2017 PLP 1488 (MLD)

MUHAMMAD YOUNIS THAHEEM, J.

Through this revision petition, petitioners have challenged the concurrent judgments and decrees dated 06.06.2013, passed by the learned Additional District Judge-I, Karak and judgment and decree dated 20.7.2012 of learned Civil Judge-III, Karak whereby the suit as well as appeal were dismissed.

2. Brief facts of the case are that basically petitioners Nos.1 and 2 instituted civil Suit No.51/1 by challenging gift mutation No.618 attested on 30.4.1998 regarding suit land situated in Mouza Dabali Tehsil and District Karak attested in favour Ghulam Muhammad son of Muhammad Ali, praying for declaratory decree that suit Gift mutation is ineffective upon the inheritance rights of plaintiffs and same mutation is fraudulent, void and ineffective upon the inheritance right of plaintiffs and are entitled for Decree of their shari shares.

3. Upon this the defendants were summoned and among them defendants Nos.2 and 3 were transposed as plaintiffs Nos.3 and 4 vide order sheet dated 10.12.2010 and afterward contesting defendant No.1 submitted his written statement raising various pleas by narrating that gift was made by his father in lieu of love and suit of plaintiffs is baseless and same gift was in their knowledge and be dismissed.

4. The learned trial Court in the light of divergent pleadings of the parties framed following issues. ISSUES.

1. Whether the plaintiffs are having the cause of action?

2. Whether the plaintiffs are stopped to sue?

3. Whether the suit is time barred?

4. Whether the gift mutation No.618 dated 30.4.1998 attested by deceased Muhammad Ali in favour of the defendant No.1 is liable to cancellation.?

5. Whether the defendant No.1 is in possession of the suit property?

6. Whether the plaintiffs are entitled to the decree as prayed for?

7. Relief. The parties in the light of their respective pleas led evidence and after conclusion of trial learned trial Court dismissed the suit vide his judgment and decree dated 20.7.2010.

5. Feeling dis-satisfied from the judgment and decree of the learned trial Court dated 20/7/2010 the present petitioners/ plaintiffs file Regular Civil Appeal before the learned District Judge, Karak on 13.9.2012. The same appeal was entrusted to the learned Additional District Judge-I, Karak for disposal and the same was also dismissed vide impugned judgment and decree dated 03.06.2013.

6. Feeling aggrieved from the concurrent findings of fora below the present petitioners filed this revision petition by challenging both the judgments and decrees of two Courts below by raising different grounds therein.

7. Before this Court both the learned counsel for the parties argued their case at length and with their valuable assistance record perused.

8. From the perusal of record and arguments advanced by both the learned counsel for the parties it is admitted fact that the predecessor of the parties Mohammad Ali solemnized two marriages. From the one wife he had one son Ghulam Muhammad and one daughter Mst. Solojani and from the other wife he has two sons Tariq Mahmood Abid and Maeenullah Khan brothers and two daughters Mst. Nasar Khela and Mst. Khushal Begum. So the parties are step brothers and sisters inter se. It is admitted fact that the alleged donor till his death resided together with his family i.e., the parties.

9. The copy of suit Gift mutation is placed on record as Ex.PW.2/1 bearing No.618 attested on 30.4.1998 which is verified by two Lambardars, i.e. one Allah Noor (DW-1) who is not Lambardar of same Estate and is Lambardar of Mouza Tappi. He appeared as DW-1 and during cross-examination deposed that the lambardars of mauza Kanda are Nawab Khan and Malik Karim. The perusal of suit mutation shows that it bears no thumb impression, or signature of donee and the verifying witness does not belong to estates of suit land rather DW-1 admitted that he did not know the other sons of deceased Mohammad Ali at that time.

10. Patwari Halqa appeared as PW-1 and produced Rapat bearing No.316 dated 29.4.1998 which is Ex.PW1/1. Rapat No.316 is thumb impressed by alleged donor Muhammad Ali while it also bears the thumb impression of Shoukat Ali. This Rapat is thumb impressed only by one witness and there is no proof on record that these thumb impressions on Rapat were put by alleged donor and Shoukat Ali. This Rapat depicts further that it bears no NIC number, and signature of Girdawar Circle and endorsement of revenue officer concerned. Moreover this Rapat also transpires that important ingredient of gift with regard to offer, acceptance and specially the important ingredient of delivery of possession are not mentioned and specified Parcha Girdawari to show delivery of possession in consequence of alleged gift is not available on record. So such entry in Rapat cannot be relied upon and is not sufficient and reliable proof of Gift transaction.

