2005 PLP 2529 (YLR)

Revisinal jurisdiction of this Court has been invoked to set aside the judgment and decree dated 26-7-2004 pronounced by the learned Civil Judge, Gujrat and that of the learned District Judge, Gujrat dated 25-2-2005, who dismissed the appeal of the petitioner maintaining the dismissal of the suit filed by the petitioner.

2. Facts leading to the instant revision petition, in substance, are that the plaintiff/petitioner filed a suit for declaration with regard to the landed as well as residential property of the deceased Muhammad Hussain, situated in village Tanda Tehsil and District Gujrat. The plaintiff asserted in the plaint that Muhammad Hussain deceased was his real uncle who has no male issue. He had got mortgaged his property but failed to redeem the same due to the paucity of funds. The deceased used to live with him and adopted him as his son. The plaintiff further claimed that he got redeemed the property of the deceased by depositing the loan amount and Muhammad Hussain deceased promised to gift his property in his favour and since then, he being the owner of the property is in possession of the same. The plaintiff prayed that a decree be passed in his favour directing the Revenue Authorities to enter the mutation of gift in his favour and restraining the defendants/respondents from claiming the property of the deceased as his legal heir. The suit was contested by the defendants/respondents, who file their written statement controverting the assertions of the plaint.

3. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the various issues:-

4. Learned trial Court, after recording and appreciating, the evidence of the parties pro and contra, dismissed .the suit. Feeling aggrieved, the petitioner preferred an appeal which was also dismissed by the learned lower Appellate Court vide the impugned judgment and decree dated 25-2-2005.

5. I have heard the learned counsel for the petitioner and perused the record.

6. The main controversy that boils down for determination before this Court is whether the deceased Muhammad Hussain has gifted the suit property in favour of the plaintiff through gift-deed dated 15-12-1996? There in no cavil with the fact that a Muslim can make an oral gift or through an unregistered instrument. Be that as it may, a person who is the beneficiary of the gift, the donee has to establish by cogent and sufficient evidence the requirements of a valid gift. The litigant has to prove (a) declaration by the donor (b) acceptance of gift by the donee (c) delivery of possession under the gift.

7. To establish his assertion, the plaintiff/petitioner has produced a copy of unregistered gift-deed Exh.P. 1 attested by two attesting witnesses Abdul Haq and Muhammad Saleem and also produced four persons. The plaintiff/petitioner has appeared as P.W. 1 as his own witness and has also produced Khadim Hussain, P.W.2, Muhammad Saleem, P.W.3 and Mst. Shafqat Bibi as P.W.4.

8. The first ingredient of a valid gift is the declaration/intention of the donor to B make the gift in favour of the donee. The plaintiff/petitioner in his examination-in chief has nowhere stated that when and where, the donor, deceased Muhammad Hussain has declared his intention to gift away the suit property in his favour. So much so, P.W.2, P.W.3 and P.W.4 are also silent on this factum. P.W.4, Shafqat Bibi in her cross-examination has deposed C that about 6/7 years back, the deceased had stated that he had gifted out his property. P.W.3 Muhammad Saleem who claims to be the attesting witness of Exh.P. 1 has also not stated even a single word to the effect that donor has declared his intention in his presence. He only admits the signature on the Exh.P.1. He also admits that he is an illiterate person. It means that he did not know the contents of the Exh.P.1/deed of gift. The first ingredient of a valid gift i.e. declaration has not been proved by the plaintiff/petitioner.

9. There is also no evidence on the record to establish that after the declaration by the donor, the plaintiff has accepted the gifted property. 3rd ingredient of a valid gift is delivery of possession under the gift and the petitioner has not produced any evidence that the property was handed over to him by the donor after making his declaration of intention. He deposed that the suit property is in his possession and he installed a Tube Well and constructed a Dera in the land. He stated that the suit property was previously in his possession. It is sufficient to infer that the donor did not deliver the possession of the suit property to him after the gift. P.W.2, Khadim Hussain has controverted the statement of P.W. plaintiff/petitioner stating that the Tube Well has been installed during the life time of the deceased Muhammad Hussain and the trees were also standing in his life time. So much so, the earlier suit with regard to the same land was filed by the petitioner wherein, the petitioner has not taken the plea of gift.

10. What is really required by Muslim Law is that there should be satisfactory evidence that the donor did in fact part with possession of the subject-matter of his gift either physically or constructively as held in the case of Safi Ullah v. Ghulam Jabbar and 4 others PLD 1955 Lahore

191. It is also a settled preposition of law with regard to Mohammedan gift that beneficiary of gift must prove validity of gift where factum of gift was challenged. Reference in this context can be placed to the case of Yar Baz Khan v. Lal Nawaz PLD 1996 Peshawar

86. In case of Mst. Patch v. Khair Muhammad 1999 YLR 2576, it has also been observed by this Court that G delivery of possession is a condition precedent to the validity of the gift.

11. The statement of the plaintiff, that he is in possession under the gift is belied from the statement of P.W.2, Khadim Hussain who deposed in his examination-in- chief that the land was under cultivation of Feroz Din father of the plaintiff. It means that after his death, the petitioner continued the possession and cultivation of the land. It is also an admitted position that the disputed land is a joint khata and father of the plaintiff was cultivating the same.

12. Exh.P.1 the alleged deed of gift has not been proved in accordance with Article 17 read with Article 79 of Qanun-e-Shahadat Order. Only Muhammad Saleem attesting witness has appeared as P.W.3 and his statement has not been corroborated by I any other attesting witness. The other marginal witness Abdul Haq has died and no one has appeared to verify his signature on the said deed and it is established that this document Exh.P.1 is not admissible in evidence.

13. Gift will be null and void when circumstances and evidence on record show that no gift ever was made by deceased and everything was fictitious and concocted. In this context reference can be made to the case of Allah Javai and others v. Mst. Javai and others 2000 MLD

155. The plaintiff/ petitioner has miserably failed to establish K on record the validity of gift in his favour.

14. The most important aspect of the case is that there is a concurrent findings of fact which would not be disturbed in revision in absence of misreading/non reading of the record. In this context reliance can be placed to the case Allah Bakhsh and 3 others v. Mst. Bakhat Bhari and another 1990 CLC 2027; Riaz v. Muhammad Saleem and 4 others 1989 SCMR 1491 and Abdul Hameed v. Ghulam Muhammad and others 1987 SCMR 1005. Learned counsel for the petitioner has not been able to point out any illegality, jurisdictional defect, misreading and non-reading of evidence in the judgments and decrees passed by the lower Courts.

15. For the foregoing reasons, this revision petition having no force is dismissed in limine. S.A.K./L-126/L Revision dismissed.