2019 PLP 1070 (MLD)

ALI BAIG, J.

Through the instant civil second appeal, the appellants have prayed for setting aside the impugned judgment/decree dated 27-11-2017 passed by the learned Additional District Judge Gilgit, whereby the learned 1st Appellate Court has dismissed the appeal of the present appellants/plaintiffs by upholding the judgment/decree dated 28.04.2016 passed by the learned trial court.

2. Brief but relevant facts of the case necessary for disposal of this appeal are that the present appellants/plaintiffs instituted a suit for declaration and possession of suit land fully described in the head note of the plaint against the present respondents/defendants in the trial court claiming that the appellants/plaintiffs and respondend/defendant No.1 are legal heirs of their father late Gul Zaman. Accordingly, the appellants/ plaintiffs are entitled to get their 1/3 Sharia share out of the legacy of their late father Gul Zaman. The appellants/plaintiffs have further averred in the plaint that the appellants are also entitled to get 3 kanals land which was gifted in favour of appellants/plaintiffs by their late father during his life time. The appellants/plaintiffs have also prayed for recovery of some cash amount allegedly left by their father and compensation amount of acquired land which was acquired by the government for construction of River View Road. The appellants/ plaintiffs have also sought cancellation of sale deed and mutation No.3279 vide which the respondent No.1 had sold-out the suit land measuring 13 kanals and 13 marlas situated at Chinar Bagh Gilgit to the respondent/defendant No.2.

3. The respondent/defendant No.1 hotly contested the suit by filing his written statement in the trial court on 02-11-2010 wherein he has raised certain legal objections and has also repudiated the claim of the appellants/plaintiffs by asserting/pleading that initially father of appellants/plaintiffs and respondent/defendant No.1 had gifted 3 kanals land under khasras Nos.2161/3035/3080 situated at Chinar Bagh Gilgit in favour of the appellants/plaintiffs, but the appellants/plaintiffs were not willing to get the aforesaid gifted land and they demanded to gift them another piece of land bearing Khewat No.32/94 khasra No.457 measuring 8 marlas situated at Pull Road Gilgit which was accepted by father of the appellants/plaintiffs and said 8 marlas land was given to the appellants/plaintiffs and remaining suit land was gifted to the respondent/defendant No.1 by father of appellants/plaintiffs and respondent No.1.

4. The learned trial court framed as many as 18 issues in the light of divergent pleadings of the parties. After framing of issues the learned trial court directed the parties to produce their respective evidence as they wished to adduce. Accordingly, the parties led their respective evidence in the trial court. On conclusion of trial, the learned trial court after hearing arguments of the leaned counsel for the parties had dismissed the suit of the present appellants/plaintiffs vide judgment dated 28-04-2016.

5. Feeling aggrieved by the judgment/decree dated 28-04-2016 passed by the learned trial court, the present appellants/plaintiffs had preferred civil first appeal in the Ist Appellate Court. The learned Ist Appellate Court/Addl. District Judge Gilgit vide the impugned judgment/ decree dated 27-11-2017 has dismissed the civil first appeal of the appellants/plaintiffs, hence this civil second appeal.

6. The learned counsel appearing on behalf of the appellants/ plaintiffs contended that the impugned judgment/decree passed by the learned Ist Appellate Court is contrary to law and facts on the record of the case, as such the impugned judgment/decree passed by the learned Ist Appellate Court is not maintainable and liable to be set aside. The learned counsel for the appellants/plaintiffs father argued that initially the learned trial court had framed 39 issues and later on the learned trial court has re-framed/re-arranged 18 issues on 10-03-2016 and has deleted some important issues in absence of the appellants/plaintiffs and their counsel which is illegal and against the rights of the appellants/plaintiffs. The learned counsel for the appellants/plaintiffs further argued that the father of appellants/plaintiffs and respondent/defendant No.1 had gifted three (3) kanals land to the appellants/plaintiffs vide mutation No.4263 attested on 25-05-1966. The learned counsel for the appellants/plaintiffs further argued that being legal heirs of their late father namely Gul Zaman they are entitled to get their share sale-out of legacy of their father, but the learned trial court as well as the learned Ist Appellate Court have wrongly dismissed the suit of appellants/plaintiffs. The learned counsel for the appellants/plaintiffs further argued that the impugned judgments/decrees passed by the learned Ist Appellate Court as well as trial court are result of mis-reading and non-reading of the evidence of the parties, as such the said judgments of courts below are not tenable and liable to be set aside.

