2009 has been filed by the appellants under Order VI, Rule 17 of the C.P.C. for permission to amend the plaint so as to mention date of gift as 30-9-2004 in Paras Nos. 1 and 5 and other paragraphs of the plaint. Reply has been filed to this C.M., wherein this C.M. has been vehemently opposed. 4. We have noticed that in the plaint there is claim of oral gift without any date mentioned in it. Now the plaintiffs want to amend the suit in order to mention the date of oral gift in the plaint. 5. Learned counsel for the applicants argues that by allowing this application, nature of the suit will not change and further that it will not be harmful for any of the parties and that the applicants will not pray for further permission to produce evidence after amendment if allowed by this Court. 6. On the other land, learned counsel for the respondents have vehemently opposed this application by saying that as there was no specific date of gift mentioned in the plaint and now the plaintiffs have moved this application in order to cover up the defect, when date of gift was given by one of the plaintiffs i.e. Haider Ali who appeared as P.W.4 and stated that his grandfather offered the gift of the property on 30-9-2004, therefore, states that the application is liable to be dismissed. 7. We have considered the arguments of learned counsel for the parties. Oral gift has been claimed by the plaintiffs without mentioning any date of offer or the gift. The only pleading is with regard to getting the entry of Roznamcha on 1-10-2004. It seems that this application has been filed in order to remove the defect, as the date of gift was mentioned in the statement of P.W.4. In this view of the matter, at this stage we are not convinced with the arguments of learned counsel for the applicants to exercise our discretion and jurisdiction in their favour. The provision of Order VI Rule 17 are permissive in nature, same can be used in order to foster justice and not the in-justice. At this stage allowing this application will be in-justice with the defendants, therefore, this C.M. is not maintainable, same is dismissed. 8. Through C.M.No.1972-C of 2011 it has been prayed that as defendant No. 2 has admitted the suit, therefore, to his extent the suit be decreed. 9. Learned counsel for the applicant has reiterated the pleadings of this application with the prayer to accept the same and decree be passed at least against defendant No. 2 to his extent. 10. On the other hand, learned counsel for the respondents argues that application is absolutely not sustainable under the law as the claim of the plaintiffs is not divisible, if they succeed they will succeed fully and if their claim is not accepted, the same will be dismissed totally and if defendant No. 2, who is their father, wants to transfer his share received through inheritance from his father, he can transfer the same out of the court also, therefore, this application is not sustainable. 11. We have considered the contentions raised by learned counsel for the parties. It is admitted position that claim of the plaintiffs-applicants is with regard to a gift of the land by their grandfather in his lifetime in their favour, who died even the next day of the alleged entry of gift in the Roznamcha Waqiati and mutation of inheritance has also been sanctioned, therefore, this application is not sustainable under the law, same is dismissed. 12. So far as claim of the plaintiffs in the main R.F.A. that their grandfather who gifted the suit property to them got entered the Roznamcha Waqiati of Patwari on 1-10-2004 and the same was entered in the presence of the witnesses Javed Iqbal and Muhammad Yar and also the mutation was entered on the same date, is concerned, learned counsel states that the plaintiffs have proved their case through cogent and convincing evidence but learned trial court has fallen in error while dismissing the suit. 13. On the other land, learned counsel for the respondents argues that the findings recorded by the learned trial court are in accordance with the evidence available on the file and on the basis of forged and fictitious Rapt which was got entered with the connivance of Patwari and the witnesses, one of whom is father of the plaintiffs and other is father-in-law of one of the plaintiffs, filed the suit in hand, which has been rightly dismissed. 14. We have heard learned counsel for the parties and have gone through the record with their able assistance. 15. For establishing claim of gift the plaintiffs were required to prove entry of Rapt Roznamcha as well as mutation and the events of gift i.e. offer, acceptance and delivery of possession under the gift. Even it is not the case of the plaintiffs that before the entry of Rapt Roznamcha events of gift i.e. offer, acceptance and delivery of possession were completed. When an event for which there is no document or record available, the plaintiff is required to plead the same with full detail along with the names of the witnesses before whom that event has taken place. No such pleading is available on the file C.M.No.1482-C of 2009 was filed for entering date of gift in the plaint, which has been dismissed even the entry of date was not sufficient for pleading a case on the basis of gift. So far as Rapt Roznamcha is concerned, both the witnesses are interested, as the defendants have alleged that it is with the connivance of Patwari, who appeared as P.W.1 and Muhammad Yar who is father-in-Law of one of the plaintiffs, appeared as P.W.2 and P.W.3 is real father of the plaintiffs and one of the plaintiffs appeared as P.W.4. No independent witness has been produced to prove the gift. Even in the Rapt there is no identification of Lumberdar or Pattidar of the alleged donor. This Rapt Roznamcha contains the signature of the witnesses but not of the alleged donor. Further even Exh.P2 which is entry of mutation of gift does not bear the signatures of the witnesses. There is no mention of the Lumberdar or Pattidar and also there is no signature of the alleged donor upon this document. Assistant Commissioner has rightly refused to pass the mutation, as for passing any mutation except of inheritance, the statement with regard to event mentioned in the mutation by the transferor as well as attestation of the same by the Lumberdar or Pattidar is necessary but no such statement is available on the record, therefore, mutation has been rightly refused. 16. In accordance with Para 149 of Muhammandan Law by D.F. Mulla, for proving a gift, offer, acceptance and delivery of possession is necessary. Plaintiffs failed to prove all the ingredients of gift, therefore, learned trial court reached to a right conclusion while dismissing the suit. 17. For incorporation and attestation of mutation, observing of formalities mentioned in section 42 of the Land Revenue Act, 1967 is necessary. None of the formalities has been proved by the plaintiffs when the alleged donor never appeared before the revenue officer to confirm his previous event of gift of the suit land in favour of the plaintiffs, there was no occasion with the revenue officer to attest the mutation of gift in favour of plaintiffs. In this view of the matter we have seen that the findings recorded by the learned trial court are in accordance with law. 18. For what has been discussed above, no case for interference by this Court while exercising jurisdiction under section 96 of the C.P.C. has been made out, therefore, this appeal stands dismissed with costs throughout. AG/H-18/L Appeal dismissed.
Posted on: Thu, 18 Dec 2014 14:30:33 +0000
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