2013 PLP 1703 (YLR)

S.42

Suit for declaration to the effect that plaintiff-respondent was owner in possession , of disputed house and registered gift deed in favour of defendant-petitioner with regard to said house was wrong, based on mala fide, against law and liable to cancellation and ineffective upon the rights of plaintiff-respondent--Contention of plaintiff-respondent was that suit house was given to her as dower at the time of her Nikah by her father-in-law and said fact had been mentioned in the Nikahname of the 'plaintiff-respondent--Suit was-decreed concurrently

Validity

Secretary Union Committee appeared in the witness box on behalf of plaintiff-respondent who brought on record the original Nikahnama, a copy of which was placed on file and said witness was not cross-examined by the defendant-petitioner despite opportunity afforded to him

Witnesses of plaintiff-respondent affirmed the contents of Nikahnama as well as the Nikah

Nikahnanza with contents stood proved

Defendant-petitioner was bound under the law to prove the three requisites of a valid gift i.e. offer, acceptance and delivery of possession but he did not prove the gift-deed and evidence recorded by him offered no support to hint-Father of defendant petitioner was a doctor by profession but strangely enough his signature as appeared on the gift-deed was in Urdu

Donor at the time of gift-deed was in the twilight of his life and instead of the gift-deed being witnessed and signed by some relatives of the defendant-petitioner, both the witnesses of the gift-deed were the bailiffs of the court which cast doubt on the execution of the gift deed

Brother of defendant petitioner appeared in the witness box who caused immeasurable dent to the defendant's version when he on the one hand supported the Nikahnama of the plaintiff-respondent with contents viz. the disputed house and simultaneously launched a frontal attack on the gift-deed by terming the same to be fake and bogus on which the signature of his father had been forged

Findings of courts below were based on proper appreciation of facts and law and did not suffer from any illegality or material irregularity. S.115

Revisional jurisdiction of High Court

Scope

Courts below had recorded concurrent findings of fact which were based on sound appreciation of evidence available on the file and the same could not be set at naught unless it was proved that the same were either perverse or erroneous

Revision petition was dismissed. Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel. JUDGMETN QAISER RASHID KHAN, J.--Through the instant revision petition, the petitioner namely, Javed Mustafa has impugned the judgment and decree dated 19-6-2008 passed by the learned Additional District, Judge-III, D.I.Khan whereby his appeal filed against the judgment and decree dated 22-11-2003 of the learned Senior Civil Judge, D.I.Khan was dismissed and the cross-objection filed by the respondent No. 1 against the findings of the learned court over issue No.3 was accepted.

2. Precisely stated facts of the case are that the respondent No.1 filed a suit against Dr. Sheikh Muhammad (deceased),the predecessor of the petitioner and respondents Nos.2 to 5 and the petitioner seeking declaration to the effect that she was owner in possession of a residential house situated at Basti Sheikhanwala, D.I. Khan, fully detailed in the heading of the plaint, wherein she alleged that the predecessor of the petitioner and respondents Nos.2 to 5 and the petitioner had no concern whatsoever with the same and that the registered gift-deed bearing No.1083 dated 30-9-1987 with regard to the disputed house allegedly executed by Dr. Sheikh Muhammad, the predecessor of the petitioner and the respondents Nos.2 to 5 in favour of the petitioner was wrong, based on mala fide against law and liable to cancellation and ineffective upon the rights of respondent No.1/plaintiff. As a consequential relief, she prayed for injunction directing the legal heirs of Dr. Sheikh Muhammad and petitioner Javed Mustafa to cancel the said document and restraining them from claiming ownership of the disputed house. As an alternate relief, she prayed for possession of her share in the disputed house through partition. Respondent No.1/plaintiff averred in her plaint that she was married in the year 1975 to Farooq Mustafa and at the time of nikah, the disputed house was given to her as dower and the said fact had been mentioned in the nkahnama; that at the time of nikah, the disputed house was occupied by a tenant and rent thereof was being paid to her according to her share in the disputed house; that Dr. Sheikh Muhammad, the predecessor of the petitioner and respondents Nos.2 to 5 filed ejectment petition against the tenant and the disputed house was got vacated; that later on the respondent No.1/plaintiff wanted to reconstruct the suit house in accordance with the site plan approved by the Municipal Committee but she came to know that the house in question along with her share therein had allegedly been gifted by Dr. Sheikh Muhammad to petitioner, Javed Mustafa by virtue of gift-deed dated 20-9-1987 which she challenged to be void, fraudulent and ineffective to the extent of her share.

3. The suit was contested by the petitioner and Dr. Sheikh Muhammad (deceased) by filing their written statement. The learned trial Court framed issues arising out of the divergent pleas raised by the parties in their pleadings. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of the learned counsel of the parties, the learned trial Court decreed the suit of the respondent, No.1/plaintiff vide judgment and decree dated 22-11-2003.

