1983 PLP 8 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑Muhammad Azmim petitioner seeks Leave to Appeal against the judgment of a learned Single Judge of the Lahore High Court dated 6‑12‑1980, accepting the respondents' revision petition.

2. The facts giving rise to the present petition, briefly, are as follows:- It is alleged that Muhammad Yousaf and Mahmood Shaukat (respon dents No. 1 and 2 in the present petition) filed a suit on the basis of a gift allegedly made by Muhammad Siddiq (their father) in respect of the suit property consisting of 6 shops and residential portions over them by a registered deed dated 27‑3‑1958, in favour of the petitioner as well as respon dents 1 and

2. All the three brothers were living in the residential portions over three of the shops. It appears that. Muhammad Siddiq fell out with the petitioner and subsequently made another gift in favour of Muhammad Yousaf and Mahmood Shaukat respondents by a registered deed dated 21‑3‑1970. Yousaf and Shaukat respondents filed a suit against Muhammad Azmim for possession of the portion of the suit property in which he was residing. They also impleaded Muhammad Siddiq (their father) as a codefendant. As many as 11 issues were struck. The suit was dismissed by the learned trial Judge and it was held, inter alia, that the gift made by Muhammad Siddiq in 1958 was valid. The respondents went up in appeal before the learned District Judge who by his judgment dated 6‑5‑1979 accepted it and set aside the decree holding that the original gift deed relating to the gift said to have been made in 1958 had not been produced and instead, a copy thereof has been produced, and as such, the factum of that (1958) gift was not legally proved. As to the subsequent gift made in 1970 he held separately that the mode of proof was not legal inasmuch as the donor was not conformed with the alleged registered deed pertaining to the said gift and secondly, because it was not proved by delivery of possession of the property in question. The respondents then filed a revision before the High Court which revers ed the finding of the learned District Judge with regard to the mode of proof of the second gift and also held that the gift had been completed by delivery of the possession of the suit property. It was urged by the petitioner's counsel before the High Court that no issue had been framed with regard to the validity of the second gift made in 1970 and the case should, therefore, be remanded, but the learned Court brushed aside the contention that it was not necessary to remand the case for this purpose as the appellate Court could itself decide the question on the basis of the evidence on the record. Hence the present petition.

3. It was urged by the learned counsel for the petitioner before us, firstly, that the learned High Court had erred in reversing the concurrent finding of fact given by the two courts below namely, the learned Civil Judge and the learned District Judge, that Muhammad Siddiq had not delivered possession of the suit property for the second gift purported to have been made in 1970. In support of this contention he adverted our attention to the observation of the learned trial Judge at pages 42 and 43 and those of the learned District Judge at page 34, made while deciding Issue No.

8. The counsel urged secondly that although the decision of Issue No. 8 depended on the validity of the gift allegedly made in 1970, yet no specific issue was framed on that question. He submitted that this deprived the petitioners of the opportunity to produce evidence to challenge the validity of the second gift and thus seriously prejudiced their case at the trial. There is substance is this contention. Leave is granted to consider the aforementioned question. Security in the sum of Rs. 2,

500. Status quo to be maintained in the meanwhile. Leave granted.