2002 PLP 1865 (CLC)

(1) Whether the defendant No. l had gifted the land in question in January, 1987 to the plaintiffs and defendant No.2 and the gift was acknowledged by him, vide document dated 9‑3‑1987? OPP (2) Whether the plaintiffs were in possession as owners of the land in dispute?. OPP (3) Whether the defendants Nos.3 to 6, had purchased the land in dispute from defendant No. 1, in consideration of Rs.7,50,000? If so, its effect? OPD 3.to 6. (4) Whether the defendants Nos.3 to 6, are in possession of the land in dispute as owners and the suit is not maintainable in its present form? OPD 3 to 6. (4‑A) Whether the defendants Nos.3 to 6 are entitled to get possession through specific performance of the contract, dated 5‑5‑1987? (4‑B) Whether the defendants Nos.3 to 6, have no cause of action or focus standi to file this suit? OPD 1 (4‑C) Whether the defendants Nos.3 to 6, are estopped by their act and conduct from filing this suit? OPD 1 (4‑D) Whether the document relied upon by the defendants Nos.3, to 6, are illegal, forged, based upon fraud and misrepresentation? (4‑E) Whether the plaintiffs are entitled to get special costs, if so, up to what extent? (5) Relief. Parties led their evidence; the appellants examined as many as nine witnesses and have also produced documentary evidence i.e. EXh.P.1 to Exh.P.21. Conversely, respondents Nos.1 to 4, examined 13 witnesses besides the documents Exh. D.1 to Exh. D.17. Learned trial Court, by primarily giving findings on Issues Nos. l and 3, in favour of respondents Nos. l to 4, dismissed the suit of the appellant and allowed that of the respondents Nos. l to 4 for specific performance. Hence these appeals. The main reason, which has prevailed with the trial Court, for disallowing the suit, is that the appellants have failed to prove valid gift in their favour.

5. Learned counsel for the appellant, contends that such finding is based upon misreading and non‑reading of evidence. It is stated that appellants had duly established on the record about the factum of gift by Noor Muhammad in their favour on 30‑1‑1987; this fact was further acknowledged by Noor Muhammad, in writing on 9‑3‑1987 Exh.P.2. Besides, independent witnesses namely Tariq Javed and Zafar Ullah have appeared as P.W.6 and P.W.8; they were ex‑Councillors of the area and while appearing in the witness‑box have deposed in unequivocal terms that property was gifted by Noor Muhammad to the appellants. Moreover, reliance is also placed upon the statement of Noor Muhammad, who has appeared as P.W.2, in the matter. On the basis of above, it is argued that all this important evidence has been either ignored or misread by the trial Court.

6. Learned counsel for the respondents has supported the judgment and decrees of the trial Court and stated that as the appellants had failed to prove a valid gift in their favour‑whereas on the basis of the evidence, produced by the respondents, it is established on record that Noor Muhammad, did agree to sell the suit land to respondents Nos. l to 4 on 5‑5‑1987 and had also received consideration amount. Besides part of the consideration has also been deposited by the said respondents with the Agricultural Development Bank, where the property was mortgaged and was got redeemed. Above all, Noor Muhammad, in previous litigation, had denied the factum of gift in favour of appellant and had admitted the agreement to sell in favour of respondents Nos. l to 4, which documents have been adduced in evidence as Exh. P. W.2/ 1 and has been duly considered by the trial Court for reaching a factual conclusion.

7. We have considered the contentions of learned counsel for the parties and perused the record. As regards the factum of gift is concerned, suffice it to say that there is no written document on the record, except the acknowledgment of gift i.e. EXh.P.I, dated 9‑3‑1987. It is also not proved on the record if the alleged factum of gift dated 30‑1‑1987 was given effect in any record maintained by the Government/official department of the State; there is no entry about the said gift in the Revenue Record; appellants never attempted to get the mutation entered or attested; there is also no change in the Revenue Record about the possession under gift. It is settled law that for a valid gift, three factors must be established, firstly offer, by the donor, secondly, acceptance by the donee and thirdly the delivery of possession. Without going into much details about the proof of first two factums, the delivery of possession, under the gift, which is sine qua non for a valid gift, has not been established at all rather while appearing as his own witness as P.W.7, the plaintiff, on the very first question put to him in the cross‑examination, has admitted that the possession of the suit property at the relevant time, was with the respondents; he was not sure, if the said respondents ever delivered the possession to the present appellant in pursuance of the gift or even acknowledged them as owners on the basis of gift, so that constructive possession could be deemed to have been taken over by the appellants.

8. There is no other evidence brought on the record by the appellants, either oral or documentary which could be confidence inspiring or weighty enough to substantiate/prove in their favour. The agreement of learned counsel for the appellants that it should be presumed that a valid gift was made, because the appellants are the real maternal‑nephew of Noor Muhammad, who was about 85 years of age, was issueless and appellants have been looking after him and ever previously he had gifted some 35 acres to the appellant, which gift was never challenged; suffice it to say that all the above pleas, which he wants this Court to presume are not supported by any evidence on the record. It may be pertinent to state here that attitude and conduct of Noor Muhammad in the present litigation, has been called untrustworthy because firstly, he denied the gift in favour of the appellants and admitted the agreement to sell in favour of respondents. Nos.1 to 4, but subsequently, summarsaulted, therefore, his statement in the matter, would not be much relevant rather admission made in another previous litigation, in which, he had denied the execution of gift, in favour of the appellants and admitted the agreement to sell of the said respondents, have been brought on the record and duly exhibited, thus such documentary evidence would prevail over oral evidence now adduced in the present matter. These documents have been duly tendered in evidence, without any objection, from the other side, therefore, the objection now raised by the learned counsel for the appellants that such document cannot be read in evidence having not been duly proved in accordance with law, is not well‑founded. Taking the entire evidence in totality and by proper appreciation and appraisal of the same, we are of the affirm view that no valid gift has been proved in favour of the appellants, rather respondents Nos.1 to 4 have been able to establish an agreement to sell in, their favour, therefore, the judgment and decree of the Court below has been rightly and legally passed. It may be observed that as gift has not been proved in favour of the appellants and Noor Muhammad, who was alive at the time of the decree and even when the present appeal was filed, had not challenged the decree for specific performance in favour of respondents Nos. l to 4, therefore, present appellants have no right to challenge .the decree, for the specific performance, passed in favour of respondents Nos. l to

4. In view of what has been discussed above, we see no force in these appeals, which are hereby dismissed. H.B.T./M‑1299/L??????????????????????????????????????????????????????????????????????????????? Appeals dismissed.