1980 PLP 2155 (CLC)

(8) Whether the present suit is barred by the principle of res judicata 'O. P. D. (9) Relief.

3. The learned Civil Judge at regards the main controversy as td whether the donor had made any gift or not came to the conclusion that the donor had executed the gift deed marked as Exh. DW. 90/1 and that the gift had been completed by delivery of possession. It was also held that the donor had failed to prove that the gift had been completed by delivery of possession and as such the donor was competent to revoke it. The suit was dismissed by the judgment of the learned trial Court dated the 15th April, 1974. Mst. Fateh Bibi filed an appeal against the aforesaid judgment and decree. During the pendency of rhe appeal Mst. Fateh Bibi died and her brother Malik Muhammad Khan, MV, Sahib Khatoon and Mst. Fateh Khatoon were brought on record as her legal representatives. Malik Muhammad Khan also died during the pendency of the appeal with the result that Malik Najeebullah, Malik ismat Ullah, Malik Inayat Ullah Khan, Mst. Um-e-Habiba and Mst. Sahib Khatoon were impleaded as legal representatives. This appeal was dismissed by the judgment of the learned District Judge dated the 17th July, 1978. Before the learned District Judge the only question raised was regarding the validity of the gift of the property in suit in favour of the donee and as to whether the gift was complete by the delivery of possession and this is the question which has also been con vassed in the present appeal. The learned District Judge in relation to the above question affirmed that the execution? of the gift deed Exh. DW. 90/1, dated 5th February, 1949 had been duly proved and that the recital of gift deed witnessed the delivery of possession. The gift deed had a reference to an. entry in the mutation register marked as Exh. P. 38 which was entered on 10th December, 1948 and attested by the orders of the Revenue Officer after the admission made by the donor before the Local Commissioner as read the execution of the gift deed and delivery of possession. The learned District Judge also relied on a joint written statement (Exh. DW. 98,11) filed by the donor and the donee in a suit filed by one Malik Muhammad Khan a collateral of the husband of Mst. Fateh Bibi in which the factum of the execution of the gift deed was admitted. This suit had been ordered to be dismissed throughout. The original gift deed (Exh. DW. 9011) was produced in the proceedings. The suit filed by Malik Muhammad Khan on 26th April, 1949 dismissed vide judgment dated 1st October, 1951 (Exh. D. 98) was not collusive and was a genuinely contested case and it was further held that in any case it would operate as estoppel against nfst. hateh Bibi as donor. The thumb-marks on the gift deed (hxh. DW. 90/1) had been tampered with and after examining the entire evidence on record the inference drawn was against the appellants. The learned District Judge further held that the delivery of possession was supported from the entries of the khasra girdawaris for tine period from 12th October, 1949 to 2nd October, 1952, (Exh. D. 102). 'she tenants produced by the donor were not found to be truthful witnesses. As regards the house in dispute the possession of the house had been found to be delivered and the evidence produced in this behalf was believed. It was further observed that there was no evidence produced to show that the gift deed was a forged document in order to prove any particulars of fraud which bad been given in the plaint.

4. The learned counsel for the appellants has raised the following contentions ; (i) That the lower appellate Court has tailed to examine the important documents placed on record. As for example Exh. P./l, Exh. P./2, Exh. P./3 to Exh. P.

33. Exh. P. 37 and Exh. P, 38 Exh. P. 39 to Exh, P. 50, Exh. P. 51, Exh. P.

52. Exh. P.W. 43/1; (ii) That several documents though trot exhibited could be looked into, on the record marked `A' to 'G. Reliance in this behalf had been placed on Hakim Khan v. Aurungzeb and another P L D 1975 Lah. 1170. (iii) That several documents had been misread ; (iv) That the formalities of law regarding the proof of the admissions and utilising the same have not been complied with ; (v) That even if the possession had been taken by the donee it was without the permission of the donor and therefore of no legal effect (vi) That the findings as regard the tampering with the deed is against law ; as being based on the memory of the judge and oft the statement of the :earned counsel for the parties which was nut Permissible. Point No, 1

