2005 PLP 2994 (YLR)

This Civil Revision challenges the validity of judgment 'and decree, dated 10-11-1993 passed by learned Additional District Judge, Rahim Yar Khan, whereby the appeal filed by respondents Nos. 1 to 7 against the dismissal of their suit by the learned trial Court vide judgment and decree, dated 13-7-1992 was accepted and the suit filed by Rahmat Ali predecessor-in -interest of present respondents Nos. 1 to 7 was decreed.

2. The facts briefly stated are that Rehmat Ali predecessor-in-interest of the present respondents filed a suit for declaration that he and respondents Nos. 8, 9 and 10 being heirs of Mst. Jewan were entitled to inherit in the estate left by Mst. Bibi widow of Gamoon mother of Mst. Jewan along with petitioner and present respondent No. 11, in respect of the property detailed in the head-note of the plaint and the alleged gift-deed, dated 23-1-1960 and mutation of sale No.70, dated 28-5-1963, by Mst. Bibi in favour of Sindhi predecessor-in-interest of the petitioner, was result of forgery, collusion, without consideration, hence ineffective qua the plaintiff's rights and for permanent injunction restraining the petitioners/ defendants from illegally interfering in their ownership and possessory rights of the suit-land. The suit was contested by Sindhi predecessor-in-interest of the present petitioner only, who in his written statement contended that the suit was time-barred; it was not maintainable in its present form, was not properly valued and that as Mst. Bibi in her life-time had disposed of the entire suit property in his favour through the above-mentioned gift-deed and sale mutation, hence there was nothing left heritable by the petitioner in the estate of Mst. Bibi and suit was liable to be dismissed.

3. The learned trial Court keeping in view of the divergent pleadings of the parties framed the following issues and put the parties at trial:-- ISSUES:-- (1) Whether the plaintiff is entitled to have a decree of declaration and permanent injunction as prayed for? OPP. (2) Whether alleged registered sale-deed, dated 23-1-1960 and Mutation No.245, dated 26-2-1962 and Mutation No. 70, dated 28-5-1963 are illegal, forged, collusive and not binding on the right of the plaintiff as prayed for the title of his suit? OPP. (3) Whether the suit is not maintainable as the plaintiff is not in possession of suit-land? OPD. (4) Whether the value of the suit for the purposes of court-fee and jurisdiction is not proper? OPP. (5) Whether the suit is time-barred? OPD. (6) Whether the plaintiff is in possession of suit-land'? OPP (7) Relief.

4. In the meanwhile, Rehmat Ali original plaintiff expired, hence, the respondents were impleaded as heirs and they led the evidence. In support of their plaint, Ashiq Ali besides appearing as his own witness as P.W.4, produced Ali Muhammad P.W.1, Ali Ahmad Muhammad P.W.3 and closed the evidence after placing on record documents Exh.P-I to Exh. P-6. In rebuttal Sindhi deceased petitioner/ defendant produced Rehmat Ullah Record Keeper of the Record Room D.C. Office, Rahim Yar Khan as D.W-1, Rafiq Ahmad D.W.2, Siraj Din D.W.3, Muhammad Tufail as D.W.4, Abdul Hameed as D.W.S, Munshi Muhammad Latif D.W.6 and he himself appeared in the witness-box as D.W.6 and closed his evidence by placing on record documentary evidence Exh.D-1 to Exh.D-13. On the conclusion of the trial, the learned trial Court vide judgment and decree, dated 13-7-1992 dismissed the suit filed by Ashiq Ali predecessor-in-interest of the respondents but on appeal the learned Additional District Judge, Rahim Yar Khan vide judgment and decree, dated 10-11-1993 set aside the judgment and decree of the trial Court and by accepting the appeal decree Ashiq Ali's suit as prayed for. Hence this revision.

5. Learned counsel for the petitioner has argued that the learned trial Court on due appraisal of facts and evidence correctly dismissed the suit of Ashiq Ali, whereas, findings of the learned trial Court have been illegally reversed and the suit of Ashiq Ali has been erroneously decreed. On the other hand, learned counsel for the respondents appearing on behalf of legal heirs of Ashiq Ali has supported the judgment and decree of learned Appellate Court.

6. The main issue covering the cause of action is that of Issue No.2, as in the plaint filed by Ashiq Ali it was alleged that the registered gift-deed, dated 23-1-1960 Exh. D-1. Mutation No. 245, dated 26-2-1962 and 'mutation of sale No.70, dated 28-5-1963 Exh.D-5 are illegal, forged, collusive and not binding on the rights of the plaintiffs, as prayed for in the tile of the suit. Since the predecessor-in -interest of the petitioners/namely Sindhi was beneficiary under the said gift-deed as well as the sale of mutation, hence, onus to prove the execution of the said gift-deed as well as factum of alleged gift and sale vide Mutation No.70 in his favour by Mst. Bibi should have been on him but through Issue No. 2 as it is farmed, the said onus was illegally placed on Ashiq Ali plaintiff. Yet as Sindhi the predecessor-in-interest of the petitioner despite this defect led the evidence to prove the gift as well as sale therefore, the question of burden to prove becomes irrelevant because it is an established principle of law that where the parties are aware of the controversy and have also led evidence then the fact that the issue was properly or improperly framed becomes redundant.

