2012 PLP 1333 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein, being plaintiff of a suit for declaration, feeling himself aggrieved of the concurrent findings of the two courts below, hereby his suit for declaration against respondent was dismissed by the Civil Judge/Illaqa Qazi- VI, Swat, vide his judgment and decree dated 31-3-2004 and his appeal thereagainst also met the same fate when the learned Additional District Judge/Izafi Zila Qazi, Swat dismissed his appeal, vide judgment and decree dated 5-6-2004, has filed instant revision petition.

2. The brief but the material facts of the case are that Bashi Khan, the predecessor of respondents Nos.2 to 4, Asmat Ullah Khan and Sharif Khan were the three brothers and joint owners of the landed property, situated in village Ghaligai, Tehsil Barikot, District Swat. Bashi Khan had three daughters i.e., respondents 2 to

4. The plaintiff/petitioner Nijat Ali son of Inayat Ullah Khan filed the instant suit by claiming himself to be the owner of seven "Tora daftar" on the strength of a gift made by Bashi Khan in his favour, by further alleging that possession of the property was also delivered to him. After some time, he went abroad in connection with earning his livelihood and the gifted property was handed over to his father i.e., respondent No.5, but when he returned back, he came to know that the defendants Nos.1 to 4 after the death of Bashi Khan by taking undue advantage of his absence, transferred the suit property in their names during the settlement proceedings.

3. The claim of the petitioner was denied by respondents Nos.2 to 4, the daughter of Bashi Khan, by submitting their joint written statement on 12-7-1999 by claiming that their father Bashi Khan had gifted his entire property through a registered deed in their favour and submitted that the alleged gift of the petitioner is wrong, fraudulent and unlawful. The daughter of the deceased respondent No.1, namely Socha Bibi also filed her written statement and denied the factum of both the gifts and claimed that her father being real brother of Bashi Khan is one of the legal heirs of Bashi Khan and entitled to his sharai share in the legacy of his brother Bashi Khan as he had no male issue.

4. The trial court after recording the evidence of both the parties dismissed the suit of the plaintiff/petitioner which was also upheld by the appellate court.

5. Learned counsel for the petitioner submitted that the findings of the two courts below are not only against the law but also based on misreading and non-reading of the material evidence on the record which has resulted into miscarriage of justice. He next contended that the plaintiff/petitioner produced sufficient evidence and proved on the record the gift in his favour by producing the marginal witness of the gift deed dated 28-12-1983, namely Muhammad Zaib as P.W.-2 and one Khurshid as P.W.-3, who is the scriber of the said deed, so, the courts below have fallen into an error of law and facts by dismissing the suit of the plaintiff/petitioner.

6. As against that the learned counsel for legal heirs of respondent No.1 and other respondents submitted that the suit property was rightly devolved upon their predecessor, namely Sharif Khan and the daughters of the Bashi Khan, deceased owner. They next contended that it is an admitted fact that the grandfather of the plaintiff/petitioner, namely Asmat Ullah Khan had died prior to his brother, namely Bashi Khan, so, he was not entitled to inherit the legacy of his brother Bashi Khan. They next submitted that the two courts below while properly appreciating the evidence on record have rightly dismissed the suit of the plaintiff/ petitioner and being concurrent findings of the two courts below, the question of fact alone cannot be interfered with in exercise of revisional jurisdiction of this court.

7. Learned counsel for the parties were heard and record of the case was perused.

8. Perusal of the record would reveal that it is an admitted fact that the original owner of the suit property, namely Bashi Khan had only three daughters and no male issue. The counter-claim of gift of the daughter of said Bashi Khan was also declared null and void by the competent court of law in a civil suit filed by Bashi Khan through his attorney namely Inayat Ullah, the father of plaintiff/petitioner which attained finality between the parties. Now, the only question before this court would be regarding scrutiny of the alleged gift deed in favour of the plaintiff/petitioner. It is strange enough to observe that the plaintiff himself alleged to be the owner of suit property on the basis of gift made in his favour by Bashi Khan but he does not refer to any details of the said gift as to when and where it was made. Similarly, the evidence on record produced by the plaintiff/petitioner is also deficient to prove it to be a true and genuine gift in his favour, though, the petitioner produced one of the marginal witnesses of the said deed and scribe of the deed but this very evidence was not sufficient enough to discharge his burden to prove the genuineness of the gift. No doubt, any oral gift made by a Muslim is valid but when a deed in this regard is executed then the same requires compulsory registration and in this regard reliance can also be placed on the case of Muhammad Ijaz and others v. Khalida Awan and another reported in 2010 SCMR

342. Mere proof of execution of deed, in the circumstance, would not be sufficient to discharge the burden of proof as a beneficiary of the deed unless the contents/transaction embodied in the deed is proved through cogent and trustworthy evidence. The basic ingredients of a genuine gift like offer, acceptance and delivery of possession of the property under gift is required to be proved by the donee. The learned counsel for the petitioner also produced the original gift deed for the perusal of the court and copy of which is also available on the file as Exh.P.W.1/1. It is strange enough that this deed was for the first time referred to at the time of filing of instant suit on 28-5-1996. Prior to this father of the petitioner Inayat Ullah Khan, the nephew of Bashi Khan, had also instituted a suit for declaration by claiming certain piece of land to have been purchased from Bashi Khan and in the remaining has claimed his sharai share. This suit too, does not refer to the impugned gift deed. The daughters of the Bashi Khan had also filed suits against the father of petitioner, who was their first cousin. But in reply to those suits reference of this gift is not there. So, such type of gift deed would not be sufficient to be relied upon by ignoring the real heirs.

9. Being concurrent findings of the two Courts below on facts, cannot be interfered with by this Court in exercise of its revisional jurisdiction when there is no misreading or non-reading of material available on the record and this Court cannot substitute the findings of the two courts below with that of its own. So, what has been discussed above, this revision petition, being meritless, is dismissed as such. K.M.Z./147/P Revision dismissed.