5. The learned counsel for the respondents has argued that this Court was not competent to interfere with the judgment of lower appellate Court on the ground of failure to consider the material evidence if such evidence had not been brought to the notice of the learned lower appellate Court or if it had not been relied upon before the said Court. It was further contended that interference was justified in second appeal only on the ground that the judgment does not deal with all the evidence on record or all the circumstances relied upon by the Court of the first instance. According to the learned counsel there is no assertion that the; documents mentioned in the contentions of the leaned counsel for the appellants were relied upon and referred to before the lower appellate Court and the same have been ignored in spite of such reliance and reference. In the absence of any such assertion even if some evidence on record had not been considered that w-old not vitiate the judgment of the lower appellate Court. The reason why the documents mentioned under point No. 1 above were not considered by the learned lower appellate Court has been explained. It is stated that the learned trial Court had discussed these documents under issue No. I and this issue was not challenged before the lower appellate Court as the parties contested the appeal on issue No. 4 only as would be evident from the tenor of the judgment of the lower appellate Court. The documents mentioned under point No. 1 consisted of statements of the tenants before the revenue authorities and ejectment orders obtained by one of the respondents. Some of these tenants were produced by the original plaintiff as witnesses and the effect of these documents along with the statements was duly examined by the learned trial Court. Now the effect of not mentioning of certain documents may be examined.

6. The grounds on which the learned District Judge had dismissed the appeal has already been re-capitulated above. However, the perusal of the judgment of the learned lower appellate Court would show that for. the purpose of delivery of possession reliance bad been placed in the first' instance in the recital of the gift deed dated 5th February 1949 executed by Mst. Fateh Bibi (Exh. D. W. 90/1), and also on the mutation (Exh. P. 38) entered on 10th. December 1948 in respect of the agricultural land entered with the Patwari and attested after the registration of the gift deed. The fact that the endorsement on the gift deed was thumb marked before the Registrar had also beers taken into consideration. The attestation of the mutation was also finalised after the donor had made a statement as regard the factum of gift and delivery of possession. 'This mutation had also been challenged by one of the collaterals and the question of non-delivery of possession was repelled by the Revenue Officer. Reliance had also been placed on r a joint written statement in the suit filed by one Malik Muhammad khan a collateral of the husband of Mst. Fateh Bibi. The appeal in the said suit had been dismissed by this Court. The original gift deed had been produced in these proceedings. The circumstance pleaded by the appellants that the earlier suit was collusive was repelled for very sound reasons. The donor had not only full knowledge of the gift but had also supported it in the Court. To my mind this would have been sufficient to dispel the contention of the donor denying the factum of the gift or claiming that she came to know of the gift only in 1958. In paragraph 35 the learned district judge had there fore rightly come to the conclusion by making reference to the evidence led at the trial that the donor had -done all that lay in her power to place the donee in possession of the suit property. In paragraph 38 the learned District Judge has considered the relevant evidence in order to justify his concurrence on the question of the factum of the delivery of possession, P.W. 1 to P.W. 6 and P.W. 29 to P.W. 33 are witnesses who claimed to be the tenants of the suit property under the plaintiff. The witnesses who had appeared as tenants stated that they cultivated different pieces of land as tenants and that they pay shares of the produce to the plaintiff or her agents. P. W. 27 and P. W. 28 are kardars of the original plaintiff who deposed that had been receiving share of the produce from the tenants on behalf of the plaintiff P.W. 35 proved the statement recorded by the witnesses as Exh. P. 3 to P.

