1999 PLP 1146 (CLC)

3. It was averred in the plaint that out of the gifted land, the land measuring 3 Kanals, 13 Marlas, Survey No.1005/505 Min, Survey No. 1017/247‑Min, measuring 1 Kanal, 10 Marlas and Survey No.973/505‑Min, measuring 4 Kanals, Khewat No.161, totally 9 Kanals, 3 Marlas, was in the ownership and possession of the plaintiff as such its gift was inoperative and ineffective on the rights of the plaintiff and the same may be cancelled. A prayer was also made that defendants be restrained from interfering into the suit land. The defendants resisted the suit and in their written statement raised various pleas, however, they admitted in their written statements that the suit land was partitioned among the three brothers.

4. After taking necessary proceedings and at the conclusion of the trial the learned Sub‑Judge decreed the suit in favour of plaintiff on 30‑11‑1990 and cancelled the gift deed to the extent of land measuring 9 Kanals and 3 Marlas, comprising Survey No. 1005/505‑Min, measuring 3 Kanals and 13 Marlas, Survey No.973/505 measuring 4 Kanals and Survey No.1017/247‑Min, measuring 1 Kanal and 10 Marlas, on the ground that the aforesaid land was in possession of the plaintiff and the same could not have been validly gifted away by respondent No.7 in favour of respondents 1 to

6. However, the gift deed to the extent of 10 Kanals, 16 Marlas out of Khasra No.1123/255 was held valid. The aforesaid judgment and decree passed by the learned Sub‑Judge were challenged by respondents 1 to 7 before the District Judge, Muzaffarabad, which was later on made over to Additional District Judge and the learned Additional District Judge by accepting the appeal filed by respondents rejected the plaint of the plaintiff under Order 7, Rule 11, C.P.C. The learned Additional District Judge also dismissed the suit on the basis of want of proof and by observing further that the vendor transferred the land measuring 19 Kanals, 19 Marlas by way of gift which was within his overall share and the land being joint with the three brothers, the possession of one co‑sharer shall be deemed to be the possession of all the co‑sharers.

5. In the meantime plaintiff Muhammad Khan died on 17‑7‑1995 and is now represented by Abdul Sattar and others as his legal heirs who filed an appeal against the judgment and decree passed by the Additional District Judge in the High Court on 28‑8‑1995. The High Court vide its impugned judgment and decree, dated 11‑10‑1997 dismissed the appeal and concurred with the view of learned Additional District Judge, Muzaffarabad.

6. Arguing the case on behalf of appellants, Mr. Muhammad Ibrahim Zia, the learned counsel, vehemently contended that the learned Additional District Judge as well as the High Court failed to appreciate the point that facts admitted need not be proved. According to him once the respondents admitted that suit land was in the share and ownership of father of appellants then there was hardly any need of further evidence and resultantly the gift‑deed was made without any lawful authority which was rightly cancelled by the trial Court. The learned counsel pressed into service the submission that both the learned Additional District Judge and the High Court committed an error by observing that a gift deed could have been only challenged by a donor or the heirs of the donor but the vital point to be resolved in the present case was that when the suit land, owned and possessed by an owner, is alienated by way of gift or sale by another co‑sharer who is out of possession, is the owner in possession precluded or debarred from challenging the validity of the gift‑deed? The learned counsel also pressed into service the submission that it is a fundamental principle of law that gift‑deed can only be completed when the same is accompanied by delivery o: possession to the donee. Where the donor is neither competent to give property nor he is the owner of the property nor the same is in his possession no gift can be said to have been validly made as the donee enters into the shoes of donor, when the donor himself was not owner of the property the donee cannot become owner through the execution of a mere gift‑deed. The learned counsel concluded that the learned Additional District Judge as well as the High Court misread and mis‑directed themselves by not appreciating the evidence in its true perspective.

