1992 PLP 1314 (MLD)

SARDAR SAID MUHAMMAD KHAN, CJ. ‑‑‑This appeal has been directed against the judgment and decree of the High Court, dated 20‑3‑1990 whereby the appeal filed by the appellant, herein, was dismissed. Brief facts giving rise to the present appeal are that Muhammad Ellahi, plaintiff‑appellant, gifted away the property in dispute to Muhammad Hussain, his son, through a gift‑deed dated 6‑7‑1986. He alleged that in fact he intended to transfer the property through a gift‑deed along with a house in equal shares to Muhammad Hussain, defendant‑respondent, and his other son, Fazal Hussain, but defendant‑respondent, by practising fraud on him got the gift‑deed executed in his favour exclusively. Thus, the plaintiff‑appellant prayed that the gift‑deed may be declared as null and void; in alternative he challenged the validity of the gift‑deed on account of non‑delivery of the possession to the donee. The trial Court decreed the suit of the plaintiff‑appellant on the ground that as the gift was not accompanied by the possession, the same was null and void. So far as the issue pertaining to the fraud was concerned, the same was decided against the plaintiff‑appellant. On appeal to the District Judge, the findings of the trial Court were set aside and it was held that the possession of the suit land including the house, in fact, had been delivered to the donee and as such the gift‑deed was valid. On second appeal to the High Court, the appeal was dismissed on the ground that as the parties were residing together in the house situated on the suit land, the formal delivery of possession was not necessary; besides, the High Court also held that possession of the suit land is proved to have been delivered to the respondent‑donee. We have heard the arguments and gone through the record. During the course of arguments the proposition regarding the doctrine of `musha' and the fact as to whether the gift made in favour of a person related to the donor in prohibited degree can at all be revoked. It may be observed that the question of doctrine of `musha' and the question as to whether the gift made to a person who is related to the donor in prohibited degree is not revocable were not raised in the pleadings of any of the parties and consequently, there are no findings on the said points. The High Court, while confirming the findings of the District Judge on the question of possession, observed as under: "

10. Keeping in view the relationship of the parties, and the statement made at the Bar by the plaintiff, it has to be accepted that the parties lived together at the time of the execution of the gift. In such like situation, when the parties lived together and particularly when one of the witnesses of the donor testified that the donee took over the possession of the subject of the execution of the gift, it has to be accepted that the donor made a physical departure of the gift property at the time of its execution. Such a presumption, of course, is rebuttable. Therefore, keeping in view the factum of relationship of the parties and the age of the donor supported by the accompanying circumstances, it has to be accepted that the possession of the property was passed on to the donee in lieu of the gift." It is evident from the extract of the judgment of the High Court reproduced above that the High Court based its findings on the `statement at Bar' that the parties lived together on the premises of the suit land and, thus, formal delivery of possession was not necessary; and that the witness for the plaintiff‑appellant also testified that the possession of the suit land was delivered to the donee. We have closely perused the record and we find that both the above reasons advanced by the High Court for dismissal of the appeal of the appellant, herein, are not substantiated by the record. As no statements of the counsel of parties were recorded, we are unable to say as to what was the import of their statements, if any. The fact remains that the counsel for the appellant vehemently controverted the observations of the High Court that any such statement was made by the counsel for the appellant. The findings of the High Court that the parties were living together were forcefully assailed by the counsel for the appellant. It is an admitted fact that so far as the house in dispute is concerned, that remained in the occupation of the plaintiff‑appellant and his grandsons before and after the execution of the gift‑deed. Even the respondent, Muhammad Hussain, has admitted that he had a house in village Nagiyal which was constructed by him in `Khalsa' land. He does not state anywhere that he has ever resided along with the plaintiff‑appellant in the house in dispute. Muhammad Ellahi, plaintiff‑appellant, has also stated that he is in possession of the disputed house and lives in the same along with the children of his other son, Fazal Hussain. Similarly, Mir Alam, a witness for the plaintiff‑appellant, stated that Muhammad Hussain, defendant‑respondent, resided in his house at Nagiyal which he had constructed over the `Khalsa' land. The witness has also stated that the suit land is in possession of Muhammad Hussain, defendant‑respondent, and Fazal Hussain, the other son of the plaintiff‑appellant, in equal shares and that they have been utilizing the produce of the land which was in their respective possession exclusively. Neither Muhammad Ellahi, plaintiff‑appellant, nor Mir Alam were cross -examined challenging the truth of their assertions that the disputed house was in exclusive possession of the plaintiff‑appellant and the children of his other son, Fazal Hussain; rather Muhammad Hussain, defendant‑respondent, corroborates the statement of Muhammad Ellahi, plaintiff‑appellant, who stated that defendant‑respondent has been residing in his own house which he had constructed over `Khalsa' land. Thus, so far as the house in dispute is concerned, there is absolutely no evidence whatsoever that Muhammad Hussain, respondent, was in possession of the house or he lived in the same when the gift‑deed was executed in his favour. So far as the possession of the suit land is concerned, Muhammad Hussain, defendant‑respondent, has himself stated as a witness that half of the suit land is in his possession and the other half of the same is in the possession of the children of Fazal Hussain, the other son of the plaintiff‑appellant, Muhammad Ellahi. Mir Alam, the only witness for the plaintiff‑appellant, as has already been stated, has deposed that the suit land is in possession of Muhammad Hussain, defendant‑respondent, and the children of Fazal Hussain, the other son of the plaintiff‑appellant, in equal shares. Thus, the findings of the High Court that the possession of the suit land along with the house was delivered to the donee being contrary to the evidence on the record are not sustainable. So far as the question of doctrine of `musha' is concerned, it has been nobody's case that the gift was invalid on that score. No such plea was taken in the plaint nor the point was raised in the lower appellate Courts. The point was not even agitated by the plaintiff‑appellant in the concise statement filed by him in this Court. Similarly the question as of a person related to the donor in prohibited degree can be revoked or not, was made subject of issue in the Courts below. Thus, we need not go into the validity or otherwise of the argument on the aforesaid two points. Suffice it to say, if a point has not been raised by the parties in the Courts below nor in the appeal or concise statement filed in this Court, the same cannot be permitted to be raised for the first time in this Court. So far as the plea of fraud is concerned, there are concurrent findings of the Courts below that the same has not been proved. We see no reason to disagree with the findings of the Courts below on the point. In the light of what has been stated above, we partly accept the appeal and amend the judgments and decrees of the Courts below in terms that the gift‑deed executed by the plaintiff‑appellant is invalid to the extent of the house, and the .one‑half share of the suit land which comes to 6 Kanals 12 Marlas and 6‑1/2 Sersais is null and void against the interests of the plaintiff appellant, because the possession of the house and the one‑half of the suit land was not delivered to the donee in pursuance of the gift‑deed. AA./323/S.CA. Appeal partly accepted.