2006 PLP 819 (CLC)

MIAN SAQIB NISAR, J.

The present R.S.A. No.84 of 1999 and R.S.A. No.100 of 1999, are being disposed of together, as both these involve the common questions of law and facts and arise of the consolidated suits between the parties.

2. Briefly stated the facts of the case are, that Abdul Hameed father of the parties, purchased the shop in dispute bearing No.1959 situated opposite to the Civil Courts at Daska, on 20-4-1976 through an open auction, from the Settlement Department as being an evacuee property; P.T.O. and P.T.D. have also been issued in the name of the father. Subsequently, somewhere in the year 1992, the appellant filed a suit for the declaration that he is the real and actual owner of the property, whereas his father was only a Benamidar. He claimed to have paid the price of the property; alleged to be in possession in his own rights; his name appearing in the record of Excise and Taxation Department as well and the original documents of title being in his custody. The father defended the suit; besides, he also filed another suit for the possession stating that his son (the appellant) is a licensee and under an Iqrarnama, had agreed to deliver the possession back to him, which he is now denying. Both these suits were consolidated. Issues were framed, parties were put to trial and the learned Civil Judge was pleased to dismiss both the suits; he did not accept that the appellant was the real and actual owner of the property; while the suit, of the respondents' side was dismissed for the reason that during the pendency of the litigation, the father had died and few days prior thereto, had gifted the shop in favour of his two other sons by executing a registered document. The appellant has also challenged the gift in the written statement filed by him in the suit for the possession, originally initiated .by the father. This controversy culminated in Issue No.2. Both the sides, being aggrieved of the judgment and decree of the learned trial Court, preferred appeals; appeal of the appellant has been dismissed, while that of the respondents stands accepted, hence these appeals.

3. Learned counsel for the appellant contends, that the original documents of the property P.T.O. and P.T.D. are in possession of the appellant; he is also in possession of the property and his name appears in the Excise and Taxation record as the owner. But when asked, as to what was the motive of buying the property in the name of his father, no clear-cut answer has been given and there is no evidence on the record in this regard. Whereas, it has been categorically conceded by the learned counsel for the appellant that as per record, the father has adjusted his compensation book towards the auction price. Obviously, this being the most important element, because the consideration stands proved to have been paid by the father.

4. As regards the possession of the property; custody of the title documents and the name of the appellant in the Excise and Taxation record are concerned, suffice it' to say that the appellant and Abdul Hameed, the original defendant/respondent, were so closely related and the appellant seems to have been put in possession of the property as licensee by the father; the custody of the original documents, which may be lying in the shop or the house, and if given to the son for a safe custody, has no much relevance. For the Excise and Taxation record, it has not been established that as to how be appellant has been shown as owner therein. If he had got his name incorporated, that by itself does not confer any title to the property. About the issue of gift, suffice it to say that the argument of the appellant's counsel is not supported by evidence that the father was on death bed, when he had executed the gift deed in favour of his two other sons, which is a registered document. There also is no material that the deceased, at the time of making the gift was of indisposed mind. Simply for the reason, that he died two days after the execution of the deed, by itself would not be a case of invalidating the gift for the reason of Marz-ul-Maut. Resultantly, I do not find any merit in these appeals, which are accordingly dismissed. No order as to costs. S.A.K./A-532/L Appeals dismissed