1987 PLP 1068 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ S. 115‑‑Revisional jurisdiction, exercise of‑‑Plea of attornment not taken and stressed in Courts below, held, could not be taken in revisional jurisdiction‑ ‑Even other land b7e‑ln‑g under cultivation through a tenant no hard and fast evidence was adduced to prove attornment. Awan Muhammad Hanif Khan for Petitioner. Shaukat Ali Mehar for Respondents. Date of hearing: 10th January, 1987. This civil revision calls in question the judgment /decree, dated the 20th of February, 1985 of the learned Additional District Judge, Kasur, whereby the petitioner plaintiff's first appeal was dismissed.

2. In her suit the petitioner Mst. Taleh Bibi challenged that the gift of the impugned land made by her in favour of her own brother, respondent, by virtue of decree dated the Ist of April, 1974 was of no effect, in that, it was obtained through fraud, collusion etc. and further that it was not accompanied by delivery of possession. The suit was seriously contested by the respondent maintaining that not only the petitioner but also the other sister Mst. Sabran had jointly gifted away their respective shares in the land in dispute and that eversince it was cultivated by him both as a co‑owner in his own right and donee. He denied the alleged fraud‑collusion or misrepresentation etc.

3. Both the Courts below concurrently held that there was no fraud committed by the respondent in relation to the gift and that it had been completed by delivery of possession in favour of the respondent who, in fact, was cultivating it.

4. Awan Mohammad Hanif Khan for the petitioner assailing the findings of the Courts below contended that at least two Marlas in excess were conveyed to the respondent through the mutation. Referring to the decree, he maintained that in all 46 Kanals 9 Marlas were sought to be transferred through the impugned gift but the mutation (Exh.P.5) instead transferred 46 Kanals 11 Marlas, He submitted that the excess area of two Marlas being of Sikni type was very valuable and that it should not have been so lightly taken away from the petitioner without her consent. Even otherwise he observed that there was no delivery of possession particularly because the petitioner was, even tin today, receiving Batai from the respondent.

5. Be that as it may, the questions raised are of fact and the findings recorded thereon concurrently by the Courts below cannot be so easily assailed in Revision. The Khasra Girdawari amply shows that the respondent is in cultivating possession of some of the Khasra numbers while others are being occupied by the other brother Ismail. Possession of the respondent will, of course, be either as co‑sharer or donee or tenant under the petitioner. That is sufficient to prove the so‑called delivery. Absence of attornment should have been stressed but the Courts below did not find the point in favour of the petitioner. Again it is a question of fact and cannot be raised at this stage. Even otherwise the land being under cultivation through a tenant no hard and fast evidence was adduced to prove attornment. The findings on the point cannot be disturbed.

6. However, there was no reason to give the respondent two Marlas in excess. The revision petition is partly accepted only to that extent, namely, that the gift will be restricted only to 46 Kanals 9 Marlasf whereas the two Marlas given to the respondent beyond the area decreed will revert back to the petitioner. The petition is accordingly disposed Of . H.B.T./T‑1/L??????????????????????????????????????????????????????????????? Revision partly accepted.