Syed Mubaraz Hussain Shah etc. vs Province Of Punjab etc.

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

Judicial Department

C. R. No. 192-D / 2021

Syed Mubaraz Hussain Versus Province of Punjab etc.

Shah etc.

JUDGMENT

Date of hearing: 22.06.2021 Petitioners by: Muhammad Ilyas Sh., Advocate.

Respondents By: Ch. Shamas Tabraiz, AAG alongwith Rameesha Javed, A.C., Mahmood Ahmad Bhatti, Tehsildar and Tanveer Hussain, Patwari Halqa, Kallar Saidan.

ABID HUSSAIN CHATTHA, J: The brief facts of the case leading to the instant Civil Revision are that the Petitioners filed a suit for declaration, cancellation of mutation, permanent and mandatory injunction on 01.03.2017 with respect to land measuring 40 Kanals and one Marla fully described in the body of plaint situated in Mouza Kallar, Tehsil Kallar Syedan (Kahuta), District Rawalpindi (the "Property"). Importantly, the Petitioners are also owner in possession of different properties and lands situated in the same Mouza. In the year 2004, it came to the knowledge of the Petitioners that the Provincial Government required land for construction of Tehsil Complex. The predecessors in interest of the Petitioners No. 1 to 5 and the Petitioners No. 6 & 7 approached the Respondents and offered to transfer the Property for construction of Tehsil Complex on the specific condition that the Respondents would use the Property for construction of Tehsil Complex. The Respondents acceded to the proposal and an understanding was reached between them. In order to mutually benefit from the understanding and in order to prove their bona fide, the mode of oral gift mutation was adopted to transfer the Property in the name of the Province of

Punjab. Accordingly, the Property was transferred vide oral gift mutation No. 1013 dated 26.06.2004. However, despite passing of many years no construction work for Tehsil Complex was started by the Respondents despite time to time assurances to the Petitioners in this behalf. Eventually, the Respondents after visiting the Property filed a report stating that the Property is not feasible for construction of Tehsil Complex. The Petitioners felt cheated and filed a suit for declaration and cancellation of the said oral gift mutation. It was asserted by the Petitioners that the possession of the Property was never physically handed over to the Respondents and till today it lies with them.

2.After framing of issues and recording of evidence, the trial Court vide its Judgment and Decree dated 12.02.2019 decreed the suit of the Petitioners with condition that in case the Respondents failed without any reasonable cause to make any satisfactory progress regarding the construction of Tehsil Complex within three years from the date of Judgment, the title of the Property will stand reverted in the name of the Petitioners. Aggrieved from the aforesaid Judgment, the Petitioners filed Civil Appeal No. 190 of 2019 to the extent that the aforesaid Judgment and Decree be modified. The Respondents also assailed the same Judgment of the Trial Court through Civil Appeal No. 152 of 2019. Through consolidated Judgment and Decree dated 13.06.2019, the Appeal of the Petitioners was dismissed and the Appeal of the Respondents was accepted and consequently, the suit of the Petitioners was dismissed. Hence, this Civil Revision.

3.It is admitted position that the Property was owned and possessed by the Petitioners and impugned oral gift mutation was entered and sanctioned without consideration only as a mode of transfer to give effect to the understanding reached between the parties. Primarily and in essence, it was the understanding or agreement which had to be matured or otherwise. The mode of transfer of property was merely a step towards the realization of the understanding. Behind the guise or veil of oral gift mutation, there was nothing else but the understanding between the parties. Notwithstanding the same, when the Respondents backed out from their specific commitment and the Petitioners filed their suit for declaration, the

Respondents attempted to make out a case of valid gift in order to protect the Property. Therefore, it is important to first examine the transaction from the angle of gift as well.

4.In Column No. 12 of the oral gift mutation, it has been stated that it was entered on the basis of oral gift, however, in the order of sanction of mutation dated 26.06.2004, none of the ingredients of the valid gift have been mentioned or incorporated with respect to declaration on behalf of each of the Donors; acceptance on behalf of competent and authorized officer of the Government of the Punjab and delivery of actual and physical possession of the Property. These elements of a valid gift are not recorded in the said mutation or specifically asserted in the written statement. It was specifically pleaded in the paragraph No. 8 of the plaint by the Petitioners that physical possession of the Property was not given to the Respondents. This paragraph was not specifically denied by the Respondents in their written statement. Being beneficiary of mutation (Ex.P-1) Respondents were required to specifically plead and prove the ingredients of valid gift in their written statement and evidence, however, they failed to discharge that heavy onus during evidence.

5.Perusal of paragraph Nos. 4, 5 & 6 of the plaint make it clear that the Petitioner's act of transferring the Property in the name of the Respondents was with the specific condition of construction of Tehsil Complex. In the written statement, paragraph Nos. 4 & 5 of the plaint were admitted to be correct. However, in response to paragraph No. 6 of the plaint it was stated in the written statement that SDO (Buildings) has sent request for approval of estimated costing of funds for construction of the Tehsil Complex and the same will be constructed on approval of funds. It was also claimed that the Property is under the possession of the Respondents and that it will not be used for any other purpose except construction of Tehsil Complex. In Ex.P-1 there is a specific note to the effect that the oral gift mutation in favour of Respondent No. 1 is for the construction of Tehsil Complex. However, there is nothing in writing on record to suggest that the Property was physically handed over to the Respondents or they are making use of the Property. It also evident from record that the Petitioners are the owners in possession of the adjacent and surrounding lands and as a

benevolent act, they had transferred the Property out of their holdings for specific purpose which has been defeated since 2004. Ex.D-2 is an extract from the Register of Haqdaran-e-Zamin in which it is shown that Respondent No. 1 is owner of the Property to the extent of 40 Kanals and one Marla out of Salam Khata consisting of 426 Kanals and 15 Marlas. In the column of cultivator the name of Provincial Government is conspicuously missing. Thus, the physical and actual possession on the Property could not be proved.

