Tariq Mehmood Vs Ghulam Muhammad

JUDGMENT SHEET

IN THE PESHA WAR HIGH COURT, BANNU BENCH

(.IudiciaI Depn-IFnent)

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Civil Revision No.277-11 of 2013.

JUDGMENT

Date of hearing

Appellant-Petitioner 70

Res!on dent

MUHAMMAD YOUNISTHAHEEM- -- Through this revision petition, petitioners have challenged the concurrentjudgments and decrees dated 06.6.2013, passed by. the learned Additional District Judge-I, Karak and judgment and decree dated 20.7.2012 of learned Civil Judge-Ill, Karak whereby the suit as well as appeal were dismissed.

Brief facts of the case are that basically petitioners No.1 and 2 instituted civil suit No.51/I by challenging gift mutation No.618 attested on 30.4.1998 regarding suit land situated in Mouza Dabah Tehsjl & District ICarak attested in favour Ghulam Muhammad son of Muhammad Au, praying for declaratory decree that suit Gift mutation is ineffective upon the inheritance rights of plaintiffs and same mutation is fraudulent, void and ineffective upon the inheritance right of plaintiffs and are entitled for Decree of their shari shares.

Upon this the defendants were summoned and among them defendants No.2 and 3 were transposed as plaintiffs No.3 and 4 vide order sheet dated 10.12.2010 and afterward contesting defendant No.1 submitted his written statement raising various pleas by narrating that gift was made by his father in lieu of love and suit of plaintiffs is baseless and same gift was in their knowledge and be dismissed.

4.The learned trial Court in the light of divergent pleadings of the parties framed following issues.

ISSUES.

Whether the plaintiffs are having the cause of action?

Whether the plaintiffs are stopped to sue?

Whether the suit is time barred?

Whether the gift mutation No.618 dated 30.4.1998 attested by deceased Muhammad Ali in favour of the defendant No.1 is liable to cancellatio,i.?

Whether the defendant No.1 is in possession of the suit property?

Whether the plaintiffs are entitled to the decree as prayed for?

Relief.

The parties in the light of their respective pleas led evidence and after conclusion of trial learned trial Court dismissed the suit vide his judgment and decree \ dated 20.7.2010.

5.Feeling dis-satisuied from the judgment and decree of the learned trial Court dated 20/ 7/ 20 10 the

present petitioners/ plaintiffs file Regular Civil Appeal before the learned District Judge, Karak on 13.9.2012.

The same appeal was entrusted to the learned Additional District Judge-I, Karak for disposal and the same was also dismissed vide impugned judgment and decree dated 03.06.2013.

Feeling aggrieved from the concurrent

findings of fora below the present petitioners filed this revision petition by challenging both the judgments and decrees of two Courts below by raising different grounds therein.

Before this Court both the learned counsel for the parties argued their case at length and with their valuable assistance record perused.

From the perusal of record and arguments advanced by both the learned counsel for the parties it is admitted fact that the predecessor of the parties Mohammad Ali solemnized two marriages. From the one wife he had one son Ghulam Muhammad and one

daughter Mst. Solojani and from the other wife he has two Sons Tariq Mahmood Abid and Maeenullah Khan brothers and two daughters Mst. Nasar Khela and Mst. Khushal Begum. So the parties are step brothers and sisters interse. it is admitted fact that the alleged donor till his death resided together with his family i.e, the parties.

9.The copy of suit Gift mutation is placed on record as Ex.PW2/1 bearing No.618 attested on 30.4.1998 which is verified by two Lambardars, i.e one Allah Noor (DW-I) who is not Lambardar of same Estate and is Lambardar of Mouza Tappi. He appeared as DW- I and during cross-examination deposed that the lambardars of mauza Kanda are Nawab Khan and Malik Karim. The perusal of suit mutation shows that it bears no thumb impression, or signature of donee and the verifying witness does not belong to estates of suit land rtther DW-1 admitted

that he did not know the other sons of deceased Mohanimaci Ali at that time.

