2004 PLP 1 (CLC)

MIAN SAQIB NISAR, J.‑‑‑--The respondent filed a suit for declaration, cancellation of the gift‑deed and the mutation based thereupon, which suit, after contest, has been decreed in favour of the respondent and against the appellants.

2. Briefly stated the facts of the case are that the suit property measuring 121 Kanals and 14 Marlas situated in Mauza Salara Tehsil Chiniot District Jhang, was owned by Waryyam son of Ahmad. He, on 23‑5‑1995, brought a suit, challenging the registered gift‑deed, dated 11‑11‑1993 of the suit land, allegedly executed by him in favour of the present appellants and Mutation No.448, dated 5‑1‑1994 attested in pursuance of the aforesaid gift‑deed. It is the case of the plaintiff/ respondent that he had never gifted the suit property to the appellants, but they through fraud and misrepresentation, have procured the thumb impressions of the respondent/plaintiff on certain plain papers, on the pretext and understanding that they will arrange for agricultural loan for the purpose of purchasing the Awami Tractor.

3. This suit was contested by the appellants, who in defence, pleaded that the property in question actually was owned by their mother, who is the cousin's sister of Waryyam, she in the year 1942, had gifted the suit property to the respondent/plaintiff. As the respondent had no, male issue and the appellants have been looking after the respondent, therefore, in recognition of their services, he out of his free will, had validly gifted the suit land to the appellants vide registered, gift‑deed, dated 11‑11‑1993, and they were also put in possession of the suit property; since, then, they are owners in possession thereof.

4. In the light of pleadings of the parties, the following issues were framed: (1) Whether the plaintiff is owner in possession of the suit property? OPP (2) Whether the impugned gift‑deed No.1693, dated 11‑11‑1993 and subsequent Mutation No.448, dated 5‑1‑1994 are against facts and law, mala fide, without notice, without consideration result of fraud and false personation as such having no legal consequences qua the rights of plaintiff and the same is liable to be cancelled? OPP (3) Whether the plaintiff is estopped by his words and conduct to file the present suit? OPD (4) Whether the plaintiff has got no cause of action? OPD (5) Whether the form of present suit is incorrect, if so, to what legal effect? OPD (6) Whether the suit of the plaintiff is mala fide as such liable to be dismissed? OPD (7) Whether the detail of the suit property is incorrect, if so, to what effect? OPD (8) Whether the transaction of Hiba from the plaintiff in favour of the defendants was validly made with free consent of the plaintiff? OPD. (9) Relief.

5. Parties were put to trial. The plaintiff appeared as P.W.1. Saee son of Noor Muhammad and Ghulam Muhammad were examined as P. W.2 and P.W.3. Documentary evidence adduced is Exh.P.1 Mutation No.448, Exh.P.2 is copy of Jamabandi, Exh.P.3 and Exh.P.4 are the Khasra Girdawaris, besides there are certain electricity bills of the tube well, installed at the land in dispute. As against the above; Khan, one of the defendants, appeared as D.W.1, D.W.2 is Abdul Wahab the scribe of gift‑deed, dated 11‑11‑1993, D.W.3 is Bashir Ahmad Moharrir from the office of the Sub‑Registrar, D.W.4 Allah Yar and D.W.5 Muhammad Rafiq, are the marginal witnesses of the :gift, whereas D.W.6 Zafar Iqbal is, the Lambardar, who allegedly identified Warryam at the time of registration of the gift‑deed. D.W.7 is Barkhurdar, who claims to be a tenant on part of the suit land and states to have delivered the possession of such land on the making of the gift to the appellants. Besides, the defendants produced documentary evidence. Exh.D.2 is the disputed gift‑deed, Exh.D.3 is copy of Rozenamcha Waqiati., Exh.D.4 is the copy of Jamabandi for the year 1994‑95, Exh. D.5 is the copy of Khasra Girdwari from Kharif 1993 to Rabee 1995, Exh.D.6 is the copy of Mutation No.173, dated 25‑1‑1993, Exh.D.7 is copy of the Mutation No.448, dated 5‑11‑1993, sanctioned on 25‑11‑1993.

6. It may be pertinent to state here that Issues Nos.3 to 7, burden whereof, was on the shoulders of the defendants, were not pressed before the learned trial Court. The learned trial Court by giving findings on Issues Nos.1 and 2 in favour of .the respondent and by deciding Issue No.8 against the appellants, decreed the suit.

