2008 PLP 270 (YLR)

MAULVI ANWARUL HAQ, J.--On 2-1-1998 the respondent No.1 filed a suit against the petitioner and the respondent No.2. In the plaint, it was stated that the last male owner of the suit property was Ghulam Haider Shah, the great grand-father of the respondent No.1 and grand-father of the petitioner No.1 (I may note here that the plaintiff-respondent is, admittedly, the son of Altaf Hussain Shah, a pre-deceased son of Amir Haider Shah). It was then stared that Ghulam Haider Shah had in his life time transferred the suit house to the said Altaf Hussain and the petitioner No.1 in equal shares delivering the eastern portion to Altaf Hussain Shah and western portion to the petitioner No.1. The original gift deed is in possession of the petitioner. Altaf Hussain retrained in possession of the gifted portion in his life time whereas after his death the respondent (a minor at the time of institution of the suit) was living with his maternal grand-father. However, the goods belonging to his father are lying there. The petitioners got the western portion also mutated in their names in the Excise and Taxation records. A decree was accordingly prayed for. In the written statement, the pedigree table was admitted as correct. The gift as pleaded was also not denied. However, it was pleaded that when his father Amir Haider Shah contracted another marriage, the petitioners purchased the remaining share and paid the money to the father of the respondent No.1 and he is now the exclusive owner. Inter alia, following issues Nos.1 and 4 were framed by the learned trial Court:

"(1) Whether the plaintiff is owner of 1/2 share of house No.137/A-B? O.P.P. (4) Whether the plaintiff's father received money to the extent of his share, if so, the suit is un proceedable?" O.P.D. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 8-7-2005. I may note here that notwithstanding the said state of pleadings, issue No.1 was found against the plaintiff-respondent on the ground that he had failed to prove the gift while under issue No.4, it was held as a fact that the petitioners have failed to lead any evidence that they purchased the share of the father of the respondent No.1. Be that as it may, the suit was dismissed. The respondent filed a first appeal which has been allowed by a learned ADJ, Mianwali, on 7-2-2006 who has passed a preliminary decree in favour of the respondent and directed the learned trial Court to pass a final decree.

2. Learned counsel for the petitioner contends that the learned trial Court had correctly dismissed the suit after holding that the gift pleaded by respondent No.1 has not been proved. According to the learned counsel, the title claimed by the respondents was relatable to gift which was not even produced.

3. I have gone through the copies of the records. As noted by me above, the relationship between the parties vis-a-vis the suit property, admittedly, owned by Ghulam Haider Shah is admitted. As noted by me above, there is no denial of the gift pleaded by the respondent No.1 in the written statement filed by the petitioners. On the other hand, the plea taken was that the share of the father of the respondent No.1 had been purchased by the petitioner No.1. It has been found as a fact by the learned trial Court and not questioned in the first appeal or in this civil revision that the petitioners failed to prove the said fact.

4. To my mind, the issue No.1 does not even arise out of the pleadings and it was only issue No.4 that was to be decided and, in fact, the issue was decided by the learned trial Court against the petitioners. The civil revision accordingly is dismissed in limine. M.H./A-217/L Revision dismissed.