2008 PLP 1896 (YLR)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that respondent filed a declaratory suit claiming herself to be owner of 1/3rd land being daughter of Barkhurdar and sister of Gulzar Ahmad not party before this Court). She also challenged the gift Mutation No.245 attested on 12-2-1994 whereby property of said Barkhurdar was divided between Gulzar and the present petitioners equally depriving respondent. In the meanwhile, after the death of Barkhurdar her claim was that she being the sole daughter with one brother was entitled to 1/3rd share. The present petitioners along with Gulzar filed a joint written statement simply denying the assertions made in the plaint. After recording evidence of the parties, the learned Trial Court vide judgment and decree dated 18-11-1990 dismissed the suit. The same was assailed by the respondent through an appeal which was allowed vide judgment and decree dated 21-1-1996. This appellate decree is being assailed through the instant civil revision.

2. It is contended by learned counsel for the petitioners that property in dispute was jointly acquired by Barkhurdar father of Mst. Naziran and Gulzar with Barkat his brother, father of the petitioners, therefore, for this reason said Barkhurdar being the elder brother distributed the property equally between his son and sons of his brother Barkat. It is further argued that because of the above reason, Gulzar felt satisfied with 7 acres of land total being 15 acres although if he refused to side with the petitioners, he could either claim all the 15 acres or 10 acres at least with his sister Mst. Naziran getting 5 acres. It is next argued that the immediate cause for filing of the instant suit was that when Mst. Rasoolan wife of Gulzar demanded her share of inheritance from her father Ghulam Muhammad (Another brother of Barkhurdar), Rasoolan's brother Ghulam Rasool, husband of Naziran got this suit instituted in retaliation. It is further argued that the learned Appellate Court did not go through the entire evidence and had merely based its findings on technicalities. It is lastly argued that the onus of issue No.1 was placed on the plaintiff/respondent who has failed to discharge its onus.

3. On the other hand, learned counsel for the respondent has controverted the arguments advanced by the learned counsel for the petitioners and defended the appellate order.

4. I have considered the arguments of the learned counsel for the parties.

5. The arguments advanced by the learned counsel for the petitioner are although emanating from some of the evidence led by the petitioners but unfortunately the petitioners although joined hands with Gulzar and filed a joint written statement but his fact was not pleaded that the property in dispute was jointly purchased by Barkhurdar and Barkat through their consolidated fund, therefore, for this reason the property was equally divided by Barkhurdar through the impugned mutation. The immediate cause of filing of the suit has also not been disclosed in the written statement. These were the very inherent facts on the basis of which the petitioners had led their evidence. Without pleading those facts, no amount of evidence could be brought on record and even if it is brought. on record, the same cannot be read in support of their case. Reference can be made in Budho and others v. Ghulam Shah '(PLD 1963 SC 553), Hashmand v. Haji Sohbat Khan and others (1985 SCMR 1439), Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696) and Binyameen and 3 others v. Chaudhry Hakim and others 1996 SCMR 336.

6. Although onus of issue No.1 was placed on the respondent/plaintiff, but it was also the duty of the petitioners being the beneficiary of the gift mutation to have established the fact of a valid gift. None of the witnesses of the petitioners had stated about the offer of gift made by Barkhurdar and acceptance on the part of Gulzar. In the absence of two very basic ingredients of a valid gift, a transaction cannot be validly held to be a gift.

7. Although the learned Appellant Court had not taken into account all necessary aspects of the case and had gone on some minor discrepancies but still I would not like to interfere on the same for reasons of may own. Resultantly finding no merit in this petition, the same is accordingly dismissed. H.B.T./A-26/L Petition dismissed.