7. Learned counsel for the appellants contends that the Court below has grossly misread the evidence on the record while giving findings on the aforesaid issues. It is stated that D.W.1 in unequivocal terms stated that the property n dispute has been gifted to the appellants by the respondent out of this own free will; the property earlier belonged to their mother, who had gifted the same to the respondent considering him as her brother; the respondent was married by the appellants' mother and the appellants throughout, have been looking after him, thus, in consideration of the aforementioned, he had gifted the property to the appellants. It is also stated that the execution of the gift‑deed Exh.D.2 has been proved beyond doubt, inasmuch as the scribe of the document appeared as D.W.2 and deposed that the same was written by him on the instructions of Warrayam; endorsement was duly made in the register maintained by him, coupled with the attested photograph of Warryam, available in the said register. D.W.5 Muhammad Rafique, who is the marginal witness, has also stated that the document was executed by Warryam out of his free will and he affixed his thumb impressions, after the deed was read over to him. It is further stated by this witness that the possession was also delivered to the appellants by Waryyam, and that Waryyam appeared before the Sub‑Registrar and got the gift‑deed registered in favour of the appellants. Same is the, deposition of witness D.W.4, the other marginal witness. Much emphasis has been laid on the statement of D.W.6 Zafar Iqbal, the Lambardar of the village. He is the person, who identified Waryyam at the time of registration of the document before the Sub‑Registrar. It is stated that this witness is equally related to both the sides and has stated that Waryyam had appeared before the Sub‑Registrar for the purpose of seeking the registration of the document Exh.D.2 and had affixed his thumb impression in his presence and was identified by him. Moreover, D.W.3 Bashir Ahmad is the Registry Moharrar, who has stated that Waryyam was identified by D.W.6 and through photograph, which is available on the record of the Sub‑Registrar. It is also submitted that Barkha, who was in possession of the disputed property as a tenant/lessee under Waryyam, had appeared as D.W.7 to testify, that he on the asking of Waryyam had handed over the possession to the appellants, after the gift was made in their favour, since then, the appellants are cultivating the suit land, thus, on account of all the above, it is argued that the essential ingredients of a valid gift i.e. offer, acceptance, declaration, consideration and delivery of possession, have been duly proved on the record; the evidence of the respondent is not trustworthy, because it is only his solitary statement, wherein he refused the validity of the gift, however, at the same time, has not denied the affixation of his thumb impressions on the deed; his case in the plaint that the appellants had promised him to arrange loan for the purchase of a tractor and the appellants deceitfully procured the gift‑deed, has not at all been proved, thus, by relying upon Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293, it is submitted; when the respondent had admitted the affixation of his thumb‑impression on the gift‑deed, but took up the plea of fraud and misrepresentation, heavy burden was on his shoulders to discharge the onus of fraud and misrepresentation, which is conspicuously missing, as there is no corroboration of this statement. Learned counsel has further argued that the property in question, originally belonged to the mother of the appellants, she had gifted the same in favour of Waryyam, because she did not have any real brother and always treated Waryyam as her brother. Waryyam was brought up and married by their mother, the appellants have been looking after Waryyam and thus, in recognition of the above, he voluntarily and out of his free will, gifted the property; these facts have been established on the record through independent evidence produced by the appellants.

8. We have heard the learned counsel for the parties. The key issues in the matter are 1, 2 and 8 and and interlinked. The burden of first two issues is on the plaintiff/respondent. He has appeared as P. W.1 and has stated as to how the fraud has been practised upon him, the appellants promised, him for arranging the loan for the purchase of a tractor, and in this manner made him to affix his thumb‑impressions on the disputed deed. Though, his statement has been cross‑examined by the appellants, but from our reading of the statement, we find that he discharged the initial burden of proving, the particulars and the facts, as to how fraud has been practised upon him. Obviously, if the matter about arranging of the loan for the purchases of a tractor, was exclusively between Waryyam and the appellants, there would be no independent evidence to prove these facts except his own statement. After the initial discharge of the burden of Issue No.2, in view of Issue No.8, it was the duty of the appellants to prove in unequivocal and positive term that Waryyam had executed the disputed gift‑deed out of his free will. In order to discharge the burden, the appellants have examined D. W.1, who is one of the defendants /appellants. In his statement, he has deposed that the land in dispute was owned by his mother, who had gifted the same to Waryyam; Waryyam was brought up by her and she also married him and that the appellants had been looking after Waryyam, thus, for the above reasons, the land had been gifted to the appellants. We are afraid that his statement, being a defendant himself, is of not much evidentiary value. Moreover, the witness had not been able to prove that the land had been gifted to Waryyam by their mother as alleged, because it is contradicted by Exh.D.6 the Mutation No.173, dated 10-10‑1942, according to this document, the mother of the appellants was a limited owner under the customary law and on account of her marriage, the ownership terminated and the land stood transferred to Waryyam, rather than any gift having been made by the lady. D.W.2 Abdul Wahab is the scribe of the deed he admitted that he did not know Waryyam earlier, but was identified through his photograph. He brought the register in which, the disputed deed is incorporated and also contains the photograph of Waryyam. However, when questioned, he conceded that he knew Allah Yar D.W.4 and Muhammad Rafique D.W.5, who both are closely related, to the appellants. From his statement and also of the said witnesses, it seems that they all belong to "Tableeghi Jamaat" and on account of this connection, the gift‑deed was scribed by D.W.2. Anyhow, neither in the gift‑deed nor in the register of D.W.2, there is any mention that Waryyam was identified through his photograph. It seems most unusual that Waryyam, if was executing the gift‑deed with his free will and the appellants at that time had no apprehension of any challenge thrown to it, seeks the identification by his photograph and without there being any rule or requirement of law the scribe appends the photograph in his register, D.W.3 is the Moharrar from the office of the Sub‑Registrar, who states that as per the record, Waryyam, at the time of registration, was identified by Muhammad Zafar and Ahmad Nawaz Bhatti, Advocate. He too states that in the register, maintained by the Sub‑Registrar, the photograph of Waryyam is available. We shall deal with the statement of Zafar Iqbal latter, however, this witness does not personally know Waryyam nor states that he was present at the time when the document was presented and it was actually Waryyam, who was the executant and presenter of this document. Again, the photograph on the register of the Sub‑Registrar is most unusual and seems to be an act of over‑doing on part of the appellants, because neither it is required under any rule to place on record the photograph of the executant nor it is shown or proved to have been signed by the Sub‑Registrar, when the document was presented to him. There is no incorporation in the record of the Sub‑Registrar, if the photograph of Waryyam has been presented alongwith the gift‑deed; he was identified through the photograph and that it has been retained on the record. We have no doubt in our mind that in both the cases i.e. scribe's register, as also the Sub‑Registrar, the photograph has been subsequently transplanted. It may be pertinent to mention here, that Mr. Ahmad Nawaz Bhatti, Advocate, who allegedly identified Waryyam at the time of the gift‑deed before the Sub‑Registrar and could have been an independent witness, for no plausible reasons, has neither been summoned through Court nor examined by the appellants. This amounts to the withholding of the best evidence and an inference under Article 129(g) of the Qanun‑e‑Shahadat Order, 1984 can validly be drawn against the appellants.

