2019 PLP 1710 (CLC)

SHAKEEL AHMAD, J.

This revision petitioner filed under Section 115, C.P.C. is directed against the judgment and decree dated 07.04.2017, passed by the learned Additional District Judge-VI, D.I. Khan, whereby the appeal filed by the petitioner Saif-ur-Rehman against the judgment and decree of the learned Civil Judge-VI, D.I. Khan, dated 19.07.2012, decreeing the suit filed by the respondent No.1/Aziz-ur-Rehman, was dismissed.

2. Facts leading to the filing of the instant revision petition are that respondent No. 1 Aziz-ur-Rehman brought a suit for declaration and possession through partition of suit shop against his brothers and sisters, wherein Saif-ur-Rehman was main contestant, while remaining respondents/defendants were arrayed as proforma defendants. It was claimed by the respondent No.1/plaintiff that the suit shop was the ownership of the predecessor-in-interest (father) of the parties, namely Muhammad Ramzan and after his death the suit property was devolved upon his legal heirs, wherein each brother was to receive 2/12 shares and each sister 1/12 shares, however, after death of the said Muhammad Ramzan, the petitioner/defendant No. 1 occupied the suit shop by contending that 1/3rd of the shop had been gifted to him by his father vide registered deed No. 181 dated 30.01.2003 and the remaining 2/3rd share of the shop was sold to him through registered deed No. 1170 dated 26.05.2003. The respondent No.1/plaintiff impugned both the deeds, alleging it to be fraudulent, forged, fictitious obtained by playing fraud, mis-representation and collusion, therefore, ineffective upon the rights of the other legal heirs of the deceased and also sought cancellation of the impugned deeds and possession through partition of the suit property. The respondent No.1/plaintiff also claimed that he had been receiving rent of the suit shop, but suddenly, the petitioner claimed title over the suit shop under the garb of impugned deeds, which constrained him to file the suit. The suit was contested by the present petitioner by way of filing written statement, wherein besides, taking legal objections the factum of gift and sale in his favour by deceased (Muhamad Ramzan) was specifically claimed denying the plaintiff s allegation of fraud. The learned trial Court keeping in view the contesting pleadings of the parties framed the following issues and directed the parties to produce their evidence. ISSUES. i. Whether plaintiff has got a cause of action and locus standi? ii. Whether plaintiff stopped to sue due to his own words and conduct? iii. Whether the suit in hand is time barred? iv. Whether the suit in hand has properly been valued for the purpose of Court fee? vi. Whether the suit is time barred? vii. Whether plaintiff and proforma defendants have 10/12 share in the suit shop? viii. Whether the impugned gift Wasiqa No. 181 registered on 30.10.2003 and Wasiqa No. 1170 registered on 26.05.2003 from Muhammad Ramzan in favour of real defendant are wrong, bogus and void and liable to be cancelled? viii. Whether plaintiff' is entitled to the decree as prayed for? ix. Relief?

3. Petitioner, Aziz-ur-Rehman produced Muhammad Saleem Akhtar as PW-1, who stated that plaintiff had cordial relation with his father. Muhammad Akhtar Saleem was examined as PW-2, who supported the stance of the respondent/plaintiff. He is brother in law of the petitioner and respondent No. 1 Aziz-ur-Rehrnan appeared himself as PW-3 and recorded his affirmative evidence. Muhammad Aslam was produced as PW-4 he deposed that the contents of Nikah Nama, dated 18.12.1997 of the petitioner (Ex. PW. 4/1) and also tendered register of petition writer as Ex. PW. 4/2 and closed his evidence. On the other hand petitioner produced Abdul Hameed ASI Excise and Taxation Department, who tendered record of Excise and Taxation Department, as Ex. DW-1/1 to house (upper story) No. 3476-1/B and of shop, Ex. DW-1/2. Abdur Rauf registry Moharir of Sub-Registrar office was produced as DW-2, who tendered registered deed No. 181 as Ex. DW-2/1 and map of shop as Ex. DW-2/2 (S.T.O) and registered deed No. 1170 attested on 26.05.2003 as Ex. DW-2/3 (S.T.O). Ubaid-ur-Rehman appeared on behalf of proforma defendants as their special attorney, tendered power of attorney as Ex. DW-3/l (STO) and supported the stance of the petitioner. Muhammad Ramzan was examined as DW-4, he is marginal witness of the sale deed Ex. DW-2/3, Abdul Khaliq appeared as DW-5, he had been tenant in the suit shop since 2007 to 2008 and paid the rent to the petitioner. Abdul Aziz was examined as DW-6, who is brother in law of the parties, he supported the stance of the petitioner Abdul Aziz son of Abdul Kareem appeared as DW-7, he deposed that he being attorney of the petitioner, got the suit property transferred in the name of the petitioner through gift deed and as well as through sale deed. Petitioner appeared as DW-8 and closed his evidence. On the conclusion of trial, the learned trial Court vide judgment dated 19.07.2012, decreed the suit in favour of the respondent No. 1/plaintiff. Against the judgment and decree of the learned trial Court, the present petitioner prepared appeal, but the same also dismissed by the learned Additional District Judge-VI, D.I.Khan vide judgment dated 07.04.2017, hence this revision.

