2006 PLP 1054 (MLD)

MIAN HAMID FAROOQ, J.

Zulfiqar Ali and others, the petitioners/defendants, through the filing of the present revision petition, have called in question judgment and decree dated 15-7-1982, whereby the learned Additional District Judge accepted the appeal, filed by the respondent No.1, and set aside the judgment and decree dated 31-5-1980, passed by the learned trial Court, through which it dismissed the suit for declaration filed by the respondent No. 1.

2. Precisely stated the facts of the case are that Gulzar Ahmad, respondent No.1, filed a suit for declaration, against the petitioners, in respect of suit-land measuring 16 Kanals, 5 Marlas, elaborately described in the plaint, claiming therein that the suit-land was gifted in his favour by his paternal aunt (Phuphi), namely, Mst. Sahib Bibi, through an oral gift and the possession of the land was delivered to him. It was asserted in the plaint that the oral gift was also reduced into writing in the shape of argument dated 18-7-1972 (Exh.P.1), but on account of death of Sahib Bibi, the same could not be registered. After the death of Sahib Bibi, inheritance mutation was attested in favour of her husband and brothers, one of whom was the father of respondent No.1. Khuda Bakhsh, father of respondent No.1, did not contest the suit while the petitioners resisted the suit by way of filing the written statement, inter alia, denying the alleged transaction of oral gift and the execution of the agreement dated 18-7-1972 and pleading therein that the agreement is a forged document and that in the presence of the legal heirs of Sahib Bibi, question of gifting the property in favour of respondent No.1 does not arise. The learned trial Court framed the issues, recorded the evidence of the parties and ultimately dismissed the suit vide judgment and decree dated 31-5-1980. The respondent No.1 filed an appeal, which was allowed by the learned Additional District Judge' vide judgment and decree dated 19-7,-1982, hence the present revision petition.

3. The learned counsel for the petitioners has contended that although the certified copies of judgment and decree of trial Court were ready for delivery on 15-6-1980 the respondent No.1 obtained the 'same on 17-6-1980 and therefore, his appeal, filed on 17-7-1980, before the District Judge, was barred by time. On merits, his contention is that Exh.P.1 is an unregistered document, therefore, under the law, it does not create any tight, title or interest in the immovable property. He has further submitted that the petitioners are in possession of the land in question, therefore, the respondent No.1 cannot claim the oral gift. He has added that all the witnesses produced by the plaintiff are interested witnesses. Conversely, the learned counsel for the respondent has submitted that the respondent No.1's appeal was within time. He has added that the land in question was gifted in favour of respondent No.1, through an oral gift, and subsequently in acknowledgement of the said oral gift, the agreement dated 18-7-1972 (Exh.P.1) was executed inasmuch as the possession of the land in question was also delivered to the respondent No.1. He has added that acknowledgement of gift is not a compulsorily registrable document under the Registration Act.

4. Firstly adverting to the question, as to whether the respondent No.1's appeal before the learned Additional District Judge was within time. The suit was dismissed on 31-5-1980, the respondent No.1 filed an application for obtaining the certified copy on 1-6-1980, which was ready for delivery on 15-6-1980, the appellant obtained the same on 17-6-1980 and the appeal was presented on 17-7-1980. The plea of both the learned counsel is that if the limitation period is taken from the date of preparation of the certified copy, the same is barred by one day and if it is computed from the date of delivery, it is within time. It has not been proved on record that after the preparation of certified copies, copying agency issued any notice to the respondent No.1 regarding the readiness of certified copies. In view whereof to my mind, the respondent No.1 was entitled for the period, consumed in obtaining the certified copy of the judgment and decree of the learned trial Court from the date of the application till the date of delivery, for filing first appeal. The findings of the learned Additional District Judge, to that extent, are maintained and it is held that the appeal filed by the respondent No.1 before the learned Additional District Judge was within time.

