1980 PLP 872 (CLC)

This is a second appeal by the plaintiff-appellant against the judg ments and decrees of the Lower Courts whereby the suit for cancellation of a gift-deed of the suit property was dismissed. The suit in this appeal relates to the validity of the transfer of the gifted property consisting of agricultural land measuring I1 kanals and 3 marlas under Surveys Nos. 205 and 236 and a house measuring 4 marlas under Survey No. 206-min situate in village Banala, Tehsil Nakial, District Kotli, made by Kala Khan respondent to Jan Muhammad respondent. It was contended by the plaintiff appellant in his suit that as the property in suit was ancestral one no gift of the same could legally be made as against the rights of the plaintiff-appellant because he as well as the donor are the descendants of a common ancestor Noor Khan by name. The custom etc., was pleaded as a bar to the transfer of the property be way of gift and it was further added that as possession of the property gifted away was not delivered to the donee, no validity could be attached to the deed of gift for want of delivery of possession. Furthermore, it was also prayed that a perpetual injunction may also be granted refraining the defendants from interfering with his possession of the suit property. The defendants, viz. donor and donee both resisted the suit and asserted that Kala Khan donor-defendant was an absolute owner of the property in suit and there was no restriction imposed by law to it so as to invalidate the gift made in favour of Jan Muhammad, the respondent. According to them, it was validly made and possession of the property gifted away was also delivered to the donor and as there was nothing of the landed property left in the name of the donor provisions of the Land Reforms Act placing fetter on the sale etc., of the agricultural land, if any, were not attracted in this case. The learned counsel for the parties were heard and the perusal of the record of the case was also made. The trial Court framed the issues as under :- (1) Whether the plaintiff and Kala Khan defendant are the descen dants of a common ancestor ? O.P.P. (2) Whether the property in suit is the ancestral property of the plaintiff and defendant No. 2 which was inherited by the latter from his father under custom in Dogra Regime and what would be its effect on the suit ? O.P.P. requirement unless it was shown that he was actually on the streets and had no place to live at all. This judgment of the supreme Court clinches a the issue. In the circumstances the order of remand passed by the learned Additional District Judge cannot be sustained.

4. Mr. S. H. Rizvi, learned counsel for the respondent, contended that the appeal was not maintainable as the same was directed against the order of remand. This issue stands covered by a judgment of this Court reported in P L D 1976 Kar. 811 where it was held that an appeal was maintainable against an order of remand passed by a District Judge, Mr. Rizvi relied upon a judgment of the Supreme Court in the case of Ibrahim v. Muhammad Hussain (P L D 1975 S C 457). The said judgment is not applicable because in that case the point in issue was with regard to the maintain ability of an appeal against an interlocutory order of provisional character made under the first part of section 13(6) of the Ordinance, which did not necessarily result in striking off the defence and order of ejectment.

5. For the reasons mentioned above, the appeal is accepted and the order of the learned Additional District Judge dated 20th November, 1978, is set aside and the case is remanded to him for deciding the appeal of the respondent on merits within three months. There will be no order as to costs. M. Y. M Appeal accepted.