11. The donee/defendant being beneficiary of alleged gift mutation was legally bound to have expressly pleaded that when, where and in whose presence his father offered him the transfer of the suit land by way of gift and had independent advice at that time and respondent No.1 (donee ) has accepted his offer in presence of witnesses and afterward in consequence of said offer and acceptance, possession was specifically delivered to him of the gifted suit land.

12. Ghulam Muhammad respondent No.1 in his written statement and during deposition as DW-2 did not utter a single word that said land was transferred to him through gift transaction and had not stated the time, date or place with regard to offer, acceptance and delivery of possession. So it is proved that to deprive his step brothers and sisters impugned gift mutation has been attested. In this respect case cited as "Muhammad Asghar and others v. Hakam Bibi through L.Rs. and others" (2015 CLC 719(Lahore)) is referred. Relevant para reads as follows:-- "In this regard it is important to note that no time, date or place with regard to the offer of gift, its acceptance or delivery of possession is mentioned in the written statement or in the testimony of the said witness even in Rapt Roznamcha Waqiati (Exh.D-1) there is no mention about any date of offer of gift its acceptance or delivery of possession by the donor to the donee."

13. The burden of proof was upon donee to prove these important ingredients vis-a-vis independent advice at the time of alleged transaction of Gift which he failed to discharge.

14. Moreover the donor took altogether different stance during recording of his statement as DW-2 by deposing that the suit land was purchased by his father/donor by his money i.e. consideration amount was paid by him, this stance/plea is not mentioned in the written statement and it is settled law that no one can blow hot and cold in the same breath and cannot travel beyond the scope of his pleadings. So this plea is afterthought, improvement and is self destructing. DW-2 also produced one Salsi Faisala which is not signed by the parties so is not worth consideration and could not be relied upon and conclusion would be that no valid gift has been proved and the learned two Courts below have not adverted to this aspect of the case and failed to appreciate the evidence on record in its true legal perspective. Reliance is placed on judgment of Honble Supreme Court in case titled "Khushi Muhammad v. Liauqat Ali" (PLD 2002 SC 581) about conflicting pleas and "Mst. Kalsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135) about burden of proof so the relevant paras Nos.9 and 10 of same judgments are reproduced as below:-- Para No. 9. "It is a matter of record that the deed as such is challenged on grounds of conspiracy, fakeness and forgery amounting to fraud. In these circumstances, the beneficiary under the document is bound not only to prove the execution of document but also to prove the actual factum of gift by falling back on the three ingredients of proposal, acceptance and delivery of possession. These have to be proved independent of the document. This Court has quite recently held in case of Ghulam Haider 2003 SCMR 1829 that essentials of a valid gift were required to be proved independent of the deed even if it was registered, in case it is challenged on grounds of forgery etc. Keeping in view the principle so enunciated, we are clear in our mind that the defendants have not produced an iota of evidence to prove the original factum of gift; the proposal, the acceptance and the delivery of possession. We have already discussed that the possession under the gift has not been delivered at all. The gift can be declared void on this score alone and as well. Para No.10. In the instant case it is a gift which tantamounts to disinheriting the closest of the legal heirs or, even if genuine, it otherwise practically disinherits the legal heirs. In such given circumstances, when, through a gift, deprivation of legal heirs is involved, either intended or unintended, the burden to prove original transaction of gift with all its ingredients strongly rests, upon the beneficiaries of such gift. This Court, in similar circumstances, had nullified a transaction of gift in case of Muhammad Ashraf 1989 SCMR 1390, where the question arose as to why in the presence of legal heirs, particularly the children, the donor would have gifted out the entire land to a nephew. Quite recently in case of Barkat Ali 2002 SCMR 1938 this Court once again reiterated such principle holding that in cases of gifts, resulting into disinheriting of the legal heirs, the burden to prove original transaction of gift squarely rests upon the donees. Such burden has not been touched at all, much less proved."

15. In this case the learned two Courts below had not appreciated the evidence properly in their true legal perspective with due care and caution and are the result of misreading and non-reading of evidence, so are not sacrosanct and are set aside and suit of the petitioners/plaintiffs is decreed in their favour as prayed for with no order as to costs. ZC/66/P Revision allowed.