2018 PLP 1090 (MLD)

ATIR MAHMOOD, J.

This civil revision is directed against the judgment and decree dated 12.01.2011 passed by learned Additional District Judge, Sheikhupura, who dismissed appeal of the petitioners which was filed against the judgment and decree dated 20.05.1993 passed by the learned Civil Judge, Sheikhupura whereby the suit filed by the petitioners-plaintiffs was also dismissed.

2. Brief facts of the case are that the petitioners-plaintiffs and respondent No.7 filed a suit for declaration against the respondents-defendants with the averments that the gift deed dated 30.11.1981 registered on the same date vide document No. 8168, Bahi No.1 Jild No. 603, on pages 268/271 is illegal, void, inoperative and ineffective upon the rights of the plaintiffs along with consequential relief of possession through partition of land measuring 348-Kanals 16 Marlas, bearing Khewat No. 10/9-Min, Khatooni No. 32, the detail of which has been given in the head-note of the plaint. Apart from above, in the plaint, the petitioners-plaintiffs claimed their exclusive ownership over another land measuring 413 kanals 3 marlas on the basis of sale deed allegedly executed by their predecessor Ghulam Muhammad (deceased) in favour of the petitioners. The respondent No.1 contested the suit by filing his written statement denying all the averments of the plaint, protected his rights over the land allegedly gifted in his favour and also denied the execution of the sale deed regarding the suit land measuring 413 kanals 3 marlas in favour of the plaintiffs. The learned trial court framed the following issues:-- (1) Whether the proper court fee has not been affixed on the plaint, if not what is the correct value for the purpose of court fee and jurisdiction? OPD (2) Whether the court has no jurisdiction to adjudicate the case? OPD. (3) Whether the suit is barred by time? OPD (4) Whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD. (5) Whether the suit has been filed maliciously with mala fide intention to harass the defendant? OPD (6) Whether the suit is not maintainable in its present form? OPD (7) Whether the plaintiffs are entitled to share the property in dispute, as owner, if so, to what extent? OPD (8) Whether the gift deed dated 30.11.81 is illegal, inoperative and ineffective on the right of the plaintiffs? OPD (9) Whether the gift deed in dispute was executed during Marzul Maut? OPD 2 to 6 (10) Whether the defendants Nos.2 to 6 are entitled to their share in disputed property? OPD 2 to 6 (11) Whether the plaintiffs and the defendant No.1 has not come to the court with clean hand? OPD 2 to 6. (12) Relief.

3. After framing the issues, the evidence of the parties was invited. After recording the evidence, the case was fixed for arguments and in the meanwhile respondents Nos. 2 to 6 filed an application under Order I Rule 10, C.P.C. on the ground that they were the heirs of predeceased son of the original owner of the land namely Ghulam Muhammad Bhutta. The said application was allowed by the learned trial court vide order dated 12.1.1992. Thereafter, respondents Nos. 2 to 6 also filed their written statements and stated that both the transactions i.e. gift deed and sale deed were executed during Marz-ul-Mout. Thereafter, the learned trial court framed further three issues. After recording the evidence and hearing the arguments of both side, the learned trial court dismissed the suit of the petitioners-plaintiffs and respondent No.7 vide judgment and decree dated 20.05.1993. Feeling aggrieved from the judgment and decree, the petitioners-plaintiffs filed an appeal before the learned appellate court and vide judgment dated 22.10.1996 the learned appellate court framed the following issue:-- "Whether the sale deed regarding suit land measuring 413 kanals 3 marlas in favour of the plaintiffs is without consideration, result of fraud and executed during Marzul Maut, if so, its effect? OPD" and referred the matter to the learned trial court with the direction to take additional evidence and to proceed to decide the issue and then to return the file along with the evidence to the appellate court. Thereafter, the learned trial court recorded the evidence on the additional issue and decided in favour of the respondents-defendants vide judgment dated 03.4.2002 and sent the findings to the learned appellate court. The learned appellate court after hearing the parties, dismissed the appeal of the petitioners and upheld the findings of the learned trial court vide impugned judgment and decree dated 12.01.2011. Hence this civil revision.

4. Learned counsel for the petitioners contends that the findings of the learned courts below on issues Nos. 7 and 8 are erroneous in nature as those are result of misreading and non-reading of evidence; that the alleged donor i.e. Ghulam Muhammad (deceased) during his life time showed his intention to challenge the alleged gift, therefore, his successor has every right to challenge the validity of gift; that the disputed gift in favour of the respondents was not with free will of the donor rather it was under compulsion and domination of respondent No.1. He further argued that the findings of the learned courts below on additional issue are also unwarranted in law as the sale deed was not challenged by any of the respondents independently; that the initial burden to prove that the sale deed in favour of the petitioners was result of fraud, was upon the respondents Nos. 2 to 6, who failed to lead the evidence in affirmative, therefore, any evidence produced by respondent No.1, who did not challenge the sale deed, cannot be used against the petitioners. He relied upon the cases reported as Ashiq Hussain and another v. Ashiq Ali (1972 SCMR 50), Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCMR 1403), Rab Nawaz and others v. Ghulam Rasul (2014 SCMR 1181), Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another (PLD 1983 Supreme Court 5) and Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others (PLD 2004 Karachi 492).

