2006 PLP 50 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court, has been directed against the judgment, dated 6-11-1995 passed by a learned Single Judge of Peshawar High Court, Peshawar, in a civil revision arising out of a civil suit.

2. Abdul Sami, husband of Mst. Mustakhia, respondent herein, made a gift of his agricultural land in favour of his wife vide gift Mutations Nos.11552 and 11553 dated 2-5-1973. The appellants, after death of Abdul Sami, filed a civil suit seeking declaration that they being collaterals of Abdul Sami, who died issueless, were entitled to get share in the suit-land gift mutations were void and ineffective to their rights. The suit was contested by the respondent and was ultimately dismissed by the learned Senior Civil Judge, Swabi, vide judgment, dated 17-2-1992. The appeal filed by the appellants against the judgment and decree passed by the trial Court was also dismissed by an Additional District Judge, Swabi, vide judgment, dated 11-4-1994. The appellants invoking the revisional jurisdiction of the Peshawar High Court, assailed the correctness of concurrent findings of two Courts on the controversial question of facts and a learned Judge in Chambers of the Peshawar High Court, having made detailed scrutiny of the evidence brought by the parties on record dismissed the civil revision.

3. The validity of gift was questioned mainly on the ground that the donor was not in a position to make a gift as he was suffering from depression and obsessional neurosis and the mutation of gift was fake which would not create title in favour of respondent. The appellants pleaded that there was no evidence, oral or documentary in support of gift so much so, the transaction of gift was not incorporated in the Roznamcha of Patwari and donor was also not present at the time of attestation of mutation, therefore, no presumption in favour of existence of a valid gift could be raised and in any case, the gift of immovable property, without delivery of possession, would not be treated as a valid gift. The case of respondent, on the other hand was that donor was not suffering from any ailment rather being issueless, willingly gifted the land to his wife and the concurrent findings of the two Courts on the question of fact, were not suffering from any misreading or non-reading of evidence to be interfered.

4. The learned Judge in the High Court, having considered the matter in the light of evidence brought by the parties on record entirely adhering to the finding of the two Courts on the question of validity of gift did not consider it a fit case for interference in the revisional jurisdiction.

5. Leave was granted in the present appeal to consider the following questions:-- ".(i) Whether late Abdul Sami was of sound mind and could gift the land in favour of the donee and whether three essential conditions of gift were complied with? (ii) Whether the donee has proved the validity of the gift in her favour, for Gul Sultan the marginal witness of the disputed mutation (P.W.6) has denied the attestation of gift mutations in her favour? And (iii) Whether the High Court failed to exercise its revisional jurisdiction properly by misreading and non-reading of evidence?"

6. Learned counsel for the appellants has contended that the learned Judge in the High Court has failed to consider that the proposition raised in the civil revision relating to the validity of gift was a pure question of law the determination of which would not require reappraisal of evidence therefore, the dismissal of the revision petition without taking the notice of the defect of misreading of the evidence by the two Courts and drawing a wrong conclusion of the evidence as a result of which the appellants were deprived of their legitimate right of inheritance in the property of Abdul Sami deceased would be a serious jurisdictional error. Learned counsel forcefully argued that there was no convincing evidence in proof of the essential elements of offer and acceptance of gift and the delivery of possession and that in absence of such evidence, the gift would be void, therefore, no weight could be attached with the concurrent finding of the two Courts on the question of validity of gift, learned counsel in support of the above contention, has placed reliance on Muhammad Yaquoob through Legal Heirs v. Feroze Khan 2003 SCMR 41 and Muhammad Bukhsh v. Ellahi Bukhsh 2003 SCMR

386. We having gone through the above judgments find that the facts of the present case are entirely different to that of the above referred two cases. In the first case, it was held that the gift was not proved through cogent and convincing evidence whereas in the second case, validity of gift was doubted on the ground that it having been made at fage end of life of the donor i.e. only 14 days before his death, would not be considered genuine.

7. Learned counsel for the respondents on the other hand, has contended that in the present case, donor was issueless and there was no evidence on the record to show that appellants or any other member of the family of donor or his relative, during his life time rendered any service to him rather he and the, donee were entirely dependents of each other, therefore, in these circumstances, it was natural for the donor to make gift of his land to her wife due to the love and affection. Learned counsel forcefully argued that the appellants having the knowledge of the gift and its true character, did not challenge its genuineness and validity during the life time of donor and filed the suit only after his death to defeat the right of donee under the gift which was not filed in good faith and was hopelessly barred by time.

8. The gift mutation was attested by the Revenue Officer on 21-5-1973 at a public place and the appellants neither could bring any convincing and reliable evidence in proof of lack of knowledge nor have been able to establish the invalidity of gift, therefore, the genuineness of gift could not be doubted merely on the basis of oral assertion. The appellants also have not been able to offer any explanation that why they, during the life time of the donor, have not questioned the genuineness of the gift mutation before the Revenue Authorities or challenged the validity of gift before the Civil Court and filed the civil suit only after his death. Be that as it may, since the question of limitation was not pressed in the civil revision before the High Court, therefore, we without going into the said question, have found no substance in the assertion that appellants had no knowledge of the gift during the life time of donor., The contention that there was no evidence of offer and acceptance of gift and delivery of possession to constitute a valid gift, also has no substance as the learned counsel has not been able to satisfy us that the elements of offer and acceptance of gift or delivery of possession of land to establish a valid gift were missing in the present case. The donor and the donee being husband and wife were living together and the management of the agricultural land, subject-matter of gift, would certainly be under the control of the donor as the donee could not personally engaged herself in the cultivation of land but in law, she would be deemed to be in the possession of land under the gift. Learned counsel for the appellant without pointing out any misreading or non-reading of evidence by the Court of first instance or the Appellate Court, argued that in the present case a pure question of law relating to the validity of gift, was involved therefore, it was duty of the High Court to examine the correctness of concurrent findings of the two Courts on this question of law in exercise of its revisional jurisdiction. There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or. inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction.

9. The appellants having disputed the validity of gift, were under heavy burden to prove that gift was not genuine and valid or it was suffering from any other legal or factual defect or the concurrent finding of the Courts on the question of existence of a valid gift was the result of misreading or non-reading of evidence.

10. In the light of foregoing discussion, we find no substance in this appeal and same is accordingly dismissed. There will be no order as to costs. M.H./A-177/S???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.