7. On the other hand Mr. Ashfaque Hussain Kiani, the learned counsel for respondents, controverted the arguments raised by the learned counsel for the appellants. The learned counsel, fully defended the judgments passed by the Additional District Judge and the High Court. It was strenuously argued by Mr. Ashfaque Hussain Kiani that the donor alienated the land in favour of his sons on the basis of a gift‑deed out of a joint land within his over all share in the Khewat. His share in the Khewat was in fact more than the land gifted in favour of donees. The danees, according to the learned counsel, after getting the gift deed in their favour became the co‑sharers with the plaintiff‑appellants in the suit land and if at all they were in possession of less share they could have sought their remedy by filing a partition suit. Unless a regular partition takes place between the parties the possession of even one co‑sharer will be regarded as the possession of all the co‑sharers. The learned counsel also submitted that the gift‑deed being valid and keeping in view the over all share of the donor in the Khewat its validity could not have been challenged by the appellants.

8. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record made available with care, it may be stated that the land in dispute between the parties falls under Khewat No. 161, situate in village Garthama, Tehsil Hattian, District Muzaffarabad and its total acreage is 59 Kanals and 17 Marlas. The mutation of this land has been sanctioned in favour of three brothers namely Muhammad Khan. Aziz‑ur Rehman and Abdul Rehman in equal shares. So the share of each one of them was to the tune of 19 Kanals and 19‑ Marlas. Subsequently Aziz‑ur‑Rehman, respondent No.7, executed a gift‑deed of land measuring 19 Kanals, 19 Marlas to favour of his sons, respondents 1 to

6. Muhammad Khan plaintiff challenged the aforesaid gift=deed by filing a civil suit in the Court of Sub‑Judge Hattian on the ground that the land by way of private partition fell in his share so the vendor was not competent to alienate the land through a gift. Moreover, the gifted land being in possession of the plaintiff the gift was invalid due to non -delivery of the possession. The learned Sub‑Judge, as said earlier. decreed the suit to the extent of 9 Kanals, 3 Marlas, and the gift‑deed was cancelled to the above extent. However, to the extent of 10 Kanals, 16 Marlas of land the gift- deed was kept in tact. On appeal the District Judge set aside the finding of the trial Court and dismissed the suit filed by the plaintiff‑appellants for want of proof. The second .appeal taken to the High Court also failed. The first and foremost question that falls for determination in the instant case is that as to whether the gift‑deed executed by respondent Aziz‑ur‑Rehman in favour of his sons respondents 1 to 6 was valid due to the non‑delivery of actual possession to the vessndees and whether the other co‑sharer Muhammad Khan who challenged the validity and legality of the gift‑deed on the ground of non‑delivery of possession was competent to raise the question of invalidity of gift‑deed due to non‑delivery of possession. No doubt the parties in their evidence assert that the land had come to the share of three brothers in equal shares by way of family partition but the documentary evidence placed on record leads us to the definite conclusion that in fact the land was a joint land between the three brothers. In some of survey numbers Muhammad Khan was in their exclusive possession whereas in other survey numbers the other brother AA7‑ur‑Rehn‑an was entered in the column of cultivating possession It was also claimed by Muhammad Khan, one of the brothers, that the share of Abdul Rehman, the third brother, had also fallen into his share but when Muhammad Khan filed the suit for cancellation of gift‑deed he impleaded the third brother Abdul Rehman as a pro forma‑defendant and averred in the plaint that his rights were equal to him and he may join as plaintiff, meaning thereby that his ownership was even admitted at the stage of filing of the suit. Be that as it may, in the column of ownership the name of three brothers appears as owners and the mutation in the name of three of them has been sanctioned. ,