6.The learned Law Officer has relied upon case titled, Kamran Ali Khan v. Wazir Imran and 9 others, PLD 2017 Sindh 105 and argued that the gift by the Petitioners in favour of the Respondents was valid but the condition attached thereto regarding construction of the Tehsil Complex was void. In my view, the referred Judgment is not applicable to the facts and circumstances of the present case, for the reason that it has been held therein that the real test of the delivery of possession is to see whether the donor or the donee reaps benefit from the property. In the present case, the Respondents have never alleged to have reaped any benefit from the Property. Even physical and actual possession of the Property was never handed over to the Respondents. The general and vague claim of possession is limited to the extent of verbal statements on papers. There is no formal documents to demonstrate physical possession of the Respondents of the Property. As held earlier, the possession of the Property in the column of cultivators with respect to Salam Khata indicates that physical possession rests with the Petitioners. Considering this aspect, the gift has never been perfected at all. Further, since the understanding between the parties was the essence of the actual transaction, therefore, in my view the gift would be revocable if the condition attached thereto and the actual understanding stood frustrated. This view is strengthened on the basis of actual transaction that preceded the oral gift mutation which was undertaken merely to facilitate the understanding reached between the parties. In the same Judgment, it has been held that Section 167 (1) of the Mohammadan Law by D.F. Mulla states that “A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.” Section 167 (4) ibid provides that “Once possession is

delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift.” Therefore, the revocation of gift which is either not perfected or is subject to a preceding and contingent condition is not an impossibility and it will depend upon the facts and circumstances of a particular case. The referred case is also distinguishable since the matter in issue in the said case was gift in the shape of cash which had been transferred in the bank account of the donee. Learned Law Officer also relied upon the case titled, Mst. Bashiran and others v. Government of Punjab and others, 2010 YLR 1866. The said case is also distinguishable for the reason that in the said case, a gift of land was made in favour of the Provincial Government with the special condition that it will be used for construction of school only. However, despite lapse of substantial time, no school was constructed and the Provincial Government attempted to transfer a part of the gifted property to some other department for some other use. In that context, it was held that the use of the property for any other purpose was illegal and lapse of any length of period did not constitute laches. Accordingly, the transfer was declared illegal and the Government was directed to use the property only for the construction of educational institution. In that case, the donor was not interested to revoke the gift for the alleged breach of condition for which the gift was made. Importantly, in the said case, the condition attached to the gift has been duly recognized and enforced. The case titled, Abdul Rehman and 68 others v. Province of Punjab through Collector, Bahawalpur and 23 others, 2009 YLR 753 is squarely relevant to the facts and circumstances of this case. In the said case, it was held that a conditional gift never becomes absolute and always remains subject to the condition on the basis of which it is made. Hence, in this case, even if it is assumed that ingredients of gift were complete, the gift will always remain conditional and if the government builds the Tehsil Complex, the gifted Property will revert to the owners of the Property when the Tehsil Complex is abolished or condition attached to the gift is extinguished.

7.There is also no denial to the effect that the Respondents have failed to fulfil the condition against which the Property was transferred to them. In evidence, the Respondents produced letters dated 09.06.2015 (Ex.D-3), 05.06.2015 (Ex.D-4), 17.05.2016 (Ex.D-6), 16,12.2017 (Ex.D-7), 16.05.2016 (Ex.D-9), 24.05.2016 (Mark-A), 09.06.2015 (Mark-B), 05.06.2015 (Mark-C) and other letters dated NIL as Ex.D-5, Ex.D-8 and Mark-D. It is clear that these letters are simply an eye wash and show that the Respondents have unreasonably failed to fulfil their commitment after the lapse of more than 15 years and have breached the promise made to the Petitioners which leads to the conclusion that the Respondents have failed to abide by the promise, understanding and the specific condition undertaken by them while transferring the Property in their name. Exhibit D-9 shows that the Respondents have prepared feasibility for construction of Tehsil Complex at another site of 01 Kanal and 04 Marlas. The above communications unequivocally demonstrate that the Respondents have abandoned the purpose and backed out from the condition on which the Property was transferred. Mark 'A' clearly shows that the Property has been declared unfit for the construction of Tehsil Complex. The transaction carried out between the Petitioners and the Respondents was based on an understanding which was dependent upon the construction of the Tehsil Complex on the Property within reasonable period of time. The mode of gift was adopted merely to show the bona fide by the Petitioners so that the Respondents could undertake the preparations for all the logistics required for the construction of the Tehsil Complex. However, non-fulfilment of the promise has disentitled the Respondents to retain the Property.

8.The Appellate Court has erred in holding that the ingredients of gift with respect to offer, acceptance and delivery of possession were complete and that the Respondents have become ultimate owners of the Property. The Trial Court also erred in granting three years to the Respondents to fulfil the specific condition attached to the transfer of the Property altogether ignoring the lapse of inordinate delay of more than fifteen years and evidence to the effect that the Respondents had virtually declared the Property unfit for the construction of the Tehsil Complex.

9.On the factual, legal and equitable plane, the case of the Petitioners is made out. Benevolent act of a citizen in favour of the state cannot be Responded to with exploitation. Rather, the state must respond an act of benevolence with benevolence. In view of what has been discussed above, this Civil Revision is accepted and Judgments and Decrees dated 12.02.2019 and 13.06.2019 passed by the Courts below are set aside and the suit of the Petitioners is decreed as prayed for in the plaint. Accordingly, the oral gift mutation No. 1013 dated 26.06.2004 in favour of the Respondents is cancelled. Decree sheet be prepared accordingly.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*