2022 PLP 1973 (CLC)

SHAHID WAHEED, J.

This application under Section 115, C.P.C. is of the unsuccessful plaintiffs and seeks revision of the concurrent findings of the two Courts below whereby their declaratory suit was dismissed.

2. The pleadings, in this case, unfurl that the dispute is related to an unpartitioned share of land measuring 163 kanals 8 marlas out of total land of 467 kanals, 18 marlas situated within the revenue estate Baghsingh Wala, Tehsil and District Kasur. This land belonged to Taj Din who was unmarried and had two brothers, namely, Nawab Din and Siraj Din and both of them had died. The plaintiff No.1 was the son of Siraj Din whereas other plaintiffs and defendant No.1 were the daughters and sons of Nawab Din. The defendant No.2, Muhammad Zahid is the son of defendant No.1. Taj Din passed away on 2nd January, 1998, and after his death, the plaintiffs probed the revenue records and found that the disputed land, based on two documents, had already been mutated in the name of defendant No.1. The first document was the registered General Power of Attorney No.67 dated 20th January, 1994 (Ex.P-1) in which the defendant No.2 was stated to be the attorney of Taj Din, and the second document was the registered deed No.1861 dated 23rd April, 1994 (Ex.P-1 = Ex.D-1) by which defendant No.2, based on the first document, gifted the disputed land to his father (defendant No.1). This transaction was incorporated in the revenue record vide mutation No.154 dated 29th November, 1995 (Ex.P-3). The plaintiffs then on 30th March, 2000 instituted their suit seeking declaration to the effect that Power of Attorney (Ex.P-1), gift deed No.1861 (Ex.P-2) and mutation No.154 (Ex.P-3) were illegal and had no effect on their rights. The rationale of their challenge was that Taj Din was over 90 years old at the time of alleged execution of the documents and that he had lost his senses and eyesight, and since the defendant No.1 was a Lambardar, he fraudulently, firstly by obtaining a thumb-mark of Taj Din on the first document got appointed his son as general attorney and then from him got transferred the disputed land to his name through gift deed and mutation. On the other hand, the defendants Nos.1 and 2 through their joint written statement denied the allegations and maintained that Taj Din in his lifetime and his full senses had appointed Muhammad Zahid (defendant No.2) as his general attorney to look after the affairs of the disputed property, and one of the powers granted to Muhammad Zahid was that he could gift the disputed property, and that based on said power, the attorney validly gifted it to his real father (defendant No.1).

3. The divergent stances of the parties to the suit led the Trial Court to frame issues and to record evidence thereon. On consideration of the evidence available on record, the Trial Court dismissed the suit vide judgment and decree dated 15th November, 2010. Against this decision the plaintiffs took an appeal to the District Court. Their appeal was heard by the Additional District Judge, Kasur but it could not evoke a favourable response and the same was dismissed vide judgment and decree dated 27th November, 2012. So, this revision.

4. Name of learned counsel for respondents Nos.3 to 5 duly reflects in the cause list, nonetheless, no one is present on their behalf. Despite service, no one is present on behalf of respondents Nos.9 and

10. Thus, respondents Nos.3 to 5, 9 and 10 are proceeded against ex-parte. Respondents Nos.6 to 8 have already been proceeded against ex-parte vide order dated 27th June, 2019.

5. After hearing both the sides, it appears that the allegations of fraud, though are important and require a meticulous appraisal of evidence available on record, but I think, they may be put on the back-burner, so as to first consider the prime question, that is, assuming the General Power of Attorney (Ex.P-1) is valid (without declaring it so), whether the defendant No.2, exercising power under it, could transfer the disputed property to his father (defendant No.1) as a gift. It is to be noted that gift is a personal action which can be performed by the owner himself only and for that reason, it is now well settled that the agent cannot of his own transfer the immovable property of the principal/owner through gift based on any power of attorney, even if the power of attorney contains the power to transfer the property through gift. In the case of "Ijaz Bashir Qureshi v. Shams-Un-Nisa Qureshi and others" (2021 SCMR 1298), it has been held that such powers can only be used for completion of codal formalities of the gift which must be by the owner himself and if on the contrary a transfer is made, it will be invalid. In the present case, the gift was allegedly based on consideration of love and affection of Taj Din for his nephew, Muhammad Ali, defendant No.1, which he had developed in lieu of his services. Love and affection, as per above-stated principle, could not be expressed by the attorney (defendant No.2) on behalf of Taj Din. The sentiments which were the consideration for gift and also the intention to make it must be established to have come in clear terms from Taj Din. On the contrary, a perusal of the evidence available on record does not suggest that the attorney (defendant No.2) before executing gift deed (Ex.P-2) or making gift in favour of his father (defendant No.1) ever obtained the consent and permission of Taj Din, and recitals of the gift deed (Ex.P-2) indicate that the attorney, of his own, had transferred the property through gift to his father, which was not permissible under the law. There is yet another aspect of the matter. According to "Ghulam Haider v. Ghulam Rasool and others" (2003 SCMR 1829) and "Mst. Kulsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135) a donee claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case, the defendant No.1 was the beneficiary of the transaction but he did not appear as his own witness to substantiate the stance stated by him in his written statement and also to prove the essential ingredients of gifts, and his two witnesses, that is, DW-2 and DW-3 though stated in their statements that Taj Din had told them that he wanted to give his land to defendant No.1, but both the witnesses did not say that Taj Din ever declared that he had given his land as a gift to defendant No.1. So, the conclusion would be that there was no evidence of declaration of gift by Taj Din or its acceptance by defendant No.1. In fact, the defendant No.1 in his written statement did not state that Taj Din had ever made the gift, but his stance was that the defendant No.2-attorney had gifted the disputed land to him on the basis of General Power of Attorney (Ex.P-1). In these attending circumstances, mere transfer of possession to defendant No.1 was not sufficient to constitute a valid gift, nor could the gift deed (Ex.P-2), per the judgment reported as "Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others" (2002 SCMR 1938), be held valid as it did not justify the disinheritance of other heirs from the gift. All these legal aspects of the matter escaped from the consideration of the two Courts below and thus, they fell in error while returning their findings.