5. Upon the examination of the available record, I find that the case initially set up by the respondent No.1 in the plaint, is that Mst. Sahib Bibi, out of love and affection, transferred the disputed property in his favour through an oral gift and the possession of the land in question was also delivered to him, which oral gift was subsequently reduced into writing in the shape of agreement dated 18-7-1972 (Exh.P.1). Now the question arises as to whether before the alleged execution of the agreement dated 18-7-1972, the respondent No.1/plaintiff has been able to prove the transaction of oral gift through the production of reliable evidence and that in fact Mst. Sahib Bibi gifted the land in question through oral gift. Upon the examination of the evidence on record, I find that P. W .1, P. W .2 and P. W. 3 did not depose about the oral gift and only stated regarding the execution of Exh. P.1. Only P.W.4 and the plaintiff stated about the alleged oral gift. Upon the examination of the total available evidence on record, I am of the view that the respondent No.1 has not succeeded in establishing that the oral gift was made by Sahib Bibi in his favour. Now turning to the question of possession qua the land in question. Perusal of the statement of the plaintiff, who appeared as P.W.5, manifests that he admitted that he is not in possession of the total suit-land and that a portion of the suit-land is in occupation of Atta Muhammad and another portion is in possession of the petitioners. In the light of the statement of respondent No.1, it is proved that even according to the stance of respondent No.1, after the transaction of alleged oral gift, possession of the total suit-land was not delivered to him. In view whereof, the inseparable competent of a valid gift under the Islamic Law viz. the possession is comprehensively lacking in the instant case. When the three ingredients of oral gift under Islamic Law i.e., offer, acceptance and deliver of possession are not present, admittedly, it cannot be said that the oral gift is complete. In the judgment, passed by the first appellate Court, on which the total reliance has been placed by the learned counsel for the respondent No.1, the factum/transaction of oral gift has completely been ignored and the learned Additional District Judge while solely relying upon Exh.P.1 has decreed respondent No.1's suit. The judgment passed by the learned Additional District Judge is a complete departure from the initial stance taken by the respondent No.1 in his plaint. In the above backdrop, I am of the view that the plaintiff/respondent No.1, has not been able to prove that Mst. Sahib Bibi made a valid oral gift in his favour and that the possession of the total land was delivered to him. Now coming to Exh.P.1. upon the perusal of contents of Exh.P.1. I find that it doe not refer to any past transaction regarding the alleged oral gift, as canvassed by the learned counsel for the respondent No.1. The operative portion of this agreement is that Sahib Khatoon has gifted the property to Gulzar Ahmad and that Gulzar Ahmad is entitled/competent to get the gift deed executed from Sahib Khatoon. Contents of the agreement, do not show that it was written in acknowledgement of a previous transaction, thus it can neither be held nor legitimately argued that this agreement is an acknowledgement of the past transaction. The entire thrust pf the evidence, produced by the respondent No.1, is towards the direction that the agreement Exh.P.1 was executed by Mst. Sahib Khatoon. As noted above, P.W.1, P.W.2 and P.W.3 and the plaintiff stated that the agreement Exh.P.1 was executed by Mst. Sahib Khatoon. Even if it is presumed that the said agreement was, in fact, executed by Mst. Sahib Khatoon, this document was compulsorily registrable as provided under section 17(a) of the Registration Act. As the said document was not registered, as required under the law, therefore, under section 49 of the Registration Act, it does not create or extinguish any right, title or interest in the immovable property. In view whereof, it cannot be claimed by the respondent No.1 that the suit-land was gifted to him through agreement dated 18-7-1972.

7. In the above perspective, I have examined both the judgments and find that the findings rendered by the learned Civil Judge are not only in consonance with the record of the case but the same are also in accordance with the law on the subject. On the other hand, the learned Additional District Judge has completely misdirected himself and deeming Exh.P.1 as a proved document No.1 through Exh.P.1. The findings of the learned Additional District Judge, except on the question of the limitation, are set aside and the findings of the learned trial Court are restored. In the present set of circumstances, I am of the considered view that the learned first appellate Court, while rendering the impugned judgment, has committed illegality and material irregularity, thus justifying the invocation of the revisional jurisdiction by this Court. In view whereof, the impugned judgment cannot sustain and I am constrained to set aside the same.

8. Upshot of the above discussion is that the present revision petition is allowed and the impugned judgment and decree dated 15-7-1982, passed by the learned Additional District Judge is set aside (except the findings about limitation) with no order as to costs. Resultantly, the judgment and decree dated 31-5-1980, passed by the learned trial Court is ordered to be restored and respondent No.1's suit stands dismissed. M.I./Z-14/L Revision accepted.