9. D.W.4 Allah Yar and D.W.5 Muhammad Rafique, are the son and real nephew of the appellants, they are the only marginal witnesses; being closely related to the appellants, we on account of their statements, are not convinced if a valid execution of the disputed gift has been proved. Waryyam admittedly is an illiterate person, he was not accompanied by any male member of his immediate family, when he had two sons‑in‑law. It is conceded by these witnesses that no person froze the village was associated for the purposes of the execution of gift‑deed and the matter was also not reported to the Patwari.

10. D.W.6 Zafar Iqbal again is closely related to the appellants; this fact has been admitted by D.Ws. and the witness himself. Per chance, he is one of the Lambardars of the village, but this does not mean that on account of his solitary deposition that Waryyam was identified by him before the Sub‑Registrar, the overall scenario and the probabilities of the case be overlooked. The probabilities ‑against the appellants are that they have failed to prove that the property in question was gifted by their mother to Waryyam as this assertion is contradicted by Exh.D.6; Waryyam is residing at the property in dispute and this is also his sole source of living; he has two married daughters, grand children and a wife. It is most unlikely and improbable that a person during his life would relinquish his ownership of such property, which is the means of his shelter and income and put himself at the mercy of the others, therefore, we are of the firm view that mere appendage of the thumb‑impression of Waryyam on the gift‑deed by itself without the independent proof of the factum of gift in favour of the appellant, is not sufficient to establish that the property in issue was validly gifted by Waryyam to the appellants out of his free will. Resultantly, we uphold the findings of the learned trial Court on Issues No. 1 and 8.

11. As regards the question of possession is concerned, it has been admitted by D.W.4 as follows:‑‑ D.W.1 states that the possession of the property was taken over the same night gift‑deed was executed and at that time, there were number of persons present including the neighbours, but none of these independent witnesses has been examined by the appellants. The appellants admitted that possession of the suit property is with Saee son of Noora and earlier Noora was in possession of the suit property. Noora has not been examined, whereas Saee has appeared on behalf of the respondent as P. W.2 anti states that he is cultivating the suit property as a tenant/lessee of Waryyam for the last 20 years and that he has never delivered the possession to the appellants and whenever, the possession shall be delivered, that shall be to Waryyam. As regards Barkhurdar, who has been examined by tire appellants to establish that he was the tenant on a part of the suit property under Waryyam and had delivered the possession to the respondent, suffice it to say that there is no documentary proof on the record to establish that immediately before the gift, any part of the suit property was possessed by Barkhurdar. The Khasra, Girdawaris to which, the learned counsel for the appellants, had made reference, are much before the gift‑deed was allegedly executed. Waryyam as stated above, is living on the part of the suit property and this also is the only source of income he has, therefore. it is unbelievable that he terminated his possession making himself shelter less and delivered the possession to the appellants under the gift. Resultantly, we are constrained to hold that the possession of the suit property, as found by the learned ‑trial Court, was never delivered to the appellants, which is still retained by Waryyam. In the light of above, this appeal has no force, which is hereby dismissed with costs throughout. S.A.K./G‑292/L Appeal dismissed.