6. Faced with the above legal position, the learned counsel for the defendants sought to cover up the shortcomings by referring the contents of para 5 of the written statement which stated that the defendant No.1 had instituted a suit for declaration of title on the basis of gift, and since Taj Din while appearing in that suit had admitted the gift, the suit was withdrawn. The gist of this argument is that since Taj Din had never questioned the gift in his lifetime, the plaintiffs had no right to challenge it. Upon hearing this argument, I asked the learned counsel as to whether the above-referred statement of Taj Din and order of the Court were presented in evidence before the Trial Court. He submitted that this was not done during trial, but even so, to satisfy this Court two applications for their production as additional evidence were filed. I then examined the record and found that the defendants had filed two miscellaneous applications for additional evidence. They were C.M.No.01-C of 2016 and C.M.No.02-C of 2016. It is an admitted fact that the second application i.e. C.M.No.02-C of 2016 was dismissed as withdrawn vide order dated 1st December, 2016, whereas the first application (C.M.No.01-C of 2016) was dismissed for non-prosecution vide order dated 1st October, 2019, and thereafter no effort was made to get it restored. Given the circumstances, the above-stated argument loses its efficacy due to lack of supporting evidence. Notwithstanding the above, to meet the ends of justice, I examined the documents attached to C.M.No.01-C/2016, and they were (i) copy of plaint (ii) copy of written statement (iii) copy of application for temporary injunction and its reply, and (iv) copy of proceedings-sheet of the Court. In all these documents three things were stated, firstly, that Taj Din had appointed Muhammad Zahid (defendant No.2) as his general attorney, and secondly, Muhammad Zahid based on general power of attorney gifted the disputed land to his father (defendant No.1) and, thirdly, that upon the execution of gift deed the defendant No.1 had become absolute owner, but Taj Din had illegally started claiming his ownership over the disputed land. The averments made in the plaint of said suit suggest that Taj Din had never accepted the gift. The fraud of the defendants also became clear from the statement of defendant No.2 which he made in that suit. He stated that he was the general attorney of Taj Din son of Din Muhammad, and that he had gifted the property to Muhammad Ali on 24th April, 1994. It means that the attorney had gifted the disputed property without getting approval of Taj Din, and that was illegal.

7. The defendants' counsel then tried to persuade me to decline the revision on the ground that the suit brought by the plaintiffs was out of time, but there was no substance in it. It has now been established that the gift was not valid, and since the plaintiffs and the defendant No.1 were the legal heirs of Taj Din, the defendant No.1 would be considered to be in constructive possession of the disputed land on behalf of all the legal heirs, in spite of his exclusive possession and the cause of action would be deemed to have arisen when the plaintiffs were denied their rights. In the present case, the plaintiffs were denied their rights when Taj Din passed away on 2nd January, 1998 and the suit was within time from that date. Even otherwise, it is now well settled that limitation does not run against co-sharer, nor can it be allowed to form the basis for depriving a legal heir of his share in the inheritance. This view finds support from the cases of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1) and "Muhammad Anwar and 2 others v. Khuda Yar and 25 others" (2008 SCMR 905).

8. Lastly, it was contended that the plaintiffs were estopped by their words and conduct to challenge the gift. Elaborating this plea it was submitted that the plaintiff No.1 had brought the proceedings before the Revenue Officer for getting separate possession of his share by partitioning the total land measuring 467 kanals, 18 marlas and in it, he had not claimed any share in the disputed land or the land of Taj Din, and thus, after partition proceedings, he could not be allowed to make any grouse. To prove it reference was made to (i) copy of application dated 25.06.1995 for partition of land (Ex.D-2), (ii) copy of Naqsha Alif (Ex.D-3), (iii) copy of order dated 25.08.1997 of the AC (Ex.D-4) and (iv) copy of memorandum of appeal dated 24.09.1997 (Ex.D-5). I am afraid these documents do not extend any help to the defendants, for, firstly, all these documents were signed/executed before the date of the death of Taj Din. It means that partition proceedings were initiated during the lifetime of Taj Din and also terminated before his death and thus, there was no occasion to claim any share in the inheritance of Taj Din, and secondly, the plaintiffs nowhere in these documents stated that they had relinquished or surrendered their share. Thus, they could not be estopped to maintain their declaratory suit.

9. The result is that this application succeeds and the revision sought for is granted, consequently, the judgments and decrees of the two Courts below are accordingly set aside and the suit of the plaintiffs is decreed as prayed for with no order as to costs. ZH/M-158/L Revision allowed.