1990 PLP 2027 (CLC)

(1) Whether the plaintiff is owner in possession of the suit land on account of agreement of gift dated 5‑6‑1980? (2) Whether Mutation No.209 attested on 16‑8‑1982 is collusive, without notice, against law and facts and is liable to be cancelled? (3) Whether the plaintiff has got no cause of action or locus standi to bring this suit? (4) Whether this suit is not maintainable in its present form? (5) Whether the plaint is self‑contradictory? (6) Whether the plaintiff is estopped to bring this suit? (7) Whether this suit has not been properly valued for the purpose of court fee and jurisdiction; if so, what is the correct valuation? (8) Whether the suit is mala fide and the defendants are entitled to special costs from the plaintiff, if so; to what extent? (9) Relief. The learned trial Court decreed the suit of the plaintiff on 5‑2‑1986 and the appeal filed by the petitioners in the Court of the learned Additional District Judge‑III, Bahawalnagar, was unsuccessful on 26‑3‑1987.

4. Ch. Naseer Ahmad, Advocate, learned counsel for the petitioners has mooted issues Nos.1, 2, 3 and

4. Issues Nos.1 and 2 are interconnected and the findings on these issues shall effect the findings of issues Nos. 3 and 4.

5. Mst. Bakht Bhari is the only daughter of Muhammad Zaman. Muhammad Zaman intended to perform Haj and he is stated to have donated his property in favour of Mst. Bakht Bhari on 5‑6‑1980. The petitioners alleged that no gift was made in favour of Mst. Bakht Bhari and they acquired the disputed land by oral gift by means of Mutation No.209 which, according to the plaint, is collusive and based on fraud.

6. In this context, Mst. Bakht Bhari has examined Muhammad Nawaz PW 1 who is the scribe of the deed Ex.P.l. He has stated that he had scribed the questioned document and Muhammad Zaman had donated his property in favour of Mst. Bakht Bhari, and had directed Irshad, the husband of Mst. Bakht Bhari who was a tenant at that time, to attorn to the plaintiff. He was subjected to a lengthy cross‑examination, but the petitioners could not elicit anything in their favour from this independent witness.

7. Noor Muhammad PW‑2, who is a marginal witness of the deed, has corroborated the fact that Muhammad Zaman had donated his property to Mst. Bakht Bhari and had directed Irshad, his son‑in‑law, who was in possession of this property as a tenant, to give the share of the produce to the plaintiff. Similarly, Irshad PW‑3 who was in possession of this property, has deposed that Muhammad Zaman had donated his property in favour of his wife and he had been giving the share of the produce to her.

8. Zaman Khan the donor, appeared as PW‑4 and has stated that he had donated his property in favour of Mst. Bakht Bhari, his daughter, as he has no male issue. He has denied having made any gift in favour of the petitioners. He has added that the possession of this property was delivered to the donee and lrshad had been giving the share of the produce to Mst. Bakht Bhari. He has stated that the petitioners snatched the possession by force from Irshad, who was also implicated in a criminal case and he himself lodged a criminal case against the petitioners, which was sub judice at that time..

9. Mst. Bakht Bhari as PW‑5 has supported her case in its entirety and has borne testimony to the fact that her father had donated his property by means of a written deed and her husband was directed to attorn to her and they remained in possession of this property for two and a half years after the said gift and subsequently, they were injured by the petitioners and were got arrested by them in order to snatch the possession from them.

10. The petitioners produced Irshad Ali Patwari DW‑1, who simply produced the copy of the daily diary. Mansoor Ahsan, Record Keeper, DW‑2 produced the copy of Mutation No.209 attested on 16‑8‑1982. Muhammad Amin, a Revenue Patwari, DW‑3 proved Rapt No.342, the copy of which is Ex.D.3/1. He has conceded the fact that, at the titre of the attestation of Mutation No.209, the Headman of Chak No.45/3‑R. was present and the Headman of Chak No. 7/1‑R, where the parties reside, was not present. He has also admitted that Irshad, the son‑in‑law of the donor, was in possession of the land in dispute. 11: Muhammad lqha1 DW‑4 has stated that the land in dispute was donated to the petitioners by Muhammad Zaman. He has admitted in his cross -examination that in a case lodged against the petitioners under section 324 of the P.P.C., he was a defence witness. In this manner, he is a partisan witness and his statement cannot be relied upon.

12. Muhammad Sher DW‑5, who is one of the petitioners, has made a statement that no gift was made in favour of Mst. Bakht Bhari and they were the real donees. He has admitted that Irshad had moved a petition to the Tehsildar that they had endeavoured to snatch the possession of the property in dispute by force and the Tehsildar had made a report.