7. So far as the question whether Mst. Bibi gifted away the suit property to Sindhi and executed the said gift-deed Exh.D.1, is concerned, the predecessor-in-interest of the petitioner namely Sindhi produced Muhammad Tufail D.W.1 who is the attesting witness of gift-deed Exh.D-1 and Munshi Muhammad Hanif D.W.6 who is stated to have identified the handwriting of Nizam Din who signed this document as identifying witness. However, one Abdul Hamid has also been produced as D.W.S to prove the execution of the said document. An appraisal of the evidence of these witnesses shows that they were neither related to Mst. Bibi nor knew her personally. Besides the above evidence no independent evidence to prove the factum of gift by Mst. Bibi in favour of Sindhi has been produced. It is an established principle of Muslim Law that mere recital in gift-deed about declaration by the donor and acceptance by the donee, without expressed proof of proposal, acceptance and delivery of possession under the gift is not sufficient. Similarly, mere recital in the gift-deed that possession has been delivered to the donee is not enough. The Hon'ble Supreme Court of Pakistan in the case of Ashiq Hussain and another v. Ashiq Ali (1972 SCMR 50), held that proof of three essentials of gift under Muhammadan Law: (i) A declaration of gift by the donor; (ii) an express or implied acceptance of the gift by the donee; and (iii) delivery of possession of the gifted property by the donor to the donee, is necessary and in the absence of any of these essentials, gift under the Muslim Law cannot be held as complete. Even none of the D.Ws. produced by Sindhi have deposed that either proposal or acceptance was made in their presence or the possession of the same was delivered to Sindhi as donee. Their .evidence though not consistent yet on the question of proof of execution of said document only is not sufficient to hold that a valid gift was made to Sindhi. Learned counsel for the petitioner has laid stress that admittedly Sindhi was in possession of the suit property but is also admitted fact that Sindhi never obtained possession of the suit property under gift, rather he has admitted in his evidence as D.W.6 that he was in possession of the suit property prior to the said gift. The conclusion drawn by the learned Additional District Judge while deciding the question of gift is not only correct but based on proper appraisal of evidence.

8. As regards the alleged sale by Mst. Bibi in favour of Sindhi through Mutation No.70, dated 28-5-1963, suffice it to say that property in dispute is situated in Tehsil Rahim Yar Khan which formed part of erstwhile State of Bahawalpur and through Notification No.20 issued on 28-5-1931, the Government of Bahawalpur as it then was, extended the provisions of section 54 of the Transfer of Property Act throughout the Bahawalpur State, which Notification remained effective till 23-8-1979 when it was cancelled by the order of Governor of Punjab/Revenue Department, Government of Punjab Notification No.666-79/1/70-L.R.I, meaning thereby that at the relevant time when disputed Mutation No.70, dated 28-5-1963 was sanctioned, sale of immovable property within the area where the property is situate, could only be effected through registered document in terms of section 17 of the Registration Act and in the manner provided by section 54 of the Transfer of Property Act. It, in this background in view, has been held by the superior Courts that since provisions of section 54 of the Transfer of Property Act per force of the above mentioned notification had been extended in the territorial area of Bahawalpur State, hence, any sale of immovable property worth more than Rs.100 not effected by registered deed, did not confer any title or interest to claim ownership on a person claiming ownership right except defending possession. Reliance is placed on the case of "Jandi v. Jhanda and others" (PLD 1961 (W.P.) Baghdad-ul-Jadid 34), "Sohna v. Allah Dad and another" (PLD 1962 Baghdad-ul-Jadid 17), "Muhammad Amin and others v. Mian Muhammad" (PLD 1970 BJ 5), "Muhammad Bakhsh v. Zia Ullah and others" (PLD 1971 Baghdad-ul-Jadid 42), "Pir Bakhsh v. Budhoo" (PLD 1978 Baghdad-ul-Jadid 86) and "Muhammad Masood Khan Bhatti v. Ghulam Fatima" (1987 SCMR 1206). All these judgments relate to ownership dispute of immovable property situated within the area of erstwhile Bahawalpur State where the provisions of section 54 of the Transfer of Property Act remained in force from 28-5-1931 to 23-8-1979. So, in view of the above-mentioned legal position, the learned Additional District Judge, rightly held that no ownership rights in favour of Sindhi defendant were transferred to him through Mutation No.70 sanctioned on 28-5-1963 nor could be transferred in a manner other than the one required through section 17 of the Registration Act and section 54 of the Transfer of Property Act. The findings of the learned Appellate Court on Issue No.2 are therefore, correct and as such are maintained. Since Sindhi failed to prove the execution of gift-deed as well as factum of gift through independent evidence in his favour and that the sale in his favour through mutation was not valid being violative of the provisions of section 17 of the Registration Act read with section 54 of the Transfer of Property Act, the judgment and decree passed by the learned Appellate Court are quite proper and in accordance with law and no exception can be taken to the same.

9. For what has been discussed above, this Civil Revision is dismissed, leaving the parties to bear their own costs. H.B.T./5-424/L Revision dismissed.