2017 PLP 172 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioner has challenged the validity of the judgment and decree dated 17.12.2012 passed by the learned Civil Judge, Burewala whereby the suit for declaration filed by the petitioner was dismissed; and the judgment and decree dated 05.11.2015 whereby the appeal filed by the petitioner was dismissed by the learned Additional District Judge, Burewala.

2. Brief facts of the case are that the petitioner/plaintiff filed a suit for declaration against the respondent/defendant in respect of land measuring 20-Kanals 08-Marlas bearing Khasra Nos.175/13, 18, 23, Patch No.8, Khatooni Nos.786-787, Khewat No.158/158 situated in Mauza Sahoka, Burewala to the effect that gift mutation No.2276 dated 31.03.2003 in favour of the respondent/defendant was made merely as Benami transaction and is liable to be set aside. The respondent/ defendant appeared before the learned trial Court contended that the petitioner/plaintiff gifted the suit property from his own free will, as such, she became the owner of the suit property. Learned trial Court after framing the issues and recording the evidence of both the parties dismissed the suit of the petitioner vide judgment and decree dated 17.12.2012. The petitioner filed appeal before the learned Additional District Judge, Tehsil Burewala, District Vehari which was dismissed by the learned Additional District Judge, Burewala vide judgment and decree dated 05.11.2015. Hence, this civil revision.

3. Learned counsel for the petitioner submits that both the judgments and decrees are based on mis-reading and non-reading of oral as well as documentary evidence; further submits that the Courts below have not properly appreciated the evidence; and both the judgments and decrees are against the law and facts of the case.

4. Heard. Record perused.

5. It is an admitted fact that the petitioner is father of the respondent and he himself from his own free will alienated the suit property to the respondent through gift mutation No.2276 dated 31.03.2003 (Exh. D-1), in the said mutation there is nowhere mentioned whether the suit property was transferred in the name of the respondent as Benamidar. Exh. D-3 is a copy of Roznamcha Waqiati which shows that the petitioner made offer to the respondent for the transfer of the suit land through oral gift. There is also no statement recorded by the petitioner that the property in question is transferred in the name of the respondent/defendant as Benamidar.

6. Farooq Ahmad appeared as PW-1 as a special attorney of the petitioner and admitted in his cross-examination as under:- The statement of PW-1 shows that the petitioner filed suit on the basis of mala fide intention. Even otherwise, it is admitted fact that the petitioner recorded the gift mutation No.2276 dated 31.03.2003 in favour of the respondent on his free will. No evidence brought on record by the petitioner that the gift was incorporated in the revenue record due to any coercive measures adopted by the respondent/defendant or on the basis of fraud. PW-1 also admitted that the petitioner/plaintiff filed a suit after marriage with Mehnaz Bibi and Mehnaz Bibi is present in the Court. PW-3 in his statement deposed that in the year 2003 he went to his uncle Shabbir Hussain's house, the defendant was sitting there, Farooq Ahmad and Muhammad Nawaz, witnesses were also present there. Whereas, PW-4 Muhammad Nawaz stated that Farooq was sitting in the house of the plaintiff and Iftikhar Shah was also present there before his arrival. Both the statements are contradictory in nature and are not believable. In rebuttal, the petitioner/plaintiff himself appeared who has not explained the reasons and basic ingredients of a Benami transaction in his statement. Under para No.149 of the Muhammadan Law, there are three essentials of a valid gift, which are as under:-

1. Declaration of gift by the donor,

2. An acceptance of the gift, express or implied, by or on behalf of the donee.

3. Delivery of possession of the subject of the gift by the donor to the donee as mentioned in Para No.150 of Muhammadan Law. Para No.167 of Muhammadan Law relates to revocation of gifts but in this case the petitioner himself admitted that he gifted the property to the respondent from his own free will who accepted the same and the possession was handed over to her. The petitioner's assertions only that the said Hiba (gift) was Benami and it is settled law that the concept of Benami is not applicable to the gifts as the primary parameters/ ingredients of both transactions are totally at variance. Benami transaction is confined to purchase of the property in the name of person other than real and actual purchaser. Whereas, in this case, there is no sale and purchase, the ingredients of Benami transaction are totally different which are as under:-

1. Source of consideration;

2. From whose custody original title-deed of property is produced, and who possesses the prior deed by which the vendors proved their own title;

3. Who is in possession of property, and;

4. Motive for the benami transaction. The gift cannot be considered as Benami in nature. The concept of gift essentially pertains to the domain of Muhammadan Law. Once a donor has transferred his right in the property by way of lawful gift/Hiba, subsequently by way of a somersault he cannot be resiled from the gift transaction.

7. The learned counsel for the petitioner has not pointed out any illegality or irregularity, misreading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect.

8. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases of Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Asmatullah v. Amanat Ullah through LRs (PLD 2008 SC 155), Rashid Ahmad v. Said Ahmad (2007 SCMR 926) and Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304).

9. In view of above, this revision petition is dismissed in limine. ZC/S-43/L Petition dismissed.