2020 PLP 2448 (YLR)

ALI BAIG, J.

Through this civil 1st appeal, the appellants have called in question the impugned judgment/decree dated 27-10-2018 passed by the learned Senior Civil Judge Gilgit in C.S. No.52/2016, whereby the learned trial court has dismissed the suit of the appellants/plaintiffs and has decreed the cross suit bearing No.155/2016 filed by the present respondents Nos.1 and 2/ plaintiffs, in their favour.

2. Brief but essential facts leading to institution of the instant civil 1st appeal are that the present appellants/plaintiffs instituted a suit hearing No. C.S. No.52/ 2016 for declaration and permanent injunction against the present respondents/ defendants in the trial court claiming that appellants/plaintiffs are owners in possession of suit land measuring two kanals one maral fully described in the head note of the plaint which was verbally gifted to the appellant/plaintiff No.1 by the present respondent No.1 in the year, 1988 in presence of witnesses. Remaining two marlas land was purchased by the appellant/plaintiff No.2 from one Syed Akber Shah son of Fathullah Khan in consideration of Rs.140,000/- (one lac forty thousand). Accordingly the appellants/plaintiffs are owners of the suit land measuring two kanals 3 marals situated at mouza Khomer.

3. The present respondents/ defendants Nos. 1 and and 2 hotly contested the suit by way of filing their joint written statement in the trial court wherein they have raised certain legal objections and have also denied the averments of the plaint by pleading/ asserting that the suit land has never been gifted to the appellant/plaintiff No.1 by the respondent No.1.

4. It is pertinent to mention here that present respondents Nos.1 and 2 have also filed a suit bearing No. C.S. 155/ 2016 for declaration and possession of suit land against the present appellants in the trial court claiming that the present respondent No.1 is owner of suit land measuring 2 kanals 3 marals fully described in the head note of plaint which was allotted to the present respondent No.1 namely Ashraf Aman by the Government/ competent authority in the year, 1978. The present respondents further averred in the plaint that they have constructed boundary wall , house , shops and food processing factory on the suit land. The appellant No.2 was also residing with the respondent No.1 along with his family in the said house being brother of the present respondent No.

1. When the present respondent No.1 asked the appellant No.1 to vacate the house and he refused to vacate the disputed properties, therefore, suit for declaration and possession of suit properties has been filed.

5. The present appellants being defendants in the said suit contested the suit by way of filing their joint written statement in the trial court raising certain legal objections and repudiating averments of the plaint. The defendants Nos.3 and 4 have also filed written statement in the trial court wherein they have pleaded that suit land measuring two kanals 1 marla is still in the name of the present respondent No.1 namely Ashraf Aman in revenue record.

6. The learned trial court consolidated Suit No.155/2016 with Suit No.52/2016 vide order dated 18-4-2017. Out of divergent pleading of the parties, the learned trial court framed 16 issues including relief.

7. After framing of issues the learned trial court directed the parties to adduce their respective evidence as they wished to adduce. Accordingly, the present appellants/plaintiffs have produced seven oral witnesses in the trial court besides recording of their statement through appellant No.2. The appellants/plaintiffs have also produced some documentary evidence Exh. P/1 to Exh. P/5. Likewise, the presents respondents 1 and 2/defendants have also produced five oral witnesses besides recording of their statement through respondent/defendant No.1 in the trial court. The present respondents Nos. 1 and 2 have also produced documentary evidence Exhs. D/1 to D/20.

8. On conclusion of trial, the learned trial court vide the impugned judgment/decree dated 27-10-2018, decreed suit No.155/2016 in favour of the present respondents Nos.1 and 2 and Suit No.52/2018 filed by the present appellants has been dismissed holding it meritless, hence this civil 1st appeal.

9. The learned counsel appearing on behalf of appellants/plaintiffs contended that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of the case, as such the impugned judgment/decree passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellants further argued that the impugned judgment passed by the learned trial court is result of misreading and non-reading of evidence of the parties as such the impugned judgment passed by the learned trial court is not sustainable in the eye of law. The learned counsel for the appellants further argued that the appellants/plaintiffs have fully proved the issues Nos.1 to 7 through oral and documentary evidence, but the learned trial court has drawn wrong inference from the said evidence and has wrongly dismissed the suit of the appellants and has decreed suit of the present respondents Nos.1 and 2 vide the impugned judgment under appeal which is reverse able.