4. The learned counsel for the petitioner contended that it was established from the evidence on record that Muhammad Ramzan not only gifted away 1/3rd of the suit property in favour of the petitioner with his free consent and also physically appeared before the Sub-Registrar and got the document attested voluntarily and that the respondent No. 1 failed to establish the element of fraud having been practiced against him. He next contended that the remaining suit shop (2/3rd) was sold to the petitioner through registered deed, which has been proved by producing its marginal witness. He lastly contended that the impugned judgment of the learned lower fora is result of misreading and non-reading of the evidence on record, which resulted in gross-miscarriage of justice, therefore, warrants interference as no weight was given to the said documents.

5. As against that, the learned counsel appearing on behalf of the respondents argued that the petitioner has miserably failed to prove the factum of gift and sale deed in question in his favour as well as the fact that Muhammad Ramzan (father of the petitioner) ever appeared before the Sub-Registrar and got the suit property transferred in favour of petitioner by way of gift sale deed. He further contended that the petitioner has failed to prove the essential ingredient of gift i.e. offer, acceptance and delivery of possession and payment of sale consideration to the seller, therefore these documents were rightly disbelieved by the Courts below. They lastly contended that the property in dispute was transferred in the name of the petitioner by practicing fraud and misrepresentation through fictitious deeds and concluded his arguments by contending that the two Courts below have recorded concurrent findings of facts, this Court while sitting in revisional jurisdiction is not supposed to interfere with the same unless the same suffers from jurisdictional defect or based on misreading or non-reading of evidence.

6. I have heard the learned counsel for the parties with due care and attention and also perused the record with their eminent assistance.

7. This being a civil revision as argued by the learned counsel for the respondents and rightly so that this Court while sitting in revision jurisdiction is not supposed to interfere in the concurrent findings of the learned lower fora unless it is established the judgments of the two Courts below were without jurisdiction or the two Courts below acted illegally or with material irregularity resulting into mis-carriage of justice. In this context reliance can be placed on the case reported as Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135), wherein it was held that revisional jurisdiction cannot be equated with that of appeal or equal to appeal and the High Court before examining revisional jurisdiction has first to satisfy itself whether the Subordinate Courts while passing the impugned judgments had the jurisdiction vested in them, whether it was a fit case where the revisional jurisdiction ought to be exercised and whether the impugned judgments of the Courts below suffer from illegality or material irregularity resulting into mis-carriage of justice. In this respect reliance can also be placed on the judgment reported as Shah Wali v. Muhammad Iqbal (PLD 2005 Lahore 2014), wherein it was observed that the concurrent findings returned in consonance with the record are immune from interference in revisional jurisdiction of High Court as mandated by Hon'ble Supreme Court in a chain of consistent judgments. In this behalf reliance can also be placed on the cases reported as Rasheed and others v. Sher Aman and another (PLD 2015 Peshawar 192), Allah Ditta v. Muhammad Bashir (1988 SCMR 1206).

