2008 PLP 1406 (CLC)

HAFIZ TARIQ NASIM, J.

Unfortunately this litigation is amongst father and sons. The petitioner being owner of the property situated in village Chak Dadan, Tehsil Wazirabad, District Gujranwala, gifted the same to his sons i.e. the respondents, through Mutations Nos.1236, 1257 and 1258 on the basis of oral gift and according to the petitioner he did not deliver possession of the land to the respondents. However, the petitioner filed a suit for declaration and permanent injunction alleging that the respondent defrauded him with ulterior motive and deprived him from his agricultural land with the prayer that Mutations Nos.1236, 1257 and 1258 be declared illegal and void. Respondent No.1 Fakhar-uz-Zaman filed a separate written statement denying the petitioner's version, whereas respondents Nos.2 to 4 in their written statement supported the version of the petitioner contending that they had no objection if the suit is decreed as prayed for. Out of pleadings of the parties, certain issues were famed, evidence was recorded and finally the suit was dismissed on 31-1-2006. Aggrieved by this, the petitioner filed appeal before the learned Additional District Judge but the same was also dismissed vide judgment and decree dated 12-6-2007 upholding the decision of the trial Court.

2. Learned counsel for the petitioner submits that virtually the trial Court as well as the appellate Court failed to appreciate the evidence available on record, did not advert to the basic question regarding the requirements of Hiba (gift) which were not fulfilled as no physical possession was ever delivered to the donees. Further submits that the petitioner is still cultivating the land, which is practically in his possession.

3. On the other hand, respondents Nos.2 to 4 have not appeared, despite notice, hence they are proceeded against ex parte. However, respondent No.1 argued the case with vehemence, supported the concurrent findings arrived at by both the Courts below and averred in so many words that possession was delivered to him long, long ago and if the Court appoints a commission for verification of petitioner's contention of non-delivery of possession, he is ready to pay the expenses because the said contention is not based on facts. When confronted with this situation, learned counsel for the petitioner could not accept respondent No.1's offer, however, continued with his stance that the possession was not delivered, meaning thereby that the requirements of gift were not fulfilled, hence no question of entitlement of respondent No.1 arises.

4. Arguments heard. Record perused.

5. The main issue framed by the learned Civil Judge was Issue No.6, which reads as under:-- "Whether Mutations Nos.1236, 1257 and 1258 sanctioned in favour of defendants on the basis of alleged oral gift are inoperative being sanctioned against law and facts through fraud and the said mutations are liable to be cancelled? OPP"

6. In support of this issue, both the parties adduced their evidence. The learned Civil Judge after going through the evidence, gave a categorical finding that the fact of attestation of mutations on the basis of gift is not disputed as the petitioner admitted in the plaint as well as in his statement that he attested the mutations in favour of the respondents with his free consent but simultaneously he has stated that the said mutations were attested only to facilitate the respondents to obtain loan from the Bank on the basis of property so transferred in their name and has taken a stance that fraud has been committed with him. This stance of the petitioner cannot be accepted because from his statement as well as that of Muhammad Azam P.W.2, it can be inferred that there is a family dispute between the petitioner and respondent No.1. This fact is also established through the statement of Sakina Bibi D.W.1, real sister of the petitioner. Certified copies of the disputed mutation and Khasra Girdawari reveal that the respondents are in possession of the property in dispute and their names have also been incorporated in the Jamabandi for the year 2002-03. Findings of the trial Court were confirmed by the learned Additional District Judge in his judgment. Respondent No.1 submits that practically the petitioner i.e. his father is insisting to pronounce divorce to his wife and non-compliance of the said directions has been made basis of the entire controversy which fact would not be denied by the petitioner during the course of arguments. Offer of respondent No.1 for determination of actual possession by appointing some commission is also not accepted by the learned counsel for the petitioner.

7. Even otherwise, concurrent findings recorded by both the Courts below are well-reasoned and cannot be interfered with particularly when there is a very limited scope for interference by this Court in exercise of revisional jurisdiction under section 115, C.P.C. Accordingly, the civil revision is dismissed. H.B.T./M-181/L Petition dismissed.