2010 PLP 1663 (YLR)

SHER MUHAMMAD KHAN, J.--The petitioner has impugned the judgment/ decree passed by learned Additional District Judge-IV, Mardan on 8-10-2008 vide which appeal against the judgment/ decree passed by learned Civil Judge-X, Mardan dated 8-12-2005 was upheld.

2. Brief facts of the controversy between the parties are that petitioner and respondents are brothers and sisters inter se. The petitioner filed suit for possession in respect of constructed house fully described in the heading of the plaint through measurement and boundaries. His claim is based on gift deed No.522 attested on 5-11-1992. The respondents contested the suit by filing written statement. The learned Civil Judge after recording pro and contra evidence of the parties dismissed the suit on 8-12-2005. Not satisfied with the above mentioned judgment and decree, petitioner filed appeal before the learned District Judge Mardan, which was entrusted to learned Additional District Judge-IV iv,ardan, who too, dismissed the appeal on 8-10-2008.

3. Learned counsel for the petitioner vehemently argued that the petitioner is owner in possession of the disputed house on the strength of the gift deed No.522 attested on 5-11-1992. Perusal of the gift deed reveals that allegedly it has been executed by father of the petitioner in respect of 3 Marla open land without any construction. Petitioner did not produce any mason, labour carpenter or contractor to prove construction of the house by him. Even the area mentioned in the deed is disputed. According to the statement of Patwari Halqa the area of the disputed house is 2 Marlas, in the gift deed, it has been mentioned as 3 Marlas and per statement of Haji Kaifoor, real uncle of the parties, the land of the disputed house, is 5 Marlas which has been sold by him to his brother Saifoor, predecessor-in-interest of the parties. Petitioner also failed to prove that when and how respondents took possession of the house from him. Filing suit for possession by itself is sufficient to prove that petitioner was not in possession of the disputed house, which is one of the important ingredient for validity of gift. To deprive the respondents from their share in inheritance, petitioner has somehow succeeded in obtaining the gift deed, which was never acted upon during life time of their predecessor. It is also admitted by petitioner in his evidence that at the time of execution of the gift deed his father was sick which factor must also be considered because a person lying on death bed is incompetent to execute gift deed, moreso, when he is under the influence of the persons residing with him. In such like situation also, the gift deed even if executed by the donor is void.

4. For the reasons mentioned above, the judgments and decrees of the learned Courts below are perfectly correct, therefore, maintained and this revision petition is dismissed with no order as to costs. H.B.T. / 135/P Petition dismissed.