2022 PLP 678 (MLD)

SHAHID BILAL HASSAN, J.

This single order will dispose of the captioned civil revision as well as connected revision petition bearing No.3439 of 2012, as in both one and the same consolidated judgments and decrees have been called into question.

2. Precisely, the present petitioner Mst. Anwari Begum instituted a suit for possession of three rooms in a house constructed on 4 marlas of land bearing Khasra No.643/249 Khata and Khatuni No.23/25 situated within area of Municipal Committee Sarai Alamgir, against the respondent and alleged that she is owner in possession of the whole house by virtue of registered gift deed No.521/1 dated 02.011.1999 (Ex.P3) and period Record for the year 1999-2000 (Ex.P2). The suit was decreed ex parte but the said decree was set aside by the learned trial Court and respondent/defendant contested the suit by filing written statement as well as the respondent/ defendant instituted a separate suit for declaration with consequential relief related to the same subject matter and alleged that he was owner in possession of the suit property on the basis of oral gift made by father of the parties in the year 1978. Registered gift deed in favour of the petitioner was sought to be declared ineffective. The present petitioner contested suit of the respondent. Both the suits were consolidated and consolidated issues were framed by the learned trial Court. Both the parties adduced their evidence. The learned trial Court vide impugned consolidated judgment and decree dated 19.10.2011 dismissed suit of the petitioner for possession and decreed the suit of the respondent for declaration with consequential relief. Being aggrieved, the present petitioner preferred two separate appeals and the learned appellate Court vide impugned consolidated judgment and decree dated 09.07.2012 dismissed the appeal, which has necessitated in filing the instant revision petition as well as connected civil revision.

3. Heard.

4. Both the parties claiming their ownership possession over the disputed property on the basis of alleged gifts made by their father Muhammad Ramzan: registered in favour of the present petitioner and oral in favour of the respondent. However, the petitioner has failed to plead and prove as to when, where and in whose presence the offer was made, which was accepted and there-after possession was delivered, though in such eventualities constructive possession is considered but the same is also lacking in this case. Deposition of P.W.2 on behalf of the present petitioner is based on hearsay so the same has no evidentiary value in the eye of law. Moreover, the P.W.1 special attorney of the present petitioner is her husband, who is an interested witness. Apart from this, the petitioner could not produce the revenue officials so as to prove that father of the parties appeared before the revenue officer and got the gift deed registered in favour of the present petitioner. Furthermore, the alleged gift deed does not find mentioned the National Identity Card of the donor Muhammad Ramzan. Even otherwise, at the time of recording evidence Muhammad Ramzan, father of the parties/donor, was alive but the present petitioner did not produce him in the witness box and it has been argued that he appeared during ex parte proceedings and recorded his statement in favour of the petitioner, but it is worth-mentioning that his age was recorded as 90 years, meaning thereby he was not in a condition to know the pros and cons of his statement and he did not face any cross-examination on behalf of the respondent. Moreover, the said ex parte proceedings and decree have been set aside, so the value of the said statement has rightly been discarded by the learned Courts below. In addition to the above, the petitioner could not lead any evidence that she temporarily gave the disputed property to the respondent and he later on refused to hand over vacant possession of the same. As such, the learned Courts below have rightly non-suited the petitioner, concurrently, by dismissing her suit for possession of three rooms.

5. So far as the claim of the respondent is concerned, the same is based on oral gift by Muhammad Ramzan, deceased father of the parties. However, the respondent could not prove as to where the offer was made, which was accepted and possession was delivered to the present respondent, because in such like cases of oral gift or agreements, unimpeachable, cogent, confidence inspiring and reliable evidence is required to be produced, which is lacking in this case of the present respondent. D.W.3 while recording his statement in the Court on 11.07.2011 recorded his age as 45 years, meaning thereby at the time of alleged oral gift in the year 1978, he was aged about 12 years, but during cross-examination he claimed his age at that time as 24/25 years, which is sufficient to declare him a liar and not trust-worthy. Moreover, there is contradiction in the depositions of D.Ws. with regards to construction of the house either by Muhammad Ramzan or Muhammad Akram, because D.W.2 deposed that house was constructed by Muhammad Ramzan and D.W.3 stated that only one room was constructed by Muhammad Ramzan and other rooms and upper storey was constructed by Muhammad Akram. Therefore, such like contradictory evidence cannot be relied upon to determine the rights of the parties. It seems that when the petitioner Mst. Anwari Begum asserted ownership on the basis of registered gift deed, the present petitioner raised his claim on the basis of oral gift as back as in the year 1978 by Muhammad Ramzan, deceased father of the parties. Same remained the situation with the present respondent that he could not bring on record that statement of his father Muhammad Ramzan during his evidence.

6. In view of the above, the learned Courts below have misread and non-read evidence on record and have committed material illegalities and irregularities while passing the decree in favour of the respondent declaring him to be owner in possession of the disputed property on the basis of oral gift. As such, the same cannot be allowed to hold field further.

7. For the foregoing reasons, the revision petition in hand bearing No.3438 of 2012 is allowed, impugned consolidated judgments and decrees, to the extent of decreeing the suit of the respondent for declaration with consequential relief is set aside, consequent whereof the suit stands dismissed, whereas the connected revision petition bearing No.3439 of 2012 stands dismissed. In this backdrop the property will revert to Muhammad Ramzan, deceased father of the parties and will be devolved upon the parties according to their shares in accordance with law. No order as to the costs. SA/A-79/L Petition allowed.