32. Exh. P.1 is the application submitted by the original plaintiff for the correction of khasar girdawnri on the application of the original plaintiff. Exh. P. 3 to Exh. P.33 are copies of the statements of the tenants recorded on 12th May, 1962 and 20th May 1962. Exh. P. 33 is the report of the Colony Naib Tehsildar made on 22nd June, 1962. Exh. P. 34 to P. 37 are the copies of the Khasra girdawaris. Exh. P. 38 is Khatuui Killa bandi for the year 1949-60. Exh. P. 39 to Exh. P. 50 are copies of ejectment orders passed by the Tehsildar on 26th November, 1962 in favour of Saifullah against different persons. The learned trial Court had discussed all these documents under issue No. 1 and were dealt with at length. After discussing the entire evidence as regard the possession the learned trial Court came to the following conclusion:

From the oral and documentary evidence produced by the parties it is proved that the plaintiff was not in possession of the suit property at the time of bringing the suit, rather it is proved that the defendants were in possession of the suit land at the time of bringing the suit. Since the plaintiff was not in possession of the suit property when the suit was brought it was incumbent for her to have prayed for possession of the suit land. So a suit for declaration and permanent injunction without relief possession is not proper. The suit is hit by section 42 of Specific Relief Act.

7. As has rightly been pointed out by the learned counsel for the respondents, the fi ding on Issue No. 1 was neither challenged by the appellant before the learned District Judge nor the same has been challenged in this Court. It was for this reason and rightly so that the lower appellant Court did not consider the documents now referred to by the learned counsel for the appellants as stated under point No.

1. The effect of the documents was rightly considered by the learned trial Court in relation to Issue No.

1. Reliance may be placed on a judgment repor ted as Rashid Lal Chakraborty arid others v. Hingul Khan (P L D 1967 Dacca 741) wherein it was Held that undoubtedly the lower appellate Court should take into consideration the entire evidence in the case, but it is not essential that it should refer to every item of evidence of document considered by the trial Court, The judgment of the lower appellate Court cannot be consi dered bad simply on account of the fact that it does not comply with the requirements of Order XLI, rule 31 of the Code of Civil Procedure. If there has been a substantial consideration of all the relevant points or questions required to be determined in the suit or appeal, there is sub stantial compliance with the provisions of the above rule. To my mind the said judgment lays downs a correct principle of law. 8, Reliance may also be placed on Secretary of Stare v. Ramaswaram Devasthanam and others (AIR 1934 P C 112) wherein examining the scope of S. 100 of the Civil Procedure Code it was held that the high Court bas no jurisdiction to reverse the findings of fact arrived at by tile l6wer appellate Court however erroneous, unless they are vitiated by some error of law. It was further held that the rule equally applicable to cases in which the findings of the lower appellate Court are based on inferences drawn from documents exhibited in evidence.

9. In Mt. Akhtari Begum v. Allah Jawaya and others (A I R 1936 Lah. 543) it was held that there was no authority which laid down that the lower appellate Court before recording a finding of fact should refer to each and every document or piece of evidence, on the record while recordings its finding. It should be assumed that all the relevant evidence was brought to the notice of the Judge and he had it in his mind when he delivered his judg ment,

10. On the other hand the learned counsel for the respondents has relied on a judgment reported as Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi (P L D 1975 Lah. 1276) This judgment does not deal with the point under consideration. In this case it was held that a finding of fact by the first Court of Appeal not based ors any proper evidence or where evidence is misread or misrepresented such a finding even one of fact was vitiated and could be interfered and the second appellate Court was entitled to review the finding. There is no dispute about the proposition. The question involved in the above case was the effect of not considering certain documents an record which had been considered under issue No. 1 and not agitated before the lower appellate Court. Point No :2

11. The contention of the learned counsel for the appellants that the documents marked `A` to G ought to have been puked into in spite of the fact that they had not been exhibited. Reliance in this connection had been placed on Hakim Khan v. Aurargzeb (P L D 1975 Lah. 1170). This judgment is not applicable to the facts of the present case. In this case the documents had been exhibited by the Court but there was no endorsement on the documents as required under Order XIII, rule 4 of the Civil Procedure Code and the Judge had also failed to sign and initial the documents. It was in this connection held that a mere non-endorsement by the Judge concerned of the document did not render it inadmissible.

