1989 PLP 251 (MLD)

(4) Whether the plaintiff is the owner in possession of 2/3rd of the suit land comprised in Khata No. 46/26? OPP. (5) Whether the plaintiff is the mortgagee in possession of 2/3rd of the suit land comprised in Khata No. 53/59? OPP. (6) Whether the defendant No. 1 is the owner in possession of the suit land on account of valid gift made in her favour by Jamal Din, deceased? OPD. 1. (6‑A) Whether Mst. Aabo is the real sister of Jamal Din deceased? OPP. (6‑B) Whether the defendants No. 2 to 4 are bona fide purchasers for value without notice? OPD.2 to 4. (6‑C) Whether the plaintiff has no cause of action against the defendants No. 2 to 4? OPD. 2‑4. (7) Relief. After recording evidence the learned trial Court vide its judgment and decree dated 6‑5‑1982 decreed the suit in favour of Mst. Aabo, sister of Jamala aforementioned. Zahoor Ali etc. Vendees filed an appeal which was dismissed on 20‑6‑1983 by the learned Addl. District Judge, Sheikhupura. Hence this Regular Second Appeal.

2. It is, inter alia, contended that the learned appellate Court did not discuss and determine issue No. 6 which pertained to the validity of gift made by Jamala in favour of Mst. Kaki though the finding of the trial Court was seriously assailed by the appellants. The question regarding the maintainability of the suit was also not properly adverted to, it is added. The finding about the valuation of the suit for the purposes of court‑fee and jurisdiction is also challenged.

3. The suit filed by Mst. Aabo challenging the gift made by her brother Jamal Din in favour of Mst. Kaki was still pending when she sold the land in dispute to the appellants. The learned Courts below held that since Mst. Aabo was joint owner of the land in dispute, therefore, she was not required to bring suit for possession, for, the possession of a co‑owner remains the possession of all and as such suit for a declaration was competent. And on this basis the suit was held to be correctly valued for the purposes of court‑fee and jurisdiction. Jamal Din alias Jamala had challenged the gift and mutation even to his lifetime. He was alleged to have gifted away his entire land which he could not do as he was not the sole heir of his brother Bali and his sister Mst. Aabo was also a co‑sharer with him. The essential requirements of gift were not found to have been fulfilled in that, the evidence proved that Sadiq tenant had been giving share of produce to Mst. Aabo as well. There are concurrent findings of fact by the Courts below which have the weight of evidence and are not shown to be patently improbable or perverse or against law resulting in grave miscarriage of justice. Proper consideration has been given to the evidence led in the case and no mis-appreciation or misreading I appears therein. It had been rightly held by the Courts below that Mst. Aabo was also a co‑sharer with Jamala and as such he could not make a gift of the entire land. For the reasons discussed above no case is made out for second appeal and accordingly the appeal is dismissed. H.B.T./Z‑79/L Appeal dismissed.