5. On the other hand, learned counsel for the respondents supported the judgments of the learned courts below relying upon the judgments reported as Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company (1992 SCMR 2375) and Industrial Development Bank of Pakistan v. Messrs Naqi Beverages (Pvt.) Ltd. and 7 others (2002 CLD 712).

6. Arguments heard. Record perused.

7. The points for consideration before this Court are the following:-- (i) As to whether, the gift deed dated 30.11.1981 in favour of the respondent No.1 was illegal, inoperative and ineffective upon the rights of the petitioners and (ii) As to whether, the sale deed in favour of the petitioners qua the land measuring 413 kanals 3 marlas was validly made and cannot be set-aside by the courts below.

8. There is not denial to the pedigree table as the parties to the suit are admittedly the descendants of the deceased Ghulam Muhammad (hereinafter referred as deceased). The case of the petitioners qua the disputed gift is that the respondent No.1 was dominating the deceased as he was residing with him. According to the contents of the plaint, the deceased was being administered certain medicines causing sedation to the deceased and under the such health condition, the respondent No.1 maneuvered to get the signatures and thumb impressions upon the gift deed.

9. In order to discharge the initial burden to prove issues Nos. 7 and 8, PW1 Rasool Bakhsh deposed in his examination-in-chief that Ghulam Muhammad was his maternal uncle who remained seriously ill and he was taken to Mouza Nokarian, District Sheikhupura by the defendants where he remained under medication and was not in his senses; that Ghulam Muhammad remained with the defendants from 1980 to 1984 and did not come to Lahore; that in the year 1984, the plaintiffs brought their father Ghulam Muhammad to Lahore and started his treatment and Ghulam Muhammad became absolutely healthy and then it transpired the alleged gift was made and despite holding of a panchayat, the defendants refused to get the cancellation of the gift. In cross-examination, he stated that in the panchayat there were Chaudhry Atta, Muhammad Tufail and Zia etc. He admitted that after the panchayat, the plaintiffs did not proceed against respondent No.1. PW2 Muhammad Yaqoob, PW3 Haider Ali Siddiqui tried to corroborate the statement of PW1 in most similar words. PW2 in his examination-in-chief stated that he was present in the panchayat; he admitted that in his presence, the plaintiffs never called any doctor in village nokarian. He further stated that 4/5 months after going to Lahore deceased Ghulam Muhammad become healthy and then he told about the gift. This witness stated that Ghulam Muhammad remained alive for about year and a half but no legal proceedings were initiated by him. This witness (PW2) though stated that he was present in the panchayat but he did not mention the name of any other person associated in the alleged panchayat whereas PW1 did not mention that Muhammad Yaqoob (PW2) was associating in the panchayat proceedings. PW3 admitted that he was not part of the panchayat proceedings. PW4 Muhammad Mushtaq (the original plaintiff No. l) appeared in the witness box and deposed that his father remained in village Nokarian for 7/8 years along with the defendants where he remained in sedation due to the medication and in the same period, the alleged gift was executed. He stated that a panchayat took place, wherein the defendants conceded to get the cancellation of gift but thereafter he resiled. The statement of this witness is contradictory to the statements of PW1 to PW3 as none of the PWS (allegedly part of the panchayat proceedings) stated that the defendants ever conceded to get the cancellation of the gift deed. In cross-examination, PW4 stated that he used to come to village Nokarian to see his father after every 15 days. He also stated that he was being accompanied by his friends. He stated that he himself never got medical check-up of his father by any doctor. He stated that in the year 1984, he took his father along with him and then he was treated by Pro: Dr. Akhtar. He stated that he could not tell, as to whether, Dr. Akhtar is alive or not. He stated that the sale deed in his favour was executed after about 10/11 months of shifting his father from village nokarian. He further admitted that his father remained alive for 5/6 months after attestation of sale deed. He admitted that during the stay of his father at village nokarian along with the defendants, he never filed any application before any competent officer qua the mental health of the father.

