2003 PLP 1829 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks leave to appeal against judgment dated 16-4-2002 passed by the Lahore High Court, Lahore in Civil Revision No. 1249 of 1996.

2. The facts of the case, succinctly stated, are that respondent No. 1 filed a civil suit, for declaration, permanent injunction and partition of suit-land measuring 3 Marlas, against the petitioner and respondents Nos.2 to

17. It was alleged therein that the gift-deed dated 16-5-1985 (Exh.D/1) purported to have been executed by the late Hassan Muhammad, original owner of suit property in favour of the petitioner was forged, void, illegal and of no legal effect. The Civil Court struck as many as six issues on the divergent pleadings of the parties. The suit of the respondent was dismissed by the Civil Judge, Lahore vide judgment and decree dated 9-3-1992. However, the appeal of the respondent No. 1 was accepted by the Additional District Judge, Lahore by judgment and decree, dated 26-2-1996 by declaring the impugned gift-deed, dated 16-5-1985 (Exh.D/1) as illegal, void and inoperative qua the rights of the respondent No.1 and that the suit property would devolve upon all the leg-al heirs of Hassan Muhammad in accordance with law. The case was remanded to the trial Court for partition of the suit property. The petitioner filed Civil Revision No. 1249 of 1996 which was dismissed by the impugned judgment dated 16-4-2002 by the Lahore High Court, Lahore. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner argued that the Lahore High Court fell in error by omitting to consider the fact that none of the P.Ws. had denied the due execution of the gift-deed (Exh.D/1) by late Hassan Muhammad in favour of the petitioner. Even the plaint was also silent on this material aspect of the case. It was submitted that respondent No. 1 failed to discharge the onus of proof of Issue No. 1 that the impugned gift-deed was forged, void, illegal and inoperative against the rights of the said respondent. On the other hand, the petitioner had proved validity of the gift-deed (Exh.D/1) by adducing reliable evidence. It was lastly contended that the petitioner had moved an application for producing the Local Commission but the same was unjustifiably dismissed by the trial Court.

4. We have heard the learned counsel for the petitioner at length. The registered gift-deed (Exh.D.1) does not indicate as to who had presented the same before the Sub-Registrar. The payment of Rs.6,000 by the petitioner to late Hassan Muhammad in the matter of gift as indicated by the Local Commissioner in his note is also not understandable. There is nothing on record to show as to who had presented the gift-deed before the Local Commission. Moreover, the essentials of a valid gift were required to be proved independently of the gift-deed. The statements of Muhammad Ashraf D. W.1 and Muhammad Rafique D. W.2 do not prove the fulfillment of the requirements of a valid gift. Niamat Ali P. W.3, a brother-in-law of the petitioner had just stated that late Hassan Muhammad had told to him of having gifted the suit property to the petitioner for the sake of Allah. The record of the Excise and Taxation Department did not indicate alienation or delivery or transfer of possession of the suit property in favour of the petitioner. On the other hand, the Appellate Court as also the Lahore High Court recorded the findings of fact that the respondent No. 1 had discharged the onus of proof of Issue No.

1. The Lahore High Court justifiably came to the conclusion that petitioner failed to prove the gift-deed and delivery of possession of the suit property by Hassan Muhammad in his favour. The impugned judgment does not suffer from any infirmity so as to call for any interference by this Court. This is not a fit case for grant of leave to appeal.

6. This petition has no merit and the same is dismissed accordingly. M.H./G-163/S Petition dismissed