13. The contents of EX.P.1 need to be scrutinised with care. Muhammad Nawaz, who had written this document, seems to be a semi‑literate person. This document has been proved by Muhammad Zaman, Muhammad Nawa7, Noor Zaman and Noor Muhammad. It manifests that Muhammad Zaman had gifted his entire property in favour of his daughter Mst. Bakht Bhari and the possession' of the same had been delivered to her. The words" written in the head note of this document are of no consequence because the substance of the document is to be seen. The three ingredients of the gift, namely, a declaration by the donor, the acceptance by the donee and the delivery of possession are proved n from this document and the learned lower Courts have made no mistake in concluding that this is in substance a gift deed and not an agreement to make a gift.

14. The learned counsel for the petitioners has contended that EX.P.1 if found to be a gift was compulsorily registrable under section 17 of the Registration Act. I do not subscribe to this view because in accordance with Mst. Ummar Bibi and 3 others v. Bashir Ahmad and 3 others (1977 S C M R 154), a gift deed is not compulsorily registrable and it can be effected even orally or under an unregistered instrument.

15. When the gift deed was executed, in favour of Mst. Bakht Bhari and the ingredients of gift were fulfilled, then it was incumbent on the donor to have revoked this gift in case, he intended to make a gift of his property in favour of C the petitioners. It may be noted that Muhammad Zaman, in his better statement, had admitted the claim of the petitioners that he had gifted his property to them. The petitioners had also filed a suit against Muhammad Zaman wherein he had admitted the suit of the petitioners. His statement on oath, which was subjected to the cross‑examination, has rightly been relied upon by the learned lower Courts.

16. It was pointed out by the learned counsel for the petitioners that in case, fraud was alleged then under section 12 (2) of the C.P.C. Mst. Bakht Bhari should have got annulled Mutation No.209 by filing a petition instead of filing her suit. This argument is devoid of force because the decree was obtained by the petitioners on 14‑10‑1982 and Mst. Bakht Bhari had filed a suit on 20‑9‑1982 i.e. F at the time when the petitioners obtained a decree against Muhammad Zaman, the suit of Mst. Bakht Bhari was pending and it was not imperative on her to have withdrawn her suit and had recourse to the provisions of section 12 (2), C.P.C.

17. The conduct of the petitioners also needs castigation. Firstly, when the mutation was attested, they brought a Headman from Chak No.45/3‑R although they could bring the Headman of their village, Chak No.7/l‑R, who was conversant with the facts of this case. Then Irshad, the son‑in‑law of Muhammad Zaman, was implicated in a case under section 307 of the P.P.C. and the possession of this property was snatched from him. Muhammad Zaman an old F man was beaten by them and a case under section 324 of the C.P.C. was sub judice at the time of the trial of Mst. Bakht Bhari's suit. They were also in haste to bring a suit against Muhammad Zaman and get a decree against him, which, does not bind Mst. Bakht Bhari, as she was not a party to the said suit.

18. As regards the revocation of the gift, it could not be done after the delivery of possession. Section 167 of Muhammadan Law by Mullah, at pages 160 and 161, manifests that no revocation of the gift can be made after the delivery of possession when the donee is related to the donor within the prohibited degrees. The donor and the donee are father and daughter and, in this manner, the gift made in favour of Mst. Bakht Bhari could not be revoked. Even if it be conceded that the subsequent mutation was got attested at the instance of Muhammad Zaman, the latter had no authority to donate his property when it had become the absolute property of Mst. Bakht Bhari and the chances of revocation were scant.

19. It appears that Muhammad Zaman was under the stress of an impending danger that being old, he may not return home after the performance of Haj, so he hastened to make a gift of his property in favour of his only daughter which is a natural phenomena in rural society. The petitioners could not advance any reason why the donor leaned towards them to make an oral gift and what circumstances constrained him to deprive his only daughter Mst. Bakht Bhari of his landed property.

20. Both the learned lower Courts have concurrently found that Mst. Bakht Bhari was donated the land in dispute by her father Muhammad Zaman.

21. The learned counsel for the petitioners had cited Nasir Abbas. v. Manzoor Haider Shah (P L D 1989 Supreme Court 568) and has contended that the learned lower Courts misread the evidence on record and they acted with material irregularity. No misreading of evidence on the record has been pointed H out. Misreading means "that a fact was understood otherwise but was not stated in the evidence as such." No such instance of misreading has been quoted on behalf of the petitioners.

22. The learned lower Courts have taken pains to discuss each and every fact. In the circumstances, this precedent is not applicable to this Civil Revision. Rather, in Riaz v. Muhammad Salim and 4 others (1989 S C M R 1491 and Abdul Hameed v. Ghulam Muhammad and others (1987 S (: M R 1005), it has been adjudicated that the concurrent findings of fact cannot be disturbed in an appeal or a revision petition.

23. In the circumstances, I confirm the findings of the learned lower Courts on issues Nos.l and

2. The plaintiff, who was armed with a valid gift deed had the cause of action and locus standi to bring the suit which was maintainable in its present declaratory form. Issues Nos.3 and 4 were also correctly decided by the learned lower Courts. I, therefore, see no merit in this Civil revision and dismiss the same with costs throughout. A.A./A‑1053/L Revision dismissed.