10. In rebuttal, DW1 Muhammad Ishaq deposed in his examination-in-chief that Ghulam Muhammad was his real maternal uncle, who died in the year 1985. He deposed that Ghulam Muhammad was mentally and physically hale and healthy and in the year 1981 gifted 45 acres of land in favour of his son Jamil in consideration of his services to look-after him. Despite lengthy cross-examination, nothing detrimental to the rights of the defendants was brought on the record. DW2 Ghulam Mustafa, Lamberdar of village Nokarian deposed that he was told by Ghulam Muhammad that he has gifted his land on the eastern side in favour of Jamil defendant which was being cultivated by Muhammad Sharif tenant and the tenants were directed to pay the share in the produce to Jamil. He specifically denied that Ghulam Muhammad remained under sedation while his stay in village Nokarian. DW3 Muhammad Mukhtar deposed that Ghulam Muhammad was mentally hale and healthy; that Ghulam Muhammad 3/4 times talked about gifting the property to Jamil, defendant and about 9 years ago vide Exh.D1, the property was gifted to Jamil. He stated that he signed the Exh.D1 as attesting witness and Ghulam Muhammad made his signature in English on the gift deed. He further deposed that Ghulam Muhammad admitted that possession of the property was also handed-over to Jamil defendant. In cross-examination certain suggestions were made which are reproduced as under:-- DW4 Muhammad Sharif is the other attesting witness of Exh.D1, who deposed that he is the tenant of Ghulam Muhammad and thumb marked as Exh.D1 after the signatures were made by Ghulam Muhammad. He deposed that Ghulam Muhammad was mentally and physically fit. He further deposed that Ghulam Muhammad specifically asked him to give the share of produce ( ) to Jamil, defendant and since then the produce is being given to the defendants. In cross-examination, he stated that stamp paper of gift deed was purchased by Jamil. He denied the suggestion that they have fraudulently prepared the gift deed in connivance with Jamil and Mukhtar. He denied the suggestion that the mental health of Ghulam Muhammad got deteriorated. He also denied that the brain of Ghulam Muhammad was intoxicated by injections and medicines. DW5 Muhammad Jamil/defendant deposed that on 30.11.1981 his father gifted away 350 kanals of land in his favour, which was accepted by him and possession was also delivered to him. He deposed that hibanama (Exh.D1) was prepared in the courts and was duly registered. He stated that his father was an illiterate person and after reading and understanding the contents of Hibanama, he signed the same in English and urdu.

11. A lengthy cross-examination was conducted. He denied that his father asked him to get cancel the gift deed. He also denied that some panchayat took place. He also denied that in any such panchayat Rasool Bakhsh and Yaqoob used to appear. He also denied that Haider Ali Siddiqui also came in the village with respect to panchayat.

12. In view of the above evidence the execution of gift deed in favour of the defendants become established. It is obvious that a beneficiary of the document is to prove its execution but when the same is challenged on account of some fraud and forgery then the initial burden to prove such fraud and forgery or misrepresentation rests upon the party who alleges as such. The petitioners could not prove through any cogent evidence that the deceased Ghulam Muhammad was under any mental disability at the time of execution of gift deed. PWs produced by the petitioners made contradictory statements on points but none of them could prove that Ghulam Muhammad was under any mental disability. The petitioners failed to produce any doctor, who treated deceased Ghulam Muhammad nor any medical record, whatsoever, was produced rather there is no attempt on behalf of the petitioners to produce any such medical evidence. On the other hand, Exh.D1 was duly proved through production of marginal witnesses. The emphasis of the learned counsel for the petitioners was that Exh.D1 did not confer any right in favour of the defendants as the transaction of gift was to be proved independently. He stressed that gift was oral which was not proved by the defendants through any oral evidence and any subsequent transaction i.e. Exh.D1 is of no avail. This contention of the learned counsel for the petitioners is unfounded. It is not the case of the defendants that property was initially gifted through any oral gift. His case is that property was gifted to him vide Exh.D

1. The contents of Exh.D1 fully support the version of the defendants. Relevant portion of Exh.D1 is reproduced as under:-- (Underline is mine)

13. In view of the above evidence, the case law relied upon by the learned counsel for the petitioners is quite distinguishable and not attracted in the present case, therefore, the findings of the learned courts below on issues Nos. 7 and 8 are unexceptionable and did not suffer from any illegality and the same are upheld.

14. With regard to the other point for consideration whereby the learned courts below have decided the additional issues against the petitioners, it is observed that the learned appellate court while framing the additional issue erred in law as no additional issue could be framed. A set-off can only be claimed by a defendant when the same comes within the provisions of Order VIII, Rule 6 of C.P.C. The relevant provision is reproduced as under:-- "Particulars of set-off to be given in written statement.

(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sough to be set-off." (Emphasis provided) There is no other provision to claim any set-off in the entire civil procedure code. In order to claim a set-off, it is mandatory that the suit must be for recovery of money. The present case filed by the petitioners was for cancellation of a registered gift deed in favour of the defendants and if the defendants was aggrieved from any sale deed in favour of the petitioners, the only remedy available to him was to file a suit for cancellation of the sale deed. In this case, the defendant No.1 despite having knowledge of the sale deed in favour of the petitioners did not file any suit but asserted in his written statement that he reserves his right to challenge the sale deed of the petitioners but the said right was never exercised. Respondents Nos. 2 to 6 became a party to the proceedings after acceptance of their application under Order I Rule 10 of C.P.C., while filing their written statement challenge the sale deed of the petitioners not independently but as a counter claim/alleged set-off but surprisingly they failed to lead any evidence in order to discharge the initial onus to prove the additional issue. In this regard, any evidence led by the petitioner No.1, contrary to its own pleadings, could not be read in evidence.

15. In view of the above discussion, framing of additional issue was void ab initio, therefore, any finding there-upon is of no legal effect, therefore, findings of the courts below on additional issue are set-aside. Resultantly, this revision petition is partly allowed to the extent of additional issue and is dismissed to the extent of remaining issues and judgments and decrees passed by the courts below to that extent are upheld. ZC/M-49/L Order accordingly.