7. Conversely, the learned counsel for the respondents/defendants Nos.1 and 2 controverted the argument advanced by the learned counsel for appellants/ plaintiffs and supported the impugned judgment/decree passed by the learned Ist Appellate Court by contending that the learned Ist Appellate Court has rightly passed the impugned judgment/decree in the light of oral and documentary evidence produced by the parties in the learned trial court. The learned counsel for the respondents/defendants Nos.1 and 2 further argued that on the demand of the appellants/ plaintiffs their father had given 8 marlas land situated at Pull Road Gilgit to the appellants/plaintiffs and remaining land was transferred in the name of respondent/defendant No.1 by father of appellants/plaintiffs and respondent/defendant No.1 during his life time and no legacy/ property was left by father of the appellants/plaintiffs at the time of his death.

8. I have heard the learned counsel for the parties at length and have gone through the record with their able assistance.

9. Main thrust of contentions of the learned counsel for the appellants/plaintiffs is that father of the appellants/plaintiffs had gifted 3 kanals land under khasra No.2161/3035/3080 situated at Domial Chinar Bagh Gilgit, to the appellants/plaintiffs vide mutation No.2931 attested on 24-11-1961, Exh. P/2. Admittedly possession of aforesaid gifted land was not delivered to the appellants/plaintiffs during life time of their father late Gul Zaman. In this connection it is observed that under Islamic Law there are essential ingredients of the gift i.e. (i) a declaration of gift by the donor (ii) an acceptance of gift express or implied by or on behalf of the donee and (iii) delivery of possession of the subject matter of the gift by the donor to donee. If the above mentioned three conditions are fulfilled, the gift is complete. In the present case the appellants/plaintiffs have not accepted the gift and in lieu of aforesaid gifted property the appellants/plaintiffs have accepted/ got another piece of land measuring 8 marlas situated at Pull Road Gilgit. Furthermore, the possession of gifted property had not been delivered to the appellants/plaintiffs by their father/donor in his life time. Hence, the alleged gift is not complete in accordance with law. Moreover, the appellants/plaintiffs have filed suit for declaration and possession of suit land measuring 3 kanals on the basis of gift through mutation attested on 24-11-1961, in the year 2010 after lapse of more than 49 years, hence suit to the extent of 3 kanals suit land is hopelessly time barred.

10. From perusal of record it further reveals that father of the appellants/plaintiffs and respondent/ defendant No.1 has gifted his entire landed property measuring 10 kanals 7 marals situated at Chinar Bagh Gilgit vide mutation No.4281 Exh.D/4 which has been mentioned in jamabandi Exh. D/2 prepared in the year 1969-70 wherein name of respondent/defendant No.1 namely Haji Faqir Muhammad is entered as owner of suit land. This fact has also narrated by the D.W-3 namely Abdul Aziz in his statement recorded before the learned trial court. Furthermore, representative of respondents/defendants Nos.3 and 4 who is Naib Tehsildar in his cross-examination has frankly admitted that jamabandi of 1969-70 is prepared in favour of respondent/defendant No.1 on the basis of gift and defendant/respondent No.1 is owner in possession of suit land according to the said jamabandi Exh. D/2. Father of appellants/plaintiffs and respondent/defendant No.1 as per record had expired in the year 1971 and suit land was gifted in favour of the respondent/defendant No.1 in the year 1966, during his life time, hence admittedly no landed property/ legacy was left by father of appellants/ plaintiffs and respondent/ Defendant No.1 at the time of his death as the respondent/defendant No.1 had become owner of suit land during life time of his father Gul Zaman as evident from revenue record produced by the respondent/defendant No.1 in the trial court.

11. For what has been discussed above, I am of the considered view that the concurrent findings of the courts below do not suffer from any illegality, irregularity or infirmity rather the impugned judgment/decree passed by the learned Ist Appellate Court is based upon valid and solid reasons and is entirely in consonance with law and facts. Neither there is mis-reading nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this civil second appeal is without merits and the same is dismissed. File. ZC/191/GB Appeal dismissed.