1994 PLP 91 (CLC)

Petitioner was sued out by his step‑sister, the respondent, for declaration of invalidity of a registered gift deed dated 17‑6‑1957, alleged to have been executed by her in respect of the land inherited from Ahmad Din, the father of the parties. He contested the suit by specifically reiterating validity of the gift and nine issues were set down for trial in addition to the relating to relief. Plaintiff examined two witnesses in addition to her own statement made as P.W3 alongwith a copy of the gift deed in dispute being produced as Exh.P.1 and that of the mutation based thereon as Exh.P.2 and those of the Jamabandis as Exhs.P3 and P.4. Petitioner examined Manzoor Ahmad as D.W.1 and himself entered the witness‑box as D.W.2.

2. After considering the evidence of the parties learned trial Judge concluded under issue No.8 that execution of the alleged gift deed had not been proved. He observed that Gul Muhammad Lambardar who had identified the donor at the time of execution of the deed had not been produced nor had the failure in that behalf been accounted for. He also held under issue No.2 that possession under the alleged gift was not transferred to the defendant and the suit for mere declaration brought against him was competent. Despite it, under issue No.4 he concluded with reference to Article 120 of the Limitation Act that the period prescribed being only six years, the suit filed 25 years after the execution of the gift deed was time‑barred. In result, he proceeded to dismiss the suit by his judgment dated 22‑10‑1985.

3. Plaintiff's appeal there against came up for hearing before a learned Additional District Judge who viewed the question of limitation differently for the reason that the parties happened to be a brother and sister born to the same father out of two women and, they being co‑sharers, declaratory form of the suit was correct inasmuch as trial Court had rightly concluded under issue No.2 that there was no transfer of possession made in favour of the defendant. He also affirmed the trial Court's finding under issue No.8 that due execution of the alleged gift deed had not been proved inasmuch as neither the scribe of the deed nor any of the attesting witnesses or the stamp‑vendor and not even the Lambardar who identified the executant had been produced by the defendant who was under an obligation to have duly proved the gift deed to have been executed by the illiterate woman, suing to have it set aside. His observations in affirmance of the view of the trial Court are worded thus:‑‑ "All these persons were most important witnesses to prove the execution of the gift‑deed in question. None of them was produced by the respondent to prove his contentions, specially when the appellant had denied the execution of this document by her in favour of the respondent. There was no material available on record to show as to why none of these persons was not examined as a witness in this case by the respondent to " prove his contentions. The learned trial Judge, had, in these circumstances, rightly concluded, under issue No.8, that, the impugned gift‑deed was not a valid document, and, had rightly decided issue No.8 in favour of the appellant, against the respondent. Such findings contained in the impugned judgment are upheld." In result, while affirming the trial Court's finding under issue No.8 to the effect that the plaintiff had not been proved to have executed the deed of gift, he concluded that the suit is within time and accepting the appeal by his judgment dated 26‑1‑1987, he set aside the trial Court's judgment and decree into decreeing the suit in favour of the plaintiff. Defendant has now come up to this Court on revision.

4. Faced with the concurrent findings of fact justified on the record, reached by the two Courts below to the effect that there was no gift deed proved to have been executed by the plaintiff in favour of the defendant, learned counsel has argued the point of limitation alone. He as contended that declaratory suit brought some 25 years after the date of execution of the deed of gift in question, is time‑barred under the provisions of Article 120 of the Limitation Act. It is not possible to uphold this contention in the circumstances hereof because there are concurrent findings against the petitioner to the effect that execution of the gift deed has not been proved and it was simply assigned the mark `A' for the purpose of identification. There is no explanation available from the record about the failure of the defendant to produce any of the witnesses materially concerned with the drawing up and registration of the deed in questions. Undeniably, it was his duty to have satisfactorily proved that gift deed in his favour was properly executed by the plaintiff, a rustic village woman, voluntarily and without improper influence, on the basis of independent evidence. No such evidence was, however, led and the gift deed remaining unproved according to law until today, there cannot be any question of limitation running out for throwing challenge to an assertion being made to such an effect and muchless may it be possible to hold her suit to be time barred on account of the provisions of Article 120 of the Limitation Act which set down the date of accrual of right to sue as the starting point. Since right to sue can come into being only upon the awareness about the hostility affecting the right of a plaintiff, therefore, defendant was bound to have positively proved that the plaintiff had gained knowledge of the existence of a lawful document adverse to her but has not so proved on the record, therefore, he cannot be taken to have discharged the burden of proof of the relevant issue No.4 and the suit is not liable to be held time‑barred on the mere consideration that the document in dispute is 25 years old. Hence, contention of learned counsel is repelled.

5. There is no other argument raised for consideration.

6. This case really stands concluded with the concurrent findings of fact, justified on the record, reached by the two Courts below under issues No.l, 2 and

8. There does not exist any ground or reason for interference therewith.

7. Result of the foregoing is that there is no force in the revision petition which is, hence, dismissed with costs. H.B.T:/A‑489/L Revision dismissed.