9. The learned Sub‑Judge cancelled the gift‑deed to the extent of 9 Kanals, 6 Marlas mainly on the ground that the possession of this land was not delivered to the vendees as such the gift‑deed was not complete. However, the gift‑deed, l earlier, was held valid to the extent of land measuring 10 Kanals, ‑13 Marlas. The learned trial Court lost sight of the fact that the land between the parties being admittedly a joint land was in the equal ownership of three brothers /~ and the possession of one co‑sharer of a joint land is deemed to be the possession of other co‑sharers. Thus, if the vendor could not deliver the actual physical possession of the land measuring 9 Kanals, 6 Marlas, the gift‑deed could not have been held invalid. In a case reported as Saida v. Pinnu and another PLD 1979 SC (AJ&K) 245 dealing with somewhat similar proposition the following observations were recorded at page ?47:‑‑ "With this state of law with which we concur, we now proceed to determine the issue. In the instant case, the donor, Noor Begum shall be deemed to be in constructive possession of the land with appellant Saida a co‑sharer, and naturally actual possession is inconceivable. However, in fact of the matter, the donor in this case, has done all she could do to perfect the contemplated gift by placing the donee in a position to take possession of the subject. The demand of law for completion of a gift in the first place is delivery of ' Khas' possession and if it is not possible then the legal necessity is that the donor should place the donee in a position to take the possession of the land. The latter requirement in this case has been fulfilled completely by Noor Begum. In this view of the matter the gift of the land by Noor Begum co‑sharer to Pinnu, a third person, without delivery of actual possession is valid because by transferring the title, which she had in the land, she was substituted by the donee and in fact she placed him in a position to take possession which in law is equivalent to delivery of possession. She has done all that she could do to perfect the gift. The objection therefore, about the non‑delivery of ' Khas' possession, in our view, is not available to the appellant. " It was further observed at page No.249 of the report in the following manner:‑‑ "After considering her statement, the point, therefore, which emerges. Is when a donor owns a gift and pleads total deprivation of his interest in the property, can any other person, as the case is before us, be entitled to challenge the validity of gift for non‑delivery of possession. On this aspect of the case our estimation is that such an objection is not available to a third person. A gift‑deed for want of possession can only be impeached by a donor and not by a third person ...." In another case titled Muhammad Bashir and others v. Muhammad Yaqub and others 1993 CLC 1084 it was observed at page 167 as under:‑‑ "We Have given due consideration to the arguments raised at the Bar. First coming to the question as to whether the gift‑deed executed by Mst. Bago in favour of Gulla is not valid because the same was not followed by the delivery of possession, it may be stated that it is well settled principle of law that the objection regarding non‑delivery of possession can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff. Alif Din or for that matter his legal representatives are not legal heirs of Mst. Bago. Thus, the gift‑deed in question could not be challenged on the ground of non‑delivery of the possession. "

10. It may also be highlighted that the ratio of the above authorities is that except donor and his heirs no other person can validly raise the question of non -delivery of possession for the completion of the gift‑deed, but this does not mean that except donor and his heirs no other person on earth can challenge the validity of a gift‑deed on the basis of non‑delivery of possession. If "C" a donor for instance alienates the land in the ownership of "A" to "B" it cannot be said that except donor and his heirs no other could challenge the validity of the gift‑ 8 deed on the basis of non‑delivery of possession. In such like case "A" who was the owner in possession of the land was competent to challenge the validity of the gift‑deed on the ground that donor was not competent to alienate the land as he was not the owner in possession of the land.

11. It may also be pointed out that in the instant case the donees Tariq Aziz and others, respondents 1 to 6, who were alienated land by Aziz‑ur‑Rehman, stepped into the shoes of Aziz‑ur‑Rehman. Aziz‑ur‑Rehman did all to divest himself of the ownership of the property and got a mutation sanctioned in the name of vendees and placed them in a position to get the possession. The vendees have now become the co‑sharers with the appellants. It is a well‑settled law that possession of one co‑sharer is deemed to be the possession of the other 1c co‑sharers. So legally speaking they are in the symbolic possession of the land gifted to them, though the actual possession of the some portion of the gifted land has not been delivered to them.

12. After hearing the arguments in the above case we felt advised to summon ‑the Patwari of Chak Hama, village Garthama, Tehsil Hattian, alongwith the relevant record of the suit land as some of the copies of Revenue Record were photostat copies so on 9‑7‑1998 the said witness appeared and got his statement recorded. From his statement it transpired that Muhammad Khan, the predecessor‑in‑interest of appellants, had already transferred his share of the land measuring 19 Kanals, 19 Marlas in favour of appellants, his sons, vide gift deed, dated 23‑1‑1986, the mutation of which has been sanctioned in the names of appellants on 12‑2‑1986, whereas the gift‑deed in favour of respondents 1 to 6 by Aziz‑ur‑Rehman was executed on 3‑2‑1986. The above fact also leads to' the conclusion that the parties are well aware of their shares in the suit land. 13 For the aforestated reasons, finding no force in this appeal, we hereby dismiss it and uphold the judgments and decrees of the High Court and the District Judge. The suit filed by plaintiff‑appellants in the trial Court shall be dismissed as a whole, without any order as to costs. H.B.T./361/SC(AJ`&K) Appeal dismissed.. '.