2001 PLP 1156 (SCMR)

DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 20-4-1994, passed in R.S.A. No.313 of 1975.

2. The facts, in brief, are that Allah Ditta, father of the respondent, was owner of 79 Kanals, 6 Marlas of land with share of Shamlat, situate in Chak Sanatta, Tehsil Wazirabad, District Gujranwala. He was married to Mst. Barkat Bibi, but later divorced her in his lifetime. Mst. Barkat Bibi remarried to one Lal, and from this couple four daughters were born. As far the progeny from Allah Ditta, she gave birth to two daughters, namely Mst. Nazir Bibi and Mst. Rasul Bibi respondent. As regards Mst. Nazir Bibi, there was no dispute that she was daughter of Allah Ditta from the womb of Mst. Barket Bibi. Nasrullah Khan appellant was the son of Mst. Nazir Bibi. As far Mst. Rasul Bibi, there was a serious dispute about her parentage. Nasrullah Khan appellant claimed that she was born from Mst. Barket Bibi from her marriage with Lal and that she was not the real daughter of Allah Ditta. Allah Ditta gifted away the entire land in favour of Nasrullah Khan vide Mutation No.4 attested on 12-1-1963.

3. On 25-9-1970 Mst. Rasul Bibi respondent, daughter of Allah Ditta, filed a suit in the Court of Civil Judge, Wazirabad, challenging the aforesaid gift on the grounds that she was the real daughter of Allah Ditta donor, that the appellant had got a fictitious mutation attested in his favour; and that neither any gift was made in his favour, nor possession of the property in dispute was delivered to him, nor he accepted the gift. It was alleged in the plaint that the respondent was a Pardanasheen lady and the appellant had been paying her the rent, but had stopped the same for the last two months from the institution of the suit. The appellant contested the suit and denied the averments made in the plaint. He even denied the relationship of the respondent with the deceased Allah Ditta. His case was that Mst. Rasul Bibi respondent falsely posed as daughter of the deceased Allah Ditta. As regards the gift of the land in his favour, it was averred that it was a voluntary disposition by his grand-father in his favour and all the necessary formalities including delivery of possession of the gift land were faithfully observed.

4. The learned trial Court after framing the issues and hearing the parties dismissed the suit vide judgment and decree dated 10-4-1972. On appeal, preferred by the respondent, the findings of the trial Court were maintained vide judgment dated 12-8-1974 by the learned Additional District Judge, Gujranwala. Thereafter, the respondent filed a second appeal in the Lahore High Court, which was allowed vide impugned judgment dated 20-4-1994.

5. On 22-10-1995 leave to appeal was granted to consider the question, whether the learned Judge in Chambers on the basis of the material available on record was justified in reversing the concurrent judgments/decrees of the Courts below.

6. Learned counsel for the appellant, inter alia, contended that the trial Court as well as the First Appellate Court had concurrently held that Allah Ditta donor had made a valid gift of land in question in favour of the appellant; that P.Ws. 1 and 3 clearly deposed that Allah Ditta donor had handed over the possession of the land in dispute to the appellant after the gift; that the finding of the High Court to the effect that since the Patwari, Qanungo and the concerned Revenue Officer had not been produced at the trial, therefore, the factum of the gift became doubtful, is totally baseless; that the appellant had been condemned by the High Court on the ground that the respondent had been proved to be the daughter of Allah Ditta in spite of the denial of the appellant; and that the factum of gift by Allah Ditta in favour of the appellant was fully proved on the record.

7. On the other hand, the learned counsel for the" respondent pointed out that the findings of the trial Court as well as the First Appellate Court were not based on proper appreciation of the evidence and were not sustainable; that in order to discharge the onus of Issue No.3, the appellant was required to prove all the ingredients of valid gift, if any, simple assertion of the fact that donor did gift the land to donee is not sufficient to prove the issue; that the learned High Court rightly held that the gift in its proper perspective had not been proved through cogent and reliable evidence; and that the Courts below had drawn wrong inferences and the findings were contrary to the facts of the case and were rightly set aside by the learned High Court.

