P L D 2005 Lahore 114 (PLP)

2. Before proceeding further, it may be stated that, the learned counsel for the respondents has verbally challenged the findings of the two Courts below about the validity of the gift‑deed given in favour of the petitioners, on the ground that, such are based upon misreading and non‑reading of the evidence. He also submitted that, no cross‑revision was required to be filed, because the respondents are not seeking the modification of the decree of the Appellate Court, but by supporting the same, are assailing the findings of the Courts on the issues Nos.2 and, 4 which are regarding the execution and the validity of Exh.P.1. This according to the learned counsel is permissible in view of the judgment of the Honourable Supreme Court of Pakistan reported as Khariati and 4 others v. Aleem‑ud‑Din and another (PLD 1973 SC 295).

3. I have heard the learned counsel for the parties. According to the dictum of the Honourable Supreme Court mentioned above, which has been rendered in context of the appeals, the Hon'ble Court while construing the provisions of Order XLI Rule 22 C.P.C., has held as follows:‑ "Respondent in the appeal can support a decree even on points against him but cannot attack decree and ask for its variation without filing cross‑objection." From the reproduced paragraph of the judgment, when considered in the light of the facts of the case involved in that matter, it is clear that, where there are more than one issues involved in a case; the plaintiff, if succeeds on certain issues and procures a decree in his favour, but on certain issues, the decision rendered by the trial Court is against him, the plaintiff, who became the respondent in the appeal filed by the defendant/judgment‑debtor, without filing the cross‑appeal or cross‑objection on those issues, against him, may support the judgment. And also verbally challenge the findings of the trial Court on the issues going against him, and seek the reversal of such finding to additionally support the judgment and decree in his favour on the basis of the reversed findings as well.

4. The point may be elaborated by the following illustration:‑ In a suit for the specific performance of a contract, the issues involved are:‑ (1) Whether the defendant has agreed to sell the suit property in favour of the plaintiff? OPP (2) Whether the defendant No.4 is a bona fide purchaser and thus, has the protection under section 27 (b) of the Specific Relief Act? OPD The trial Court found, that the plaintiff has non able to prove issue No.1, however, on second issue, it is held shat the said defendant has not been able to establish the plea of his being the bona fide purchaser, therefore, such issue is decided against the defendant. However, because of the decision on first issue, the suit is dismissed; the plaintiff files appeal against the judgment and decree; the defendant No.4 is also aggrieved of the findings of the trial Court on the second issue of bona fide purchaser and therefore, he wants to get the findings reversed. However, he has not filed any cross‑appeal or the cross‑objection and verbally assails the findings on the second issue. It is in such situation that, the Honourable Supreme Court has held that, the respondent in appeal, who has obtained a decree from the Court, and does not want any change in the decree, can support the decree, and can also orally Challenge the findings on the issue, which has gone against him, and may request the Court to return the findings in his favour on that issue as well. In this manner, the fact remains, that the respondent is not seeking any variation in the decree. But where the respondent wants that the decree must be modified/varied by the Appellate Court, he is precluded under the law to seek any change, until the cross‑appeal or the cross- objections has been filed by him.

5. In the instant case, applying the illustration mentioned above, as the respondent has obtained the decree at the level of the Additional District Judge and the other side has come in revision, therefore, following the ratio of the Hon'ble Supreme Court judgment and drawing an analogy of the principle of law. Laid down therein, to the revisional jurisdiction as well, I am of the considered view, that the respondent can challenge the findings of the two Courts below on issues No.2 and 4 without any challenge through cross‑objection etc. Furthermore, while exercising the supervisory jurisdiction under section 115, sub‑part (2) C.P.C., the High Court has been given a special and extra ordinary jurisdiction to make such orders as it thinks fit. Obviously, this power inserted in the provisions of law, is meant to cater the kind of situation, which is faced in the present matter, therefore, I allow the respondents to challenge the findings of the two Courts below on Issues No.2 and 4.

6. Now examining the case on merits, P.W.1 Samundar Khan, who is the scribe of the document Exh.P‑1 has categorically stated that he does not know Amir alias Bhanda, the father of the petitioner. Resultantly, his statement in no way proves the fact, that it is the Amir, who was present at the relevant time and allegedly executed the Exh.P.1, by the affixing his thumb‑impressions thereupon. Ali Muhammad, one of the marginal witness of Exh.P.1 has not been examined and there is no valid explanation in this behalf. Jinda the second marginal witness has appeared as P.W.2, but has not stated, if Amir had executed the document Exh.P.1, which was read over to him and he while understanding the contents of Exh.P.1, has put his thumb‑impressions thereupon. It is settled law, that mere appendage of the signatures or the thumb impression by a person, who is illiterate, until the contents of a document are read over to him and explained if necessary, shall not tantamount to a valid execution of the document. Moreover, this witness even has not stated in his statement in chief, that the thumb‑impressions upon the document were affixed by Amir alias Bhanda at that time. P.W.3 is the Lambardar of the village, but he has not stated, if thumb‑impressions were affixed by Amir alias Bhanda in his presence. Further in the cross‑examination, when asked about the legal heirs of Amir alias, Bhanda, this witness has not been able to state about the defendants, who admittedly are the legal heirs of the deceased Amir. It is very strange that the Lambardar of the village, does not know the admitted relationship of the petitioners with the deceased. In any case, there is no much discussion by the Courts below upon the statements of the P. Ws. and I am not impressed, if reading in totality, through such testimonies the petitioners have been able to prove that Ex.P1 was validly executed.

7. It may be mentioned, that had it been a case of appraisal of evidence by the Courts below, I would not have endeavoured myself to examine the evidence and to opine in this behalf, until and unless a case or error in reading was established, having some reflection upon the decision. But I am constrained to do so because of the sketchy and dearthy decision upon the evidence by the Court. The Courts below have simply held that on the basis of such evidence, the gift stands proved. This is no finding in the' judicial sense.

8. As regards the question, whether Ex.P.1 is a gift‑deed and, therefore, was compulsorily registrable, and shall suffer on account of section 17 of the Registration Act, or it is an acknowledgment of the oral gift, which does not require the registration. Suffice it to say that, the contents of Ex.P1 are very clear and leaves no room for doubt, that the document is not an acknowledgment of airy earlier oral gift made, but in fact the gift was being made through the document. Even this is not the case of the petitioners that an oral gift was made earlier and that their father had subsequently executed the document by accepting the same. Resultantly, under the law, if a document, which creates or purports to create a right in an immovable property worth more than Rs.100, is compulsorily registrable and if it is otherwise, such document does not create or purport to create a right in the property. Obviously, on account of this infirmity and vice too, the petitioners cannot claim to have attained any lawful right or title in the property, on the basis of the alleged gift. For the reasons mentioned above, I do not find any merit in this petition, which is hereby dismissed. M.I./M‑717/L Petition dismissed.