2006 PLP 1102 (YLR)

MIAN SAQIB NISAR, J.

The instant petition i.e. C.R. No.413 of 2004 as also C.R. No.735 of 2004 are being disposed of together, as both involve common question of law and facts.

2. The petitioner filed a suit for the declaration claiming to be in possession of' the suit property and also challenging the sale made in favour of respondent No.1, whereas, the respondent No.1 also brought a suit for the possession on account of the sale, having been made in his favour; both the suits were consolidated and after recording of the evidence, the suit of the petitioner has been dismissed, while that of the respondent No.1, has been allowed. The appeals of the petitioner have also failed. Hence these civil revisions.

3. Some more facts necessary for the disposal of the revisions petitions are that Dewan Ghulam Qutab-ud-Din, was the owner of the suit-land, measuring 7 Marlas and 7 Sarsahis, forming part of Khata No.681, situated in Pakpattan City; according to the petitioner, the aforenamed, in the year 1956, on account of "Baksheesh" had gifted the said land to the petitioner's mother and had also delivered the possession to her; subsequently, Dewan Maudood, the son of Dewan Ghulam Qutab-ud-Din had acknowledged the factum of gift vide document dated 3-8-1990; the petitioner claimed to have constructed the property in the nature of a house and paying the property taxes and all the amenities, etc. are still to be in the name of the petitioner, having been procured by them. Subsequently, the dispute has arisen between the parties, when Dewan Maudood Masood through his attorney has sold 5 Marlas and 5 Sirsahies of the land from the said Khata, in favour of respondent No.l, vide registered sale-deed 13-9-1990, who brought the suit for the possession against the petitioner and the petitioner, as mentioned above, brought the suit for the declaration, both having been tried together and disposed of as mentioned above. 3-A. Learned counsel for the petitioner has argued that the oral gift, is permissible under the law; that an oral gift could be acknowledged through an unregistered written document; that the petitioner' side are in possession of the property on account of' the gift, where she has raised the construction and this proves the factum of the gift in favour of the petitioner's side; that all the amenities, etc. are in the name of the petitioner; oral evidence led by the petitioner, duly proves the valid gift of the property in her favour and that on the basis of' this oral overwhelming evidence, the findings of' the Courts below to the contrary tantamount to misreading and non-reading. It is further submitted that the land gifted to the petitioner, is out of the total land measuring 76 Kanals and 2 Marlas, bearing Khewet No.681, Khatuni Nos.765 to 800, whereas the sale made in favour of the respondent No.1 is only to the extent of 5 Marlas and 5 Sarsahics, though from the same Khata but it is not specifically mentioned in the sale-deed that the same land has been sold in favour of the said respondent, which has been orally gifted to the petitioner. Therefore, the respondent No.1, even on account of the sale-deed, could not competently claim the exclusive ownership of the specified parcel of' land, which is the subject-matter of the suit and seek the possession from the petitioner, rather should have gone for the partition of the joint Khata. Lastly, it is submitted that the general power of attorney through which, the sale has been made in favour of the respondent No.1, by Dewan Maudood Masood, has not been produced at any stage of the proceedings.

4. Heard. Undoubtedly, the immovable property, can be gifted through oral mode, but for such a transaction, very strict and positive evidence is needed; the donee who is the beneficiary of the gift, has to prove in unequivocal and specific terms the date, day and the time; when the gift was made, the consideration of the gift and also the persons in whose presence, it was so made. Unfortunately, in the instant case, the above essential ingredients are conspicuously missing. At the best, the petitioner may have proved a case of being licensee, but not in the nature of. the gift; the acknowledgement allegedly executed by Dewar Maudood Masood dated 3-8-1990, when specifically put to his attorney, who appeared in the witness box, has denied the signature of Dewan Qutab-ud-Din, on this document, therefore, it was not received in the evidence and was only marked; however, no effort ever has been made by the petitioner to prove the document, as required under the law, resultantly, the petitioner cannot take any benefit of the so A called acknowledgment.

5. As regards the argument about the superstructure having been raised by the petitioner's side and they continuing in possession thereof, suffice it to say that as mentioned earlier, such structure may have been constructed with the permission of the owner of the property in the nature of licensee and the petitioner remains to be holding the property in that capacity but it may be reiterated that as the gift has not been proved, resultantly, the circumstances about construction, occupation and the installation of the amenities cannot be considered as proof of the petitioner's ownership. I have considered the evidence brought on the record by the parties and the impugned judgment, but find no amiss in reading thereof, so as to interfere in the concurrent finding.

6. For the argument that the general power of attorney of Dewan Maudood Masood has not been produced, suffice it to say that this document itself has not been challenged by the petitioner in any of the proceedings. The petitioner, if felt that Dewan Maudood Masood has not executed the power of attorney or has not appointed Syed Shahid Ali Shah, should have raised the plea, which from the pleadings of the parties is not an issue between them. In the light of above, I do not find any reason to interfere in the concurrent finding as mentioned above, therefore, these petitions have no merits and the same are hereby dismissed. However, without prejudice to the petitioner's right to challenge the matter before the higher forum, on the request of learned counsel for the petitioner, she/they are permitted to remove the superstructure raised on the suit property, within two months and till then no execution proceedings shall be carried against her/them. F.B./I-3/L Petitions dismissed.