2020 PLP 896 (MLD)

ABDUL HAMEED BALOCH, J.

Through this judgment I intends to dispose of above revision petition filed by the petitioners against the judgment and decree (impugned judgment and decree) dated 29th May, 2014 passed by Qazi Dera Murad Jamali, (trial court), whereby the suit of the respondents Nos. 1 to 4/ plaintiffs was decreed and against the judgment and decree (impugned judgment and decree) dated 26th May, 2015 passed by Majlis-e-Shoora Naseerabad at Dera Murad Jamali, whereby the appeal filed by the petitioners was dismissed.

2. The facts of the case were that the respondents Nos. 1 to 4/ plaintiffs filed a suit for declaration, cancellation of mutation entries and permanent injunction against the petitioners/defendants and proforma respondents Nos. 5 to 8, in respect of land bearing khasra Nos. 465, 466, 467, 468, 469, 470, 471, 473, 474, 475, 476, 477, 478, 479, 495, 496, 497, 500, 501 and 505, consisting of 20 Qitas, measuring 493 rod 16 poles, situated at Mouza Mandar, Tappa Shoora Durabi, Tehsil Chattar, District Naseerabad (suit property), with the following prayer.

3. The defendants Nos. 1 and 6 contested the suit on-legal as well as factual grounds by filing written statement and prayed for dismissal of the suit.

4. The defendants Nos. 2, 3 and 5 also contested the suit on legal as well as factual grounds by filing their joint written statement and prayed for dismissal of the suit.

5. The defendant No. 7 filed separate written statement and prayed for dismissal of the suit.

6. After receiving pleadings of the parties the learned trial court framed issues on 13th August, 2011, on which both the parties led their respective evidence and on conclusion of the same the learned trial court vide impugned judgment and decree dated 29th May, 2014, decreed the suit of the respondents/plaintiffs. The petitioners being aggrieved of the same filed appeal before Majlis-e-Shoora Naseerabad at Dera Murad Jamali, but the appeal was dismissed vide impugned judgment and decree dated 26th May, 2015, hence this revision petition before this court.

7. Heard learned counsel for the parties and perused the material available on the record. The record transpires that respondents Nos. 1 to 4 filed the suit with the contention that they have never gifted the suit property to defendant No.

1. The defendant No. 6 being real brother had looked after the suit property. He with mala fide intention secretly and behind their (plaintiffs') back transferred the suit property in the name of his son (defendant No. 1) on the basis of gift in 1994. Whereafter, the defendant No. 1 had sold the suit property to defendants Nos. 2, 3 and

5. As soon as the plaintiffs got knowledge of the fraudulent act on part of the defendant No. 6 filed the instant suit through their brother Nisar Ahmed as attorney on 2nd April, 2011.

8. The learned counsel for the petitioners contended that they have purchased the suit property from respondent No. 7 in sum of rupees two million. The question is whether the respondent No. 7 had title to sale out the suit property, from where he got the title. The respondent No. 8 admitted that the suit property was mutated in the names of respondents Nos. 1 to 4/plaintiffs in the revenue record. He has taken the plea that the plaintiffs had voluntarily gifted the suit property and thereafter, transferred in his name in the record of right. The burden of proof lies on the defendant/ respondent No. 7 to prove when the plaintiffs had orally gifted the suit property. The evidence of defendants is silent in this regard. DW-3 exhibited the mutation of suit property transferred in the name of respondent No. 3 as Ex: D/2-D. It transpires that no signatures of plaintiffs available on Ex: D/2-D. Even the defendant No. 6/respondent No. 8 admitted that the plaintiffs were not appeared before the Revenue Authority at the time of transfer.

9. When a person claimed gift from lady; whereafter, the lady denied the gift, the burden of proof lies on the beneficiary to prove the same. It was held in the case of Naveed Akram v. Muhammad Anwar 2019 SCMR 1095: "Further, transfer of the property by way of gift in favour of his sons by Muhammad Akram was obviously a device to deprive the Respondent of his right that has accrued to him by reason of execution of the agreement to sell and payment of earnest money. Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further, no witness in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is insufficient to establish a valid gift which could have the effect of defeating the rights of the Respondent."

10. The record further transpires that the alleged transfer was made fraudulently in the record of right without knowledge of the plaintiffs. When an act done for nefarious design the legal sanctity could not attach to such act. The defendant No. 6 failed to prove that the plaintiffs had gifted the suit property to his son (defendant No. 1). Where an act was done illegally the limitation cannot run.

11. The statements of the witnesses of the plaintiffs/ respondents Nos. 1 to 4 were recorded. The material portion of their statements was not denied. There could not be two views. If the material portion of statement of witness was not denied; it deemed to be admitted. Reliance in this regard is placed on the case of Jan Muhammad v. Mulla Abdul Rehman 1999 CLC 266.

12. While exercising revisional jurisdiction by this Court it is not permissible to reopen or dilate upon merit of the case. While exercising revisional jurisdiction this court has to confine only to law point involved in the matter or any portion of evidence which was overlooked by the courts below. Can be interfered only when the conclusion drawn by the courts below were alleged to be unlawful, based on misreading or non-reading of evidence, perverse and fanciful. The petitioners have failed to point out any illegality or irregularity in the impugned judgments. The honorable Supreme Court held in the case of Kanwal Nain v. Fateh Khan PLD 1983 SC 53 that concurrent findings of two courts below are not open to interference in limited revisional jurisdiction of the High Court, but it may be to some extent erroneous on point of fact and law or both.

13. The learned counsel for the petitioners has failed to point out any infringement of law, any illegality or irregularity in the impugned judgments and decrees warranting interference by this court. As such both the impugned judgments and decrees dated 29th May, 2014 and 29th May, 2015 passed by Qazi Dera Murad Jamali and Majlis-e-Shoora Naseerabad at Dera Murad Jamali, respectively are upheld and petition being devoid of merit is dismissed with no orders as to cost. ZC/170/Bal. Revision dismissed.