1986 PLP 623 (MLD)

(5) Whether the plaintiff is a legal representative of Mst. Channan Bibi deceased. If so what is its effect? (5‑A) Whether Mst. Channan Bibi transferred her share in the property to the defendant by way of a registered gift deed dated 3‑12‑1962. If so, to what effect? (6) If issue No. 5‑A is found in affirmative, whether the alleged gift is invalid for the reasons set out in preliminary objection No. 3 of the replication. The learned counsel for the petitioner has submitted:

‑ (i) that since the suit house was still in the compensation pool at the time of the institution of the suit, therefore, Civil Court had no jurisdiction to try the suit. He further submitted that although the learned counsel for the petitioner/ defendant had conceded this issue before the trial Court yet the objection being a law point should be considered by this Court; (ii) that on issue No.3 the evidence has been misread by the learned Courts below; (iii) that the suit house having a ready been privately partitioned cannot be re‑partitioned; (iv) that there is ample evidence to prove that Ghulam Rasool is not the legal heir of Mst. Channan Bibi and was in fact born from Mst. Ghulam Fatima the second wife of Murad Bakhsh; (v) that Mst. Channan Bibi had validly transferred the suit house to the petitioner through registered gift deed and that the findings of the trial Court on issue No.6 being dependent on the findings of issue No.5‑A, are not tenable. As against this the learned counsel for the respondent has supported the judgments of the Courts below. He maintained that the issues Nos. 3, 5 and 5‑A being the issues of fact and having been concurrently found against the petitioner/defendant, it is not a fit case for interference in the exercise of revisional powers of this Court.

3. I have considered the arguments advanced by the learned counsel for the parties with care. Ghulam Rasool plaintiff/respondent examined 5 witnesses namely, Muhammad Ibrahim, Muhammad Rafiq, Ahmad Bakhsh. Allah Din, Nabi Bakhsh and himself appeared as P.W.6. He tendered and proved documents P.1 to P.17. On the other hand the defendant examined Muhammad Yousuf, D.W.1, Allah Din, D.W.2, Abdul Qayyum D.W.3, Ghulam Akbar, D. W.4 petition‑writer, Haji Ghulam Mustafa D.W.5, Naseer Bakhsh D.W.6, Faiz Rasool D.W.7, Muhammad Siddique D.W.8 and Allah Ditta D.W.9. Since two additional issues were framed the defendant‑petitioner was given opportunity to adduce evidence on those issues and he produced 7 witnesses namely, Khushi Muhammad, Muhammad Sharif, Muhammad Rafique, Haji Abdur Rahim, Nawaz, Allah Ditta, and Jan Muhammad. He himself appeared as D.W.7. The petitioner‑defendant also tendered and proved documents D.1 to D.7. I have gone through the entire record. As far issue No.1 is concerned I find that the suit was instituted on 26‑10‑1965 whereas the P. T . D. with regard to the suit house had already been issued on 17‑7‑1962, and as such the suit, house was out of compensation pool at the time of the institution of the suit. The learned counsel for the petitioner/ defendant in his statement recorded on 12‑9‑1975 had conceded this issue. This issue was also not challenged before the learned Additional District Judge. In these' circumstances I am of the view that it does not lie in the mouth of the petitioner to challenge the jurisdiction of the Civil Court at this stage. The trial Court in the circumstances of the case was quite competent to entertain and try the suit.

4. Issue No.3 is also an issue of fact. Both the Courts below have applied their minds to the relevant evidence and given reasons in support of the conclusions arrived at by them. The learned counsel has failed to point out any misreading/non‑reading by the Courts below. I do not see any reason to interfere with the findings of the Courts below on this issue.

5. Issue No.5 is the crucial issue. This is also an issue of fact. Both the Courts below have taken into account the relevant material evidence and have given cogent reasons for believing/disbelieving the same. Ghulam Rasool respondent is admittedly the son of Murad Bakhsh the husband of Channan Bibi. The case of the plaintiff‑respondent is that there was only one wife namely, Mst. Channan Bibi and that he as well as Faiz Rasool petitioner‑defendant were born from her. As against this the plea of the petitioner‑defendant is that although Ghulam Rasool is the son of Murad Bakhsh yet he was born from Mst. Ghulam Fatima, the second wife of Murad Bakhsh. I find that D.W.5, Haii Ghulam Mustafa, a witness produced by the petitioner/ defendant himself, has categorically stated that Murad Bakhsh had only one wife namely; Mst. Channan Bibi and that Mst. Ghulam Fatima was not married with any one. Furthermore, the pedigree‑table given in the plaint P.15 and P.16 in an earlier suit between the parties also shows that Murad Bakhsh had one wife and two sons. The learned counsel has failed to point out any material misreading/non‑reading of the evidence by the Courts below. He is bound by the statement of his own witness D.W.5 Hap Ghulam Mustafa. For all these reasons I confirm the findings of the learned Courts below on issue No.5.

6. Coming to issue No. 5‑A. I find that the suit house was transferred by the Settlement Department to Murad Bakhsh. He died on 7‑6‑1960. Faiz Rasool, the petitioner and Mst. Channan Bibi filed a declaratory suit against Ghulam Rasool respondent‑plaintiff seeking declaration to the effect that they were owners of the entire suit house. Ch. Muhammad Ismail Loons, the learned Civil Judge who tried the suit determined .the shares of the parties as follows:‑ (i) Rasool Bakhsh's share = 7/16th. (ii) Faiz Rasul's and Mst. Channan Bibi's share = 9/16 Through judgments and decrees Exhs. P.4.and P.5 respectively. Feeling aggrieved Faiz Rasool and Mst. Channan Bibi filed appeal which was dismissed vide judgment and decree Exhs. P.6 and P.7. The High Court also dismissed the revision in limine, vide its judgment Exh. P.8. The judgment of the trial Court having thus attained finality the entitlement of Ghulam Rasool to the extent of 7/16th share in the suit house remains intact. As for the claim of Ghulam Rasool respondent/ plaintiff as to 1/2 share in the 1/8th share of Mst. Channan Bibi I find that Mst. Channan Bibi in Tamleeqnama dated 3‑12‑1962, Exh. D.3, had transferred her entire share to Faiz Rasool, the petitioner/ defendant. It is mentioned therein: Under the law she having inherited 1/8th share on the death of her husband, was quite competent to transfer the same as a 'gift to Faiz Rasool, petitioner. The gift deed is a registered document. There is nothing on the record to doubt its genuineness. The reasons given by the Courts below to declare the gift deed Exh. P.3 as void an ineffective in toto, are flimsy and unwarranted in the circumstance of the case. For all these reasons I am convinced that Mst. Channan Bibi had rightly transferred her entire share to Faiz Rasool and as such there was nothing left to be inherited by Ghulam Rasool plaintiff/ respondent.

7. For what has been stated above I am of the view that the Courts below by declaring Ghulam Rasool, respondent, and Faiz Rasool, plaintiff, owners of the suit house in equal shares have acted in exercise of jurisdiction illegally or at least with material irregularity. The revision is, therefore, partly accepted and the shares of the parties in the suit house are re‑determined as under:‑-- (i) Faiz Rasool, petitioner/ defendant: 9/16th. (ii) Ghulam Rasool, defendant /plaintiff" 7/16th. The record of the case shall be immediately sent back to the trial Court for further proceedings. The parties are, however, left to bear their own costs. H . B . T Revision partly accepted.