2016 PLP 68 (CLCN)

MAHMOOD AHMAD BHATTI, J.

This revision petition is directed against the judgments and decrees dated 11.3.2003 and 12.09.2007 passed by the learned Civil Judge, Daska and an Additional District Judge, Daska, respectively, whereby suit for declaration instituted by the petitioner was dismissed and an appeal preferred thereagainst was dismissed as well.

2. Concisely put, the facts are that Muhammad Sadiq, respondent No.2 and the petitioner are real brothers, whereas Muhammad Mansha (minor), respondent No.1 is the son of respondent No.2. The petitioner/plaintiff instituted a suit for declaration and cancellation of instruments as well as for perpetual injunction, contending therein that he was owner of agricultural land measuring 3 Kanals, 2 Marlas, comprising khewat Nos. 212, 213, 214 and khatauni Nos. 370 to 377, situated in the Revenue Estate Malkhanwala, Tehsil Daska, District Sialkot. It was further averred in the plaint that he was unmarried, and his brother, Muhammad Sadiq, defendant/respondent No.2 asked him to accompany him to the Tehsil Office, Daska for obtaining loan. He was told that this money was required to bear and cover the expenses of his marriage. Taking advantage of his simplicity and ignorance, Muhammad Sadiq got the suit land transferred in the name of his minor son, Muhammad Mansha, pretending and depicting it as a gift on his part. The disputed mutation of gift No.1186 was attested on 08.03.1997. As soon as he learnt of the fraud perpetrated upon him and the deception carried out by Muhammad Sadiq, he instituted the suit on 24.04.1999, seeking a declaration that he never made gift of the suit land to Muhammad Mansha and that the mutation in question was the outcome of fraud and misrepresentation. It was prayed by him that he be declared owner of the suit land as before.

3. Muhammad Sadiq, defendant No.2 filed written statement. It was insisted by him that the petitioner/plaintiff had made a gift of the suit land to his nephew/bhatija, out of love and of his own volition, and he stood estopped to challenge it afterwards.

4. The divergent pleadings of the parties gave rise to the following ISSUES:-

1. Whether the plaintiff is owner in possession of the disputed property and the gift mutation No.1186 dated 08.03.1997 is illegal, void, against law and facts, based on fraud, misrepresentation and as such is ineffective against the rights of the plaintiff ? OPP.

2. Whether the suit is within limitation? OPP.

3. Whether the suit is hit by the principles of estoppel and waiver? OPD

4. Whether the suit is not maintainable in its instant form? OPD

5. Whether the disputed property was transferred by the plaintiff with his free will and consent? OPD

6. Whether the plaintiff has no cause of action and locus standi to file this suit? OPD.

7. Relief.

5. Following the framing of the above-mentioned issues, both the parties to the suit led pro and contra evidence in support of their respective pleas. As it is, the learned trial Court proceeded to dismiss the suit of the petitioner vide judgment and decree dated 11.03.2003. Feeling aggrieved, the petitioner preferred an appeal which met the same fate and was dismissed vide judgment and decree dated 12.09.2007 passed by an Additional District Judge, Daska, District Sialkot. Hence, this revision petition.

6. In support of this petition, learned counsel for the petitioner has contended that both the judgments and decrees passed by the learned Courts below are the outcome of misreading and non-reading of evidence. It is urged by him that the impugned mutation of gift is the result of fraud and misrepresentation. Even otherwise, in the absence of delivery of possession to the donee, a gift cannot be said to be complete. He has further argued that a valid gift cannot be made from a joint khewat. He has made the impassioned plea for the setting aside of the impugned judgments and decrees. Otherwise, the petitioner would be constrained to live in penury, for he has had no means of living other than the suit land.

7. Conversely, learned counsel for the respondents has half-heartedly and feebly defended the impugned judgments and decrees.

8. I have heard the learned counsel for the parties at some length and gone through the record appended to the revision petition with their assistance.

9. True, the petitioner did not examine any witness in support of the case set up by him, confining himself to his own testimony as P.W.1. However, he denied all the suggestions put to him that he had made gift of the suit land to his nephew, Muhammad Mansha. It was maintained by him that his brother had committed fraud upon him. Muhammad Sadiq, father of the minor and the alleged perpetrator of fraud examined Ghulam Sarwar, Lumberdar as D.W.1, Muhammad Yousaf as D.W.3, Maqbool Ahmad, Record Keeper Sadar Qanongo Office as D.W.4, Muhammad Haroon, Patwari Halqa as D.W.5, Zubiar Butt as D.W.6 and he himself appeared as D.W.2. It is of utmost importance that Ghulam Sarwar Lumberdar (D.W.1) stated in examination-in-chief that Sadiq, father of the minor donee had stated before the Revenue Officer that so long as the plaintiff was alive, he would continue to cultivate the land. He was corroborated by Muhammad Yousaf (D.W.3), who deposed in cross-examination that Sadiq told the plaintiff that the land would remain in his possession in his lifetime. The depositions of these two witnesses produced by the defendant himself knocked the bottom out of his case. It is well-settled law that a party is bound by the evidence of the witness produced by it. In this respect reference may well be made to the judgments reported as 'Bakht Baidar v. Naik Muhammad' (2004 MLD 341) and 'Hassan Din v. Manzoor Hussain' (2010 SCMR 810). It stands established from the depositions of his own witnesses that the plaintiff never delivered possession to the donee or his father for that matter. To state the obvious, possession is the most important constituent to constitute a valid gift. The remaining two ingredients, namely, offer and acceptance of a gift would pale into insignificance in comparison to the non-delivery of possession to make a gift valid. It has not been denied that the donor is an illiterate and this is also borne out by his purported thumb impression on the mutation of gift, Exh.D.1.

10. No doubt, High Court forbears from interfering with the concurrent findings recorded by the learned Courts below, but it is equally true that when the conclusions arrived at by them are not in consonance with the record or the findings are recorded in disregard of the law, they cannot be deemed to be sacrosanct. As underscored in the preceding paragraph, the defendants/respondents have utterly failed to prove that possession of the suit land was ever delivered to the minor donee or his father for that matter. This being so, the very basis of their claim has vanished into thin air. In the circumstances, I would be failing in my duty not to overturn those findings. In recent years, the Hon'ble Supreme Court of Pakistan appears to have approved of the approach of the High Court in reversing the concurrent findings, when they are found to be suffering from misreading or non-reading of evidence or a jurisdictional error. If any authority is required, reference may well be made to the judgments reported as 'Muhammad Akhtar v. Mst. Manna and 3 others' (2001 SCMR 1700), 'Ghulam Muhammad v. Ghulam Ali' (2004 SCMR 1001), 'Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) (2008 SCMR 428) and 'Lal Khan v. Muhammad Yousaf' (PLD 2011 SC 657).

11. For what has been stated above, this revision petition is allowed by setting aside the impugned judgments and decrees dated 11.03.2003 and 12.09.2007 passed by the learned Courts below, with the result that the impugned mutation of gift No.1186 dated 08.03.1997 is declared invalid, void and ineffective upon the rights of the petitioner/plaintiff with regard to the suit land. The revenue record shall be changed and corrected accordingly. Consequently, the suit of the plaintiff is decreed as prayed for. SL/M-309/L Revision allowed.