2006 PLP 2498 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner/defendant Mst. Sughran Bibi and the respondent/plaintiff Muhammad Nazir are sister and brother inter se. The petitioner impugns the appellate decree dated 7-6-2005, whereby the decree of the learned trial Court dated 23%0-2004 has been set aside and as a result a declaratory suit filed by the respondent/plaintiff has been decreed.

2. The dispute between the parties relates to a property comprising of land measuring 7-1/2 Marlas and a house constructed thereon which belonged to the father of the parties, namely, Rehmat Ali. The petitioner/defendant claims that the house was gifted to her vide registered gift deed (Exh.D.2) dated 19-11-1997. The respondent/plaintiff impugned the said deed; firstly on the ground that it had been fraudulently procured by the petitioner and, secondly, for the reason that it had been executed and registered during the pendency of an earlier declaratory suit which had been filed by the respondent/ plaintiff against his father Rehmat Ali.

3. The earlier suit was filed on 10-9-1996 wherein the respondent had claimed that his father Rehmat Ali had orally gifted 3 Marlas out of the suit-land to him. The plaint was subsequently amended and the respondent claimed that the entire property had been gifted to him. According to learned counsel, the aforesaid Rehmat Ali had not been served in the said suit when the respondent obtained an ex parte decree dated 19-12-1997. The said decree has, however, been set aside by means of an order passed by the learned trial Court dated 23-10-2004 allowing an application of the petitioner under section 12(2), C.P.C. The said order has been affirmed by a learned Additional District Judge in revision vide order dated 7-6-2005.

4. In view of the above the ground as raised by the respondent/plaintiff on the basis of lis pendens is, according to learned counsel, not available to him anymore.

5. As to the suit seeking nullification of the gift deed (Exh.D.2) learned counsel submits that the respondent/plaintiff did not produce any witness. So much so that he himself did not enter the witness-box to assert that the gift deed (Exh.D.2) had not been executed by Rehmat Ali. On the other hand, the petitioner produced the scribe Muhammad Kafayatullah as D.W.1 and also produced Muhammad Riaz, one of the marginal witnesses, as D.W.2. Both of these witnesses proved the execution of the deed by Rehmat Ali. The other marginal witness to the gift deed, namely, Muhammad Siddique Ahmed having died could not be produced by the petitioner. The petitioner herself appeared as D.W.3 to support her case.

6. Learned counsel contends that in view of the above the learned trial Court was fully justified in dismissing the suit of the respondent/plaintiff and that the appellate decree in favour of the respondent being without evidence to support the respondent's case, is not legally sustainable.

7. Learned counsel for the respondent was unable to controvert the submissions advanced on behalf of the petitioner as noted above. He merely contended that the petitioner had acquired a right during the pendency of the earlier suit. This alone cannot be a ground for non-suiting the petitioner because acquisition of title, during the pendency of a suit, is not void. The only effect of the principle of lis pendens is that the transferee acquires title subject to the outcome of the Lis.

8. The learned Appellate Court has proceeded on the basis of considerations which are conjectural. It has observed that both parties tried to appropriate the legacy of their deceased father. There is no support, in the available evidence, for this conclusion. As noted above, the respondent/plaintiff did not produce any witness and nor did he himself enter the witness-box to state that the gift deed (Exh.D.2) had not been executed by his father. The petitioner, on the other hand, had proved the execution of the gift deed through witnesses.

9. At this juncture, it may be noted that it was for the respondent/plaintiff to prove Issue No.4, which had been framed in the following terms: "Whether registered gift deed dated 19-11-1997 is against the law and fact and is liable to be declared as such? OPP." Since the respondent/plaintiff did not appear in Court or produce any witness to prove this issue, his suit could not possibly have been decreed.

10. The learned Appellate Court has also held that since the petitioner did not produce the second marginal witness to the gift deed, the testimony of her witnesses was not sufficient for proving execution of the said deed. This finding proceeds on a fundamental misconception of the law. The onus of proving Issue No.4 as noted above, was on the respondent/plaintiff, it was firstly, for him to appear in Court and testify. Only if he had done so, the onus of proof would have shifted on to the petitioner/defendant. Since the onus of proof never shifted on to the petitioner, any infirmity in her evidence could not have been made the basis for decreeing the suit of the respondent/ plaintiff. In any event, it may be noted that the second marginal witness, namely, Muhammad Siddique Ahmad had died and it is for this reason he was not produced in Court.

11. In view of the above discussion, I find the Appellate decree to be a result of illegality in the exercise of the Appellate Court's jurisdiction. The same is, therefore, set aside. As a result, the decree of the learned trial Court dated 23-10-2004 stands restored.

12. The petitioner shall also be entitled to her costs throughout. H.B.T./S-121/L Revision allowed.