10. On the other hand the learned counsel for the respondents Nos.1 and 2 controverted the arguments advanced by the learned counsel for the appellants and supported the impugned judgment/decree passed by the learned trial court by contending that since the appellants have badly failed to prove their case/claim by adducing credible, convincing and reliable oral and documentary evidence in the trial court, whereas, the respondents Nos.1 and 2 through convincing reliable and cogent documentary evidence have proved their case/claim in the trial court, therefore, the learned trial court has rightly dismissed the suit of the present appellants and has decreed suit of the present respondents Nos.1 and 2 vide the impugned judgment which may be maintained. The learned counsel for the respondents Nos. 1 and 2 further argued that admittedly the suit land has been allotted to the respondent No.1 by the Government/competent authority and which is entered in the name of present respondent No.1 in revenue record as admitted by respondents Nos. 3 and 4 in their written statement.

11. We have heard the arguments of the learned counsel for the contesting parties and have perused the record with their able assistance.

12. Admittedly it is case/claim of the present appellants/plaintiffs that the suit land under Khasra No. 686 measuring two Kanal One Maralas situated at Mouza Khomar was gifted to the appellant/ plaintiff No.1 by the respondent/defendant No.1 in the year 1988 through oral gift in presence of witnesses. The present appellants have constructed boundary wall, shops, house and food processing factory by investing huge amount on the suit land.

13. From perusal of record it transpires that, in order to substantiate the aforesaid claim the present appellants/ plaintiffs have failed to produce convincing, reliable, cogent oral and documentary evidence in the learned trial court except recording of statement of PW-1 namely saraf Jan son of Qamar Zaman, who has deposed as under:- In his cross-examination, the above named PW has admitted as under:- Statements of remaining PWs are not related to the alleged gift. To prove the alleged oral gift allegedly made by present respondent No.1 namely Ashraf Aman in favour of present appellant Mst. Gul Adam only one witness namely Saraf Jan has been produced in the trial court who has deposed as mentioned above. The statement of above named person is not admissible in evidence for the following reasons:- Firstly, he is real brother of alleged donee/appellant No.1. Secondly, he has not stated single word regarding acceptance of gift by donee and delivery of possession of suit property in his statement recorded in the trial court. Thirdly, as admitted by him in his cross-examination that he is mentally retarded person. Fourthly, no open declaration of gift was made by the respondent No. 1 in presence of impartial witnesses, thus the alleged oral gift is defective and invalid.

14. In the case of oral gift a very heavy burden of proof lies on the shoulders of the donee to prove the gift beyond any shadow of doubt the offer, acceptance and delivery of possession, such heavy onus was on the plaintiffs/ appellants which they failed to discharge as except production of above named PW they have not produced any independent person in the trial court to prove alleged oral gift.

15. It is also admitted fact that the suit land has been allotted by the competent authority/Government in favour of the present respondent No.1 as evident from the allotment order dated 11th March 1978/Exh. D/1, mutation of said allotment land has been attested in favour of respondent No.1 on 20-4-1983 as evident from Exh. D/10 and name of respondent No.1 has been entered in Khasra Girdawary Exh. D/11 and Jama bandi, Exh.D/12. Moreover, the respondent No.1 vide mutation Exh.D/13 attested on 27-11-2008, has purchased two Marlas land situated adjacent to his allotted land from one Syed Akbar Khan son of Fatha-ur-Rehman as evident from Exh. D/13.

16. It may be mentioned here that the appellant/plaintiff No.1 has alleged/ averred in the plaint that the suit land was gifted to her by the present respondent No.1 but it is astonishing to observe that the documents Exhs-P/1 to 5 produced in the trial court by the appellants have been issued in the name of appellant/defendant No.2 namely Anwar Ali Khan , whereas the suit land has neither been gifted to the appellant/petitioner No.2 nor the present respondent No. 1 has transferred the suit land in the name of the appellant No.2, hence the said documents are irrelevant documents and are not admissible in evidence.

17. The learned counsel for the appellants has not been able to convince us that the learned trial court has, in any manner exceeded its jurisdiction, commit-ted any illegality or material irregularity in arriving at its conclusion. Consequently, while upholding the impugned judgment/ decree dated 27.10.2018, passed by the learned trial court, this civil 1st appeal is found to be without merits and accordingly stands dismissed leaving the parties to bear their own costs. File. ZC/148/GB Appeal dismissed.