12. On the other hand the learned counsel for the respondents has contended that the documents marked `A' to G' v-ere not properly pro ved, as such, were not exhibited and did not form the part of the evidence. It is further pointed out that the documents were not even relied upon in the trial Court nor before the lower appellate Court. I have gone through these documents and find that even otherwise they do not in any way advance the case of the appellants. Point No. 3

13. According to the learned counsel for the appellants Exb. P. 34 in para 38 of the judgment of the lower appellate Court has been misread. It is stated that the lower appellate Court has wrongly concluded that D. Ws. I to 30, D. Ws. 35 to 37, D. Ws. 47 to D. W. 69 and D.Ws. 71 to 75 are the tenants tinder the respondents. The second instance of misread ing pointed out by the learned counsel for the appellants in Exh. D 102 being Khasra Girdawaris from 12th October 1949 to 2nd October 1952, The donee was shown in the self-cultivating possession of the entire land. The crucial period for the completion of the gift was Rabi 1949 which has been ignored from consideration by the lower appellate Court. I have gone through the paragraph 38 and 1 find that there is no misreading. The learned lower appellate Court had only stated that the defendants produced D. W. 1 to D. W. 30, D. W. 35 to D. W. 37, D. W. 49 to D. W. 69 and D. W. 71 to D. W. 75 who claimed to be the tenants of the land under the defendants. Similarly in respect of Ex. D/102 there is a correct reference to the donee even as owner in self-cultivation on the basis of Khasra Girdawaris for the period from 2nd October, 1949 to 2nd October 1952. Point No. 4 :

14. The learned counsel for the appellants has argued that the law relating to the admissions has not been correctly applied in the present case as the earlier admissions had not been put to witnesses during the cross-examination or confronted with specific portion of that statement which sought to be used as admission without complying with the proce dure as laid down in S. 145 of the Evidence Act. Reliance in this behalf was placed on Khan Muhammad Yusuf Khan Khatak v. S. M. Ayub (P L D 1973 S C 160). According to the learned counsel for the appellants Mst. Fateh Bibi, the original plaintiff, was examined through commission and was cross-examin ed but she was not confronted with her earlier admissions. The learned counsel for the respondent has pointed out that Mst. Fateh Bibi in her statement completely denied the execution of the gift deed and asserted that she came to know of the existence of such a gift alter the death of Sultan Mahmood Khan. There are suggestions in the cross-examination as to the donor having gone to Sargodha for the purpose of gift deed and also suggestion was put that the gift deed was executed at the residence of Nawab Muhammad Sher Khan. It is, therefore, concluded that in the cases of denial of execution of document Exh. D W 90/1 there was no question of confronting with the said document to Msr. Fateh Bibi. It was pure and simple question of proving the document. The contention raised has, C therefore, no legal force and the judgment of the learned Supreme Court cited by the learned counsel for the appellants is not at all applicable to the facts of the present case. Point No. 5 :

15. The learned counsel for the appellants has relied on Ashiq Hussain and another v. Ashiq Ali (1972SCMR50) and Shamshad Ali Shah and others v. Syed Hassan Shah arid others (PLD1964SC143) for the proposition that even if the donee took possession it was without the permission of the donor, and therefore, would have no effect on the authenticity of the gift. This contention has no force inasmuch as this was never the case of the original plaintiff and there is no basis brought on record for the applicability of the point raised under this head. Point No. 6 :

16. The learned counsel for the appellants has argued that the ' finding as regards the tampering with the original gift deed was based on the memory of the court, and as such wholly unjustified and that no record of the admission, had been kept by the Court. I have carefully gone through the finding of both the Courts below on this point. The assertions made are absolutely baseless. The manner in which Exh. D. W. 90/1 was sent to the Court and the conduct of the learned counsel has beets rightly commented. Qazi Sadaq Hussain, Advocate, had rightly withdrawn himself front the case as during the trial certain developments had taken place whereby he became a witness in the case. I agree with the learned counsel for the respondents that in the present case also the learned counsel for the appellants ought to have withdrawn. Both the Courts below have made correct observations in this regard and in a way have dealt with the matter rather leniently.

17. In the present appeal no ground has been made out for interfer ence in the concurrent finding of fact of both the Courts below. This appeal has no force and is, therefore, dismissed with costs. M. A. K. Appeal dismissed.