2017 PLP 6 (CLCN)

MUHAMMAD TARIQ ABBASI, J.

By way of this revision petition the judgments and decrees dated 24.01.2011 and 17.11.2012, respectively passed by the learned Civil Judge and the learned Additional District Judge, Gujjar Khan District Rawalpindi, have been called in question. Through the above said former judgment and decree a suit for declaration and permanent injunction, filed by the petitioner, against the respondents has been dismissed, whereas through the latter judgment and decree an appeal preferred by the petitioner has also been turned down.

2. Brief facts of the case are that the petitioner through a declaratory suit challenged the gift mutation No.674 dated 30.04.2004 made by Muhammad Ashraf in favour of Mst. Maqsoodan Begum (respondent No.1) and subsequent mutations Nos.698 and 701 dated 30.04.2005 by the respondent No.1 in favour of Zahid Hussain (respondent No.4) on the ground that the above mentioned earlier mutation was result of misrepresentation, fraud and collusiveness, hence not acceptable under the law and that when the earlier mutation was illegal, the subsequent had automatically become null and void. The said suit was contested by the respondents by way of written statements and consequently the learned Trial Court framed following issues:-

1. Whether plaintiff is entitled to decree for declaration along with permanent injunction as prayed for? OPP. 1-A. Whether defendant No.1 is not owner in possession of suit property under a valid gift? OPP.

2. Whether mutation No. 674 dated 30.04.2004 executed by Muhammad Ashraf deceased in favour of defendant No.1 Mst. Maqsooda Begum is collusive if so what its effect? OPP.

3. Whether plaintiff has no cause of action, conceal the real facts of the case and not come in court with clean hands? OPD.

4. Whether suit is bad for non-joinder and mis joinder of necessary parties? OPD.

5. Whether suit is false, frivolous and vexatious and plaint is liable to be rejected under Order VII, Rule 11, C.P.C. with special costs under section 35-A, C.P.C.? OPD

6. Whether this court has no jurisdiction to entertain upon the matter? OPD.

7. Relief.

3. Oral as well as documentary evidence of both the parties was recorded and ultimately the suit was dismissed through judgment and decree dated 24.01.2011. An appeal filed by the petitioner also met the same fate through judgment and decree dated, 17.11.2012. Consequently, the revision petition in hand.

4. It is contended by the learned counsel for the petitioner that judgments and decrees of both the learned courts below being based on conjectures, surmises, misreading and non-reading of the material available on the record, are not acceptable under the law and liable to be set aside.

5. Arguments heard and record perused.

6. The making of a valid gift is dependent upon three essential requirements as are enumerated in section 149 of the book of Muhammadan Law by D.F. Mulla:-- (1) A declaration of gift by donor. (2) The acceptance of gift by the donee. (3) Delivery of the possession of the subject property of the gift by the donor to the donee. In the case of Siraj Din v. Mst Jamilan and another (PLD 1997 Lahore 633) it is laid down that when making of a gift have been claimed by a legal heir then the three ingredients of declaration of the gift, its acceptance by the donee and delivery of possession must be proved. All the elements of a valid gift in favour of respondent No.1 by her father Muhammad Ashraf are proved in the instant case by confidence inspiring evidence. Ghazanfer Ali was produced by the petitioner/plaintiff himself as PW-2 and the said PW while appearing in the witness box had admitted that in the presence of Tehsildar in a public meeting the mutation of gift was sanctioned and on inquiry by Tehsildar, deceased Muhammad Ashraf accepted that he was making gift with his own free will. Muhammad Pervez when appeared in the witness box as PW-3 had admitted that respondent Maqsoodan Begum was in possession of the suit property. Hence the basic three ingredients of a valid gift, were fulfilled, as held by the Hon'ble Supreme Court in the case of Mst. Nagina Begum v. Mst. Tahzim Akhtar and others (2009 SCMR 623).

7. There appears to be no controversy between the parties that Muhammad Ashraf was the original owner of the suit property and he transferred it in favour of his daughter (respondent No.1) through registered gift deed No.674 dated 30.04.2004. During life time of the above named, the petitioner never objected to the mutation in question, in any manner whatsoever. Even after death of Muhammad Ashraf on 20.06.2005, the petitioner remained satisfied and then filed the suit on 29.10.2005. No doubt, it is true that a gift executed by a sick person dependent at the mercy of his legal heirs under compelling circumstances, is illegal and is not binding upon donor but is equally true that in the present case nothing exists on the file to indicate that Muhammad Ashraf, father of the parties was sick and infirm at the time of execution of the document in question and the same had been obtained by the respondent No.1 through fraud, coercion and undue pressure.

8. The record shows that during life time Muhammad Ashraf, (deceased) neither revoked the gift nor he made any indication of any fraud or undue influence exercised on him to constitute the said gift. It is also available on the record that after the gift deed, a subsequent mutation of sale was also executed jointly by the respondent No.1 and the deceased Muhammad Ashraf. The above mentioned is also an indication that all the proceedings by Muhammad Ashraf, were in accordance with law.

9. It is available on the record that at the time of execution of the above mentioned document and even thereafter, the above-named donor remained healthy, therefore the version narrated in the plaint that the donor was not in senses, could not be established on the record. The mere assertion of the petitioner that a fraud had been practised upon him and he had been deprived of his share in the estate of Muhammad Ashraf (deceased), without a positive attempt on his part to substantiate the same, is of no consequence. Needless to add that it is very easy to assert fraud but it is difficult to prove the same. I an fortified in my view from the dictum laid down in the case of Ghulam Ghous v. Muhammad Yasin and another (2009 SCMR 70).

10. The above mentioned gift deed is registered document, hence presumption of truth is attached to it, until and unless it is rebutted through strong and cogent evidence and the petitioner has failed to bring any such evidence on the record. Therefore, no reason, cause or justification to hold the document otherwise. In this regard, reliance can be made to the cases of "Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others" (1993 SCMR 462) and "Abbas Ali Shah and 5 others v. Ghulam Ali and another" (2004 SCMR 1342).

11. It has further been observed that Muhammad Ashraf (deceased) till his death resided with respondent No.1 and the respondent No.1 during his life time remained with him and looked after him which was a valid reason for gifting the property to her and the present petitioner came into picture after the death of the above named executant, just to get his property.

12. Concurrent findings of two courts below with regard to the validity and genuineness of gift were recorded against the petitioner which are not interferable in revisional jurisdiction in view of the dictum laid down in the case of Muhammad Ali Khan v. Muhammad Ashraf (1989 SCMR 1415).

13. No illegality, irregularity or jurisdictional error, in the concurrent findings of the learned courts below, which resulted into the impugned judgments and decrees, could either been pointed out or observed. Resultantly, the revision petition in hand being devoid of any force and merit is dismissed in limine. ZC/R-3/L Revision dismissed.