8. In the light of above mentioned dictum of the Superior Courts, the record was consulted with due care and caution. A careful scrutiny of the above noticed oral as well as documentary evidence fully established that the suit property belonged to the father of the parties. The claim of the petitioner was that Muhammad Ramzan had gifted 1/3rd share of the suit shop in his favour through Ex. DW-2/1 and remaining 2/3rd was transferred to him by way of registered sale deed Ex. DW-2/3. After examining the record, I find myself in complete agreement with the learned counsel for the respondents, that the petitioner has miserably failed to prove factum of gift and sale deed in his favour. Perusal of cross examination of Abdul Aziz DW-6 and examination-in-chief of the petitioner reflects that gift deed as well as sale deeds were not effected in presence of the petitioner, the said two deeds even do not carry his signature or thumb impression. No witness has stated that Muhammad Ramzan (father of the petitioner) made a declaration of gift, that the petitioner accepted the gift and that Muhammad Ramzan delivered possession of the suit shop to the petitioner under gift. In fact there existed no valid ground whatsoever for gifting away the 1/3rd share of the suit property to the petitioner depriving his large family consisting of two sons besides, petitioner and six daughters from valuable property. The petitioner has not pleaded that the suit property was gifted away to him out of love and affection. He also failed to mention any date and place where offer and acceptance of gift was made in between the parties and in pursuance thereof possession was delivered to him, stance of the petitioner is belied in the absence of his signature on the impugned gift deed, which is suggestive of the fact that necessary ingredients of a valid gift were not fulfilled. In absence of such proof it can safely be held that the donor did not make a valid gift. In this context reliance can be placed on the case reported as Nasrullah Khan v. Resul Bibi (2001 SCMR 1156). In this respect reliance can also be placed on the case reported as Khalid Azhar v. Wiqar Rustam Bakhsh wherein it was held that the donee is essentially required to prove that the donor had offered to gift the suit property to him and that he accepted the said offer and that the possession of the subject under gift was delivered to him, the donee is also required to specify the date, time and place of the offer was made and complied by him and also as to when possession was delivered to him.

9. Perusal of the entire material produced on record reveals that the petitioner had not divulged such details. Another interesting feature of the case is that the petitioner admits in his cross-examination hat his father had disassociated relations with him since 2002, then how he could transfer 1/3rd share of the suit shop to him by way of gift.

10. Now adverting to the sale deed Ex. DW. 2/3, the word sale has been defined by Section 54 of the Transfer of Property Act, 1882 which says that "sale" means transfer of ownership in exchange of price or promised to be paid or partly paid and promised. Sale consideration is an essential component of a valid sale. In this respect reliance can be placed on the judgments reported as Dilawar Khan v. Mst. Badshah Zadi (PLD 2011 Peshawar 208), Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner (1984 SCMR 94). Petitioner appeared himself as DW-8 but said nothing about the payment of sale consideration rather he contended that his brother in law Abdul Aziz had carried out all the proceedings of registration against Rs. 70,000/-. He admits that in the year 2002 he was studying in B.A and had no bank account at all. Ubaid ur Rehman who appeared as DW-3 he was special attorney of proforma/defendants Nos. 3, 5 to 8, he admitted the claim of the petitioner, but he is neither signatory of the impugned deeds nor any sale consideration was paid before him. Likewise, perusal of statement of Abdul Aziz DW-7, who carried out the proceedings of registration of sale deed on behalf of the petitioner as his attorney, but no such attorney was produce to substantiate the claim of the petitioner he admitted in his cross examination in the following manner. DW-4 Muhammad Ramzan is marginal witness of the impugned deeds, he admitted that no payment was made on the spot. The registration Muharir Abdul Rauf (DW-2), he admitted that no payment had been made before Sub-registrar. The scribe of the deed namely Zafar Abbas was not produced to testify the execution of the impugned deeds as required under Section 79 of Qanun-e-Shahadat Order, 1984. The petitioner has failed to prove that sale price was paid to his father to the extent of 2/3rd partition of the suit shop, therefore, there is no sale in the eye of law as laid down by the Apex Court in "Muhammad Shafi's Case PLD 1986 SC 519". It is by now settled that when the basic order is without lawful authority then all the super structure, built on it shall fall on the ground as laid down by the August Supreme Court of Pakistan in "Yousaf Ali's Case PLD 1985 SC 104 and Cresent Sugar Mill's Case PLD 1982 Lahore 1". It is also settled law that question of limitation does not arise in inheritance cases as held in Fazal Jan's Case PLD 1992 SC 811 and Ghulam Ali's Case PLD 1990 SC 1.

11. It is admitted fact that both the Courts below had held that the impugned gift deed and sale deed proved to be fraudulent and never executed and thus it was a question of fact on which the Courts below rightly came to the conclusion to declare the said deeds as not genuine. Perusal of the findings of the Courts below leave no doubt at all that either the same suffer from jurisdictional defect or result of misreading or non-reading of evidence or the same have been recorded by committing any illegality or irregularity resulting into mis-carriage of justice.

12. For what has been discussed above, this revision petition has no force, therefore the same is hereby dismissed with no order as to costs. ZC/124/P Revision dismissed.