4. Feeling aggrieved of the judgment and decree of the learned trial Court, the petitioner filed appeal and the respondent No.1 also filed cross-objection with regard to issue No.5 and prayed that the disputed gift-deed No.1083 dated 30-9-1987 be declared as bogus, fictitious and liable to cancellation. After hearing arguments of the learned counsel for the parties, the learned Additional District Judge-IV. D.I.Khan vide judgment and decree dated 24-11-2004 dismissed the appeal filed by the petitioner and accepted the cross objection filed by the respondent No.l. Against the judgment and decree dated 24-11-2004, the petitioner filed revision petition before this court which was accepted vide judgment and decree dated 4-5-2011 and the case was remanded to the learned appellate court for decision afresh.

5. After remand of the case, the learned Additional District Judge-III, D.I.Khan heard the learned counsel for the parties and vide judgment and decree dated 19-6-2008, dismissed the appeal of the petitioner and accepted the cross objection of the respondent No.1, hence the instant revision petition by the petitioner/defendant No.2.

6. The learned counsel for the petitioner argued that both the courts below have erred factually and legally in decreeing the suit of the respondent No.1/ plaintiff as the judgments and decrees are the outcome of misreading and non-reading of evidence; that the respondent No.1/ plaintiff had based her claim to the suit house on the basis of nikahnama which was disputed by the petitioner as against the registered Gift-deed No.1083 dated 30-9-1987 in respect of the same house to which presumption of truth is attached; that from the preponderance of evidence, the respondent No.1 failed to prove her nikahnama as the same being a fictitious document should not have been relied upon by the courts below and moreover, the original nikahnama was not produced before the learned trial Judge; that the respondent No.1/plaintiff did not herself appear before the learned trial Court as her own witness in support of the nikahnama; that Dr. Sheikh Muhammad, predecessor- in-interest of the petitioner as well as the respondents Nos.2 to 5 had filed an eviction petition before the learned Rent Controller, D.I.Khan being owner/landlord of the disputed property in his personal capacity and certainly not through the respondent No.1 who claims the disputed house on the basis of nikahama dating back to the year 1975; that neither in the plaint nor in the alleged nikahnama, the area of the house in dispute has been mentioned but still the learned trial Court decreed the suit on the basis of the nikahnama treating the same as sacrosanct; that it is evident from the record that the possession of the disputed house all along remained with the petitioner after the execution of the registered gift deed in his favour by his father late Dr. Sheikh Muhammad and lastly prayed that on acceptance of the revision petition, the judgments and decrees of both the courts be set aside and the suit of the respondent No.1/plaintiff may be dismissed.

7. The learned counsel for the respondent No.1 on his turn supported the impugned judgments and decrees of both the courts below and argued on almost the same grounds as mentioned therein. He further argued that the learned appellate court on acceptance of the cross objections of the respondent No.1, rightly modified the findings of the learned lower court on issue No.5 by declaring the registered Gift-deed No.1083 dated 30-9-1987 to be fictitious, fraudulent and ineffective upon the rights of respondent No.1 and accordingly cancelled the same.

8. The learned counsel for the respondent No.2 namely, Salahuddin on his turn endorsed the arguments of learned counsel for the respondent No.1 and argued that the contents of the nikahanama on the basis of which the respondent No. 1 claimed the disputed house to be her ownership was proper in every respect and on the basis of the said document, the respondent No.1 namely, Mst. Tahira Nasreen became the owner of the disputed house.

9. Arguments heard and record perused.

10. The case in hand has a long and chequered history spread over two decades as initially the suit was instituted by the respondent No. 1/plaintiff way back on 21-6-1989 for declaration claiming ownership of the .disputed house detailed in the plaint and challenged the registered Gift-deed No.1083 attested on 30-9-1987 on behalf of Sheikh Muhammad (deceased) in favour of the petitioner/defendant No.2 as illegal, void, based on fraud, liable to cancellation and ineffective upon her rights. By way of consequential relief, she prayed for perpetual injunction that registered Deed No.1083 be cancelled to the extent of her share and that the petitioner/defendant No.2 be restrained from claiming the ownership of the house. In alternate, she prayed for partition of the disputed house through the construction of a wall in between. To this effect instituted a suit against the petitioner and late Dr. Sheikh Muhammad (predecessor of petitioner and the respondents Nos.2 to 5). Her contention was that she got married to Farooq Mustafa in 1975 and late Dr. Sheikh Muhammad by way of dower, gave the disputed house to her and that at the time of nikah, the house in question was occupied by a tenant, therefore, the rent was accordingly paid to her according to her, share in the suit house and it was after Dr. Sheikh Muhammad, the predecessor of petitioner and respondents Nos.2 to 5 filed an ejectment petition against the tenant and that the house was got vacated. When the respondent No.1 desired to reconstruct the house in accordance with the site plan approved by the Municipal Committee, it dawned on her that the house in question had allegedly been gifted by late Sheikh Muhammad to the petitioner through registered gift-deed dated 30-9-1987 and she accordingly approached the trial Judge through the suit for declaration etc.

