2018 PLP 49 (YLRN)

MUHAMMAD ALAM, J.

Petitioners have challenged judgment/ decree dated 10/04/2006 of the Additional District Judge Ghizer, passed in C.F.A. No.09/2005, whereby, the learned first appellate court dismissed the appeal and maintained the judgment/order dated 25-04-2005, passed by the learned Civil Judge Punial/Ishkoman, in Civil Suit No.38/1999.

2. Through judgment/order dated 19-09-2013, I had passed the following order on this petition:-- 6. "I, therefore, set aside the impugned order dated 10-04-2006, passed by the first appellate court, in C.F.A. No.09/2005, as well as order dated 25-04-2005 of the learned trial court and direct for impleading Provincial Govern-ment of Gilgit-Baltistan as well as Deputy Commissioner/District Collector Ghizer as contesting defendants. The learned trial court is further directed to obtain written statements of the newly added defendants, then in the light of the same, frame additional issues if so needed and for fresh trial of the suit. Case remanded to trial court for de-novo trial in the light of above findings. Parties to bear their own costs. File be consigned to record." On appeal of Syed Faiz Ali Shah etc. (respondent No.2 of this petition), the learned Supreme Appellate Court Gilgit-Baltistan passed the following order:-- "The upshot of the above discussion, is that the petition for leave to appeal is converted into appeal and the impugned judgment is set aside, the judgments and decrees passed by the learned Civil Judge and learned District Judge are restored. The case is remanded to the learned Chief Court for adjudicating the Revision petition submitted before, and adjudicate the same on merits between the parties without being prejudice by this judgment in regard to determination of the rights of the parties. This judgment is announced today in open Court in the presence of the parties/counsel."

3. In plaint of the suit, petitioners/plaintiffs averred that suit land is their ancestral property and defendants contested the suit through their separate written statements. Gist of the defense is that suit land is common property of villages Gahkuch Bala and Paeen, who have gifted the same to defendants No.2 and 3 (respondents No.2 and 3) through gift deed Exh.D/1 dated 09-10-1975.

4. I have heard learned counsel for parties and have gone through the material available on file. A very academic question, i.e., whether suit/land is property of either of the parties or the same is government property, came under discussion despite the fact that through their judgment, the Hon'ble Supreme Appellate Court Gilgit-Baltistan opined as reproduced above. I had to go through the evidence of parties to come to a correct conclusion. I have perused the evidence of parties. As has been remarked above, petitioners/plaintiffs were bound to establish that suit land is part of their ancestral landed properties, but I did not find any evidence showing that the same is or remained part of ancestral property of petitioners/plaintiffs. Likewise, respondents were bound to establish that suit land belonged to respondent No.1, who transferred the same to respondents Nos.2 and 3, through gift deed Exh.D/1. From plain perusal of contents of written statements, it is evident that all the respondents, except respondent No.4, have clearly averred that suit land was common property of residents of Gahkuch Bala and Paeen, who gifted the same to respondents Nos.2 and

3. This kind of defense of the respondents/defendants could be analyzed in two ways, firstly, accepting the title of the respondent/ defendant No.1, for arguments sake, as correct. In that case, Exh.D/1 can be accepted correct only if the same is executed by all the people of respondent No.1 .In that case Exh.D/1 could be accepted correct only if all the residents of the said two villages, including minors and insane persons, joined and consented for executing Exh.D/1. In the case in hand, admittedly ladies, all minors and insane persons of the said two villages have neither joined Exh.D/1 nor have consented for execution of Exh.D/1. File does not contain any evidence showing consent of all the said persons. So I hold that Exh.D/1 cannot be accepted a correct gift deed and the same is fit to be cancelled. Secondly, respondent No.1 was bound to establish his title to the suit land and then only could transfer the same to defendants Nos. 2 and 3 through Exh.D/1. I do not find any evidence showing title of defendant No.1 to the suit land, therefore, also Exh.D/1 is wrong and cannot be relied upon as evidence in proof of title of respondent No.1 to the suit land. In these circumstances, defendant No.1 could not transfer the suit land to rest of the respondents/defendants or any other person. In this view of the situation, defendants Nos.2 and 3 also failed to establish their title to the suit land. Result is that the impugned judgment and the judgment/order of the trial court are result of misreading of the evidence and findings of the two courts below are wrong. Anyhow, as petitioners/ plaintiffs have also failed to establish their title to suit land, therefore, this petition also merited dismissal. A very important aspect of the case worth mentioning is that non proof of title of petitioner/ plaintiff to the suit land does never mean proof of title of contesting respondents to the suit land.

5. In view of above circumstances, I hold that this petition is fit to be dismissed. Petition dismissed. This file be consigned to record. ZC/43/GB Revision dismissed.