8. We have carefully considered the arguments of the learned counsel for the parties and have also perused the record. No doubt Rehmat Khan, P.W.1 in his examination-in-chief had stated that Allah Ditta had delivered possession of the land which he gave to the appellant and that the same land was in possession of the appellant, but in cross-examination he un equivocally stated that he was not present at the time of gift. In examination- in-chief further stated as under:

Whereas, P. W.2 Muhammad Din deposed asunder:

Mehdi Ali D.W.1 stated that the mutation in question was effected in Chak Khizri and not in Chak Sannata. Ali Ahmad D.W.2 stated as under:

Nasrullah Khan appellant P. W.4 stated as under:

10. In this case another astonishing point is that the appellant and his witnesses even denied the relationship of the respondent to be the daughter of Allah Ditta. The statements given by them on oath show that actually they have no sanctity on oath and people on oath denied the real relationship of the respondent to be the daughter of Allah Ditta that they deliberately played fraud and mischief so that Mst. Rasul Bibi may not inherit her share to be devolved on her on account of death of her father. Mehdi Ali D.W.1 was Lambardar of revenue estate of Chak Sannatta, who identified Allah Ditta before the Revenue Officer and stated that he had gifted his land in favour of his grand son. He further stated that Muhammad Khan D.W.3 was present at the time of attestation of the gift mutation, but his presence was not marked in the attestation order by the Revenue Officer concerned and the copy of the mutation effected in favour of the appellant was also not formally tendered in evidence, though it was available on file of the trial Court. Column-14 of the mutation in question showed a report of the gift by Allah Ditta in favour of his grandson Nasrullah and the mutation was entered on this report. Copy of an extract from daily diary in support of the above report was also not produced before the Court and adduced in evidence. The- Patwari who recorded the report in daily diary was also not produced before the Court to prove his report. Careful perusal of the attestation order shows that Allah Ditta was not present before the Revenue Officer though it was shown that Mehdi Lambardar identified him. Admittedly, the land in question was situate in the revenue estate of Chak Sanatta but the mutation was effected in' Chak Khizri in order to prove a valid gift. It was very much obligatory for the defendant to prove voluntary nature of the gift in his favour by adducing convincing evidence and cogent reasons about the presence of Allah Ditta before the Revenue Officer for the purposes of admitting the gift by him. As stated hereinabove, in this case. neither' the Patwari who entered the mutation, nor the Girdawar-Halqa, who verified its entries nor the Revenue Officer who finally attested the gift mutation appeared at the trial to support the transaction at Chak Khizri. In the ordinary course of nature the mutation should have been taken up in the revenue estate to which it belonged. There is no explanation as to why it was taken to another revenue estate for attestation. The appellant was to get benefit from the above transaction. His evidence shows that he got interest but by itself was not sufficient to sustain gift of whole of his land by Allah Ditta. It was abundantly proved oil record that Mst. Rasul Bibi respondent was the real daughter of Allah Ditta, and this concurrent finding of the Courts below 'was not challenged by the appellant before the learned High Court. From the above narration it becomes quite clear that it was, a strange phenomenon that the appellant denied the relationship of the respondent with Allah Ditta. In evidence the appellant went to the extent of even saying that he had never seen the respondent, which shows that it was a false defence and incorrect deposition. Therefore, his testimony on the material point of gift of valuable land to him should not have been accepted by the trial Court as 'well as by the First Appellate Court.

11. It would be pertinent to refer to section 149 of Principles of Mahomedan Law, by D.F. Mulla's, which reads as under:--

149. The three essentials of a gift.--It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section

150. If these conditions are complied with the gift is complete." In this connection it has been held by this Court in Ami Chand v. Fajroo PLD 1991 SC 1001 that "alleged donor who was alive had disowned the gift

Delivery of possession to the alleged donee had not been established-- Circumstances fairly strong, led to the only reasonable and irresistible inference that the donee had not made any gift to the alleged donor in circumstances." It would be advantageous to refer here the case of Abdul Wahab v. Aurangzeb and 2 others 1997 SCMR 1087 wherein it has been held that:-- "Plaintiff's suit was decreed by all the Courts including High Court .. ... .. ...High Court repelled such contention by holding that recital in a deed about disputed fact was not conclusive proof of the same and once gift was challenged on the ground of same having not been completed for want of delivery of possession of land under the same, recitals in such deed could be proved to be according to firmly settled law-High Court found (plaintiff) was still in possession of land in question."

12. In view of the evidence, provisions of Mahomedan Law and the citations referred to herein above, we are of the considered opinion, that Allah Ditta donor did not make a valid gift in favour of appellant Nasrullah Khan.

13. The sum up of the above discussion is that the High Court after due consideration rightly accepted the second appeal of the respondent setting aside the concurrent findings of the Courts below. In our view, the learned High Court with sound and plausible reasons allowed the second appeal of the respondent. We also do not find any misreading or non-reading of evidence or jurisdictional error in the impugned judgment, which is based on the principles laid down by this Court. There is no substance in this appeal, which is hereby dismissed with no order as to costs. Q.M.H./M.A.K/N-42/S Appeal dismissed.