11. The core and important issues which in the ultimate came for consideration before the learned trial Judgeas well as the learned appellate court were issues Nos.4 and 5 which are as below: (4) Whether the house in dispute was given to the plaintiff in lieu of dower? (5) Whether the registered Deed No.1083 dated 30-9-1987 is bogus, fictitious, collusive and ineffective upon the rights of the plaintiff?

12. In order to prove her claim, the respondent No.1/plaintiff examined five P.Ws. P.W. 1 is the statement of Secretary, Union Committee No.2, D.I.Khan who brought the original nikahnama, a copy of which was placed on file as Exh.P.W.1/1. The said P.W. was not cross-examined despite opportunity afforded to the petitioner and thus the objection of the petitioner that the original nikahnama was not produced by the respondent No.1, herself before the learned trial Court loses its weight. P.W.2 is the statement of Muhammad Aslam, registry moharrir who produced copy of Wasiqa No.1083 dated 30-9-1987. P.W.3 is the statement of Faqir Jamil Ahmad who affirmed the execution of the nikahnama and also having signed the same on behalf of the bridegroom. He also stated that the father of the present petitioner was very much present during the execution of the nikahnama and he had also signed the same and during that time it was also stated that Rs.10,000 was fixed as dower amount out of which Rs.5,000 would be payable on demand and in lieu of rest of Rs.5000, the suit house was given to the respondent lady. He was cross-examined but he stood his ground as far as the execution of nikahnama as well as the signature of late Sheikh Muhammad on the same. P.W.4 is the statement of Muhammad Aslam who stated to be a professor in the education department and appeared as special attorney on behalf of respondent No.l being her maternal uncle. He stated to be present in the marriage ceremony and that in lieu of dower amount, her father-in-law namely, Sheikh Muhammad had given the respondent No.1 his personal house situated at Basti Sheikhanwala near Zanana Hospital, D.I.Khan and that at the time of the execution of the nikahnama, respondent No.2 namely. Salahuddin objected to the same but his objection was turned down by his father that since the house belonged to him, therefore, he had the right to transfer the same in favour of the respondent No.l and the same was duly signed by Dr. Sheikh Muhammad. He also faced lengthy cross-examination but nothing favourable to the cause of the petitioner could be elicited from his mouth. Similarly, Muhammad Hameed Ahmad appeared before the learned trial Judge as P.W.5 and stated to be present during the nikah and marriage ceremony and affirmed the contents of nikahnama as well as the nikah. His cross-examination too, could be of no help to the petitioner. Thus the nikahnama with its contents stood proved.

13. Now coming to the version of the petitioner/defendant No.2 who claims the ownership of the disputed house on the basis of Gift-deed No.1083 dated 30-9-1987, in this respect he appeared before the learned trial Court as DW-l. He was bound under the law to prove the three requisites of a valid gift i.e. offer, acceptance and delivery of possession and that too, in a situation when the respondent No.1 had thrown a direct challenge to the gift-deed terming the same to be illegal, void, based on fraud and liable to cancellation. However, the petitioner during his long statement recorded before the learned trial Court did not prove the alleged gift-deed and the evidence so recorded by he himself as well as the other D. Ws. offered no support to him. One interesting feature of the case is that the father of the petitioner was a doctor by profession, but strangely enough his signature as appeared on the gift-deed is in Urdu. Moreover, it is also an admitted fact as amply borne out from the entire file that at the time of the alleged gift-deed, late Dr. Sheikh Muhammad was in the twilight of his life and instead of the gift-deed being witnessed and signed by some relatives of the petitioner, ironically enough, both the witnesses of the gift-deed namely, Syed Fayaz Hussain Shah (DW-2) and Muhammad Hassan (DW-3) were the bailiffs of the court of the learned civil judge. Though under the law there is no embargo on anyone to witness a particular document as its signatory, but given the history of the present case, the same per se casts doubt on the execution of the gift-deed as such. Salahuddin Mustafa, real brother of the petitioner who recorded his statement as DW-1 also caused immeasurable dent to the petitioner's version when he on the one hand supported the nikahnama of the respondent No.1 with its contents viz, the t disputed house and simultaneously launched a frontal attack on the alleged gift-deed by terming the same to be fake and bogus on which the signature of his father had been forged. Such being the case, I am of the considered view that the findings of the learned courts below are based on proper appreciation of facts and law and do not suffer from any illegality or material irregularity warranting interference by this court in exercise of its revisional jurisdiction.

14. The learned two courts below have recorded concurrent findings of facts in favour of the respondent No.1 which are based on sound appreciation of evidence available on the file. The same cannot be set at naught unless it is proved that the same are either perverse or erroneous in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din v. Malik Muhammad Ahdullala (PLD 1994 SC 291) and Muhammad Rasheed Ahmad v.