2010 PLP 417 (CLC)

CH. NAEEM MASOOD, J.

This civil revision is directed against the judgment and decree dated 18-11-1990, passed by the learned Civil Judge, Vehari and further concurred by the learned Additional District Judge, Vehari vide his judgment and decree dated 16-5-1995.

2. The brief facts asserted in the plaint are that Muhammad Ishaque deceased husband of respondent No.1 was allotted a plot of 5 Marlas by Housing Committee Vehari and he constructed a house thereon Mst. Hanifan Bibi respondent No.1 filed a suit for declaration that her husband had gifted this plot to her through an agreement dated 27-11-1983 and ever-since she has been owner in possession of the said house after the death of Muhammad Ishaque the petitioners claimed that since Muhammad Ishaque was issueless, therefore, they were also entitled to inherit the property of Muhammad Ishaque as brother and sisters ultimately, respondent No.1 approached the Secretary, Housing and obtained an order dated 20-1-1986 that the plot was to be distributed amongst the heirs of deceased Muhammad Ishaque. This order was challenged in the suit. The petitioners/defendants contested the suit and on the pleadings of the parties, the following issues were framed:

(1) Whether Tamleeq, Deed dated 27-11-1983 was duly executed in favour of plaintiff? OPP (2) Whether the order of defendant No. dated 20-1-1986 is against law and facts? OPP (2-A) Whether the plaintiff has no cause of action to bring this suit? OPD (2-B) Whether the suit is not maintainable in its present form? OPD (2-C) Whether the plaintiff is estopped by her Act and conduct to bring the present suit? OPD (2-D) Whether the defendants are entitled to special costs under section 35-A C.P.C.? If so, to what extent? OPD (3) Relief.

3. The parties led their respective evidence. The learned trial Court after appraising the evidence, oral and documentary; decreed the suit vide judgment and decree dated 18-11-1990. It was assailed by the petitioners before the learned lower appellate Court, however, this time too, their appeal was dismissed vide judgment and decree dated 16-5-1995.

4. Learned counsel for the petitioners vehemently submits that the ingredients of gift are not complete in this case.

5. The moot point in the case is the gift deed Exh.P.1, coupled with ingredients of gift of offer, acceptance and delivery of possession. The testimony of the marginal witness Khadim Hussain P.W.2 read with the statement of Mst. Hanifan P. W.1 unequivocally proves that gift was made in favour of Mst. Hanifan. It was accepted by Mst. Hanifan. The possession was delivered to Mst. Hanifan. There is nothing in the cross examination to shake the testimony of these witnesses. Document P.1 is the pivotal point in this case. In the document it is clearly mentioned that Muhammad Ishaque the husband of Mst. Hanifan had gifted the house in question, against the dower of his wife. Thus, it was gifted-Bil-Ewaz. Though on the top of Exh.P/1, it is written an agreement. But it is settled principle of law that the document must be read as a whole. I am fortified on this point by the judgments of the Honourable Supreme Court reported in (i) Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 (ii) Rasheedur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418, (iii) Aurangzeb through Legal Representatives and others v. Muhammad Jafar and another 2007 SCMR

236. In State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 it was held as follows:

"Intention of the parties, ascertaining of--Principles

In order to resolve ambiguity and to ascertain the real intention of parties, resort has to be made to the corresponding preceding and/ or subsequent to the execution of the contract document, conduct of the parties and attending circumstance." Reading the document as a whole, nothing remains equivocal in it. The document as a whole establishes that it was a Hiba-bil-Ewan for all intents and purposes. It is also established on the record that respondent Mst. Hanifan remained in possession of the house in dispute throughout this period.

6. It has been held by the honourable apex Court in Barkat Ali through Legal Heirs and other v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 as follows:

"Gift

Necessary ingredients of a valid gift are, offer by the donor, acceptance by the donee and delivery of possession." Respondent No.1 has unshakenably established that the ingredients of gift were complete in this particular case and all the touchstones given by the honourable apex Court helped establish a complete gift in favour of respondent No.1.

7. Besides, no illegality or material irregularity has been demonstrated to have been committed in the concurrent findings of the learned lower Courts.

8. In sequel thereof, the revision petition is dismissed. H.B.T./M-842/L Petition dismissed.