2016 PLP 1426 (MLD)

SHAHAB SARKI, J.

The brief facts pertinent to the instant petition are that the respondents Nos. 1 to 8 filed a 1st Class Suit No.23 of 2006 before the Court of learned Senior Civil Judge, Kandiaro against the petitioners for Declaration, Possession, Mesne Profit, Cancellation of Registered Sale Deed and Permanent Injunction. The petitioners and respondents Nos.1 to 8 are legal heirs of one Mughal and the matter pertains to property bearing Survey Numbers 496, 519, 504, 510, 500, 502, 545, 492, 498 in Deh Dehat, Taluka Kandiaro and a portion of Survey Numbers 543, 550, 551, 552, 553, 501, 544/A,B, 546 and

547. As per the facts narrated in the said suit, the respondents were aggrieved when they came to know that they have been deprived of their inherited property by the petitioners through a BAKHSHISHNAMA/ STATEMENT registered before the Mukhtiarkar. The judgment in the said suit was passed on 27.05.2009 whereby the suit of the respondents was decreed and the alleged gift on the basis of statements made before the Mukhtiarkar Revenue Kandiaro dated 14.11.1992 was declared illegal and so also the subsequent registered Sale Deed dated 16.08.2001. The petitioners (Defendants) were directed to put the respondents (Plaintiffs) in physical possession of the suit land. A preliminary decree was ordered to be made, and the Mukhtiarkar Revenue Kandiaro was directed to ascertain the mense profit. An appeal was preferred against the said judgment being Civil Appeal No. 37 of 2009 before the Court of learned Additional District Judge, Moro and during the hearing of appeal, the petitioners moved an Application under Article 84 of the Qanun-e-Shahadat read with Section 151, C.P.C. for comparison of the thumb prints of the three respondents, which appeared on the statement of BAKSHISHNAMA, but the same was dismissed vide impugned order dated 29.10.2011.

2. The learned counsel appearing on behalf of the petitioners has argued that the main point involved is regarding the genuineness or otherwise of the thumb impressions of three respondents and to get to the root of the issue and to prove their case it is essential to get the comparison of the thumb impressions. He has further argued that a valuable right of the petitioners is involved and the alleged gift pertains to the year, 1992 whereas the suit was filed by the respondents in the year 2006; hence it was barred by limitation but the same has not been considered by the trial Court. He has finally argued that there is provisions in the Qanun-e-Shahadat Order, 1984 regarding comparison of thumb impressions and handwriting.

3. The learned counsel appearing on behalf of the respondents Nos. 1 to 8 has argued that the suit proceeded with the conscious knowledge of all the concerned parties and it was contested by the petitioners and after framing of issues of both the parties evidence was led and judgment passed but at no stage of the proceedings before the trial Court the petitioners sought the comparison and only at the belated stage of appeal they have moved this application. He has further contended that the appellate Court has passed a well-reasoned order, which does not warrant any interference by this Court. He has finally argued that the petitioners are still enjoying possession of the land and their only intention is to delay the proceedings and continue to deprive the respondents from their due and legitimate share.

4. The learned AAG appearing on behalf of the official respondents has, on the other hand, contended that there will be no harm if the petitioners are allowed comparison of the thumb impressions in the interest of justice.

5. We have heard the arguments and perused the record. We have also examined the judgment dated 27.5.2009 passed in F.C. Suit No.23 of 2006 and we find that the petitioners duly appeared before the trial Court and vigorously contested the claim. In the said judgment the learned trial Judge has discussed the complete evidence led by the parties and the legal position in this regard and has passed a well-reasoned order. The petitioners had ample opportunity to produce the concerned officials and the marginal witnesses of the alleged gift deed but they chose not to do so. Thereafter, at a belated stage of appeal they moved this application before the appellate Court, which after hearing the parties has passed the impugned judgment.

6. In the instant case where the donor has denied the execution of the gift a huge onus is on the shoulder of the donee(s) to establish not only the execution of the gift deed but also to establish and prove the three basic ingredients i.e. proposal, acceptance and delivery of possession. In the case of Mst.Kulsoom Bibi and others v Muhammad Arif and others (2005 SCMR 135), it has been held by the honourable apex Court that the beneficiary has to prove the proposal, acceptance and delivery of possession, independent of the execution of the gift deed. In the instant case we have noted that even the marginal witnesses of the said gift deed were not brought before the trial Court for examination. As a matter of fact the petitioners, being the beneficiaries, were carrying a heavy burden of proof which they have failed to discharge. In this regard we are also fortified by the judgment reported as Abdul Sattar v. Muhammad Ashraf (2008 SCMR 1318).

7. Keeping in view the above discussion and the facts we do not find any illegality or impropriety in the impugned order and dismiss this petition with no order as to costs. ZC/M-14/Sindh Petition dismissed.