2008 PLP 2046 (YLR)

KHALIL AHMAD, J.

Fazal Shah petitioner filed a suit for declaration alleging that he on the basis of registered sale-deed No.834, dated 16-12-1976 is owner in possession of the property mentioned in the plaint. The said land was gifted to him by his wife Murid Fatima who also delivered the possession and since then he is owner in possession of the disputed land. He claimed that entries in the Revenue Record regarding suit property from 1997 onward are illegal, against law and facts and the respondent intends to interfere in his possession over the suit property and denied his ownership as such he was constrained to file the suit.

2. The respondents entered appearance, filed their written statement, denied genuineness of hiba and claimed that the suit property was owned by Murid Fatima. She was never treated properly by the petitioner so there was no reason for her to gift the suit property to the petitioner and that possession was never delivered to him and that during subsistence of the marriage, the petitioner had contracted second marriage. As such the question of making Hiba of suit property in favour of petitioner does not arise. The alleged Hiba deed is fake and fictitious because allegedly it was executed in the year 1976.

3. Along with the suit the petitioner/plaintiff filed an application under Order XXXIX, rules 1 and 2, C.P.C. for the grant of stay. This application was accepted by the learned Civil Judge vide order dated 23-12-2006. Respondents filed an appeal against the said order which was accepted by the learned Additional District Judge vide judgment dated 21-9-2007 and the interim injunction was refused. The petitioner has challenged the same through this petition.

4. Arguments heard. Record perused.

5. The alleged gift-deed was executed in the year 19/6 which was never implemented in the revenue record. Murid Fatima died issueless on 29-11-1980 and in her life time the petitioner had contracted a second marriage. The necessary ingredients, offer, acceptance and delivery of possession of the suit property under the gift have to be proved in the trial. Petitioner has appended with the petitioner copy of Khasragirdawri of Mauza Khaki Kaki for the year Kharif, 2006 to Rabi, 2007 to show that one Master Muhammad Fazil son of Sultan is a tenant under the petitioner. The petitioner has not appended any revenue record showing incorporation or attestation of mutation in his favour on the basis of said gift-deed dated 16-12-1976. Respondent has also filed a suit titled "Hassan Shah v. Fazal Shah and others" and claimed that vide inquiry of DDOR dated 10-12-2004, gift-deed has been declared as bogus and mutation of Inheritance No.3091 dated 6-7-2005 attested in his favour be cancelled. The onus to prove genuineness of hiba is upon beneficiary and when hiba is denied the issue can only be decided after recording of evidence. The facts of the case, prima facie, cast doubt on the genuineness of hiba/gift-deed and the onus is on petitioner to prove it. The document attached with the petition only relate to. the period 2006-2007.

6. In these circumstances, the petitioner has no prima facie arguable case in his favour particularly in the absence of two ingredient necessary for the grant of stay.

7. Learned counsel for the petitioner is unable to point out any illegality, or material irregularity in the impugned order warranting interference by this Court. The judgment of the learned Additional District Judge, is upheld and this petition is dismissed. M.H./F-18/L Revision dismissed.