10.Patwari Haiqa appeared as PW-1 and produced Rapat bearing No.316 dated 29.4.1998 which is Ex.PW1/1. Rapat No.316 is thumb impressed by alleged donor Muhammad Ali while it also bears the thumb impression of Shoukat Ali. This Rapat is thumb impressed only by one witness and there is no proof on record that these thumb impressions on Rapat were put by alleged donor and Shoukat. Au. This Rapat depicts further that it bears no NIC number, and signature of Girdawar Circle and endorsement of revenue officer concerned. Moreover this Rapat also transpires that important ingredient of gift with regard to offer, acceptance and specially the important ingredient of deliveiy of possession are not mentioned \\ç and specified Parcha Girdawari to show delivery of possession in consequence of alleged gift is not available on record. So such entry in Rapat cannot be

relied upon and is not sufficient and reliable proof of Gift transaction.

The donee/defendant being beneficiary of alleged gift mutation was legally bound to have expressly pleaded that when, where and in whose presence his father offered him the transfer of the suit land by way of gift and had independent advice at that time and respondent No.1 (donee ) has accepted his offer in presence of witnesses and afterward in consequence of said offer and acceptance, possession was specifically delivered to him of the gifted suit land.

Ghulani Muhammad respondent No.1 in his written statement and during deposition as DW-2 did not utter a single word that said land was transferred to him through gift transaction and had not stated the time, date or place with regard to offer, acceptance and delivery of possession. So it is proved that to deprive his step brothers and sisters impugned gift mutation has been attested. In this respect case cited

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as "Muhammad Asqhar and others Vs. Hakam Bibi through L.Rs and others" 12015 CLC 719(Lahore)) is referred. Relevant para reads as follows:

"In this regard It is Important to note that no time, date or place with regard to the offer of gift, its acceptance or delivery of possession is mentioned in the written statement or in the

testimony of the said witness. even in Rapt Roznamcha Waqiati (Exh.D-1)

there is no mention about any date of offer of gift Its acceptance or delivery of possession by the donor to the donee."

The burden of proof was upon donce to prove these important ingieclients vis-ã-vis independent advice at the time of alleged transaction \j. S

of (1ft which he tailed to discharge. i

Moreover the donor took altogether different stance during recording of his statement as DW-2 by deposing that the suit [and was purchased

by his father/donor by his money i.e. consideration amount was paid by him, this stance/plea is not mentioned in the written statement and it is settled law that no one can blow hot and cold in the same breath and cannot travel beyond the scope of his pleadings. So this plea is afterthought, improvement and is self destructing. DW-2 also produced one Salsi Faisala which is not signed by the parties so is not worth consideration and could not be relied upon and conclusion would be that no valid gift has been proved and the learned two Courts below have not adverted to this aspect of the case and failed to appreciate the evidence on record in its true legal perspective.

Reliance is placed on judgment of Hon'ble Supreme Court in case titled "Khushj Muhammad Vs Liauqat A ii" (PLJ 2003 SC 28) about conflicting pleas and "Mst. Kalsoom Bibi and another Vs Muhammad Arif and others" (2005 SMR 135) about burden of proof so the relevant paras No.9 & 10 of same iudo'ments are reoroduced as below:-

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Para No. 9. "ii is a lila//er of record that the deed as such is c/sullen ged on grounds of conspiracy, flikeness and forgery amozinhing to fraud. In these

ewcu,,:slances, the beneficiary u:zder the docu,,ie,si is bound 1101 only to prove the execuiwn of docunieni bit! also 10 pro 1%' the, aclua/factun, of gift by falling back on the f/tree ingredients of pioposa/, acceptance and delivery of possessioi:.

These have 10 be pro vet! indepeitdenl of the docun,e,:t. This courl has 1/nile recently lie/ti in case of G/i u/au: I/aider 2003 ScMR 1829 that esse,:Iials of a va/id gift were requi,ed to be proved ii:dependent of the ileed even if 11 was registered, in case it is chahlei:ged on grounds offorgery etc. Keeping in view the principle so ei:unciated, we tire clear in our n,ind that the defanulants have not produced an jolt, of evide,:ce to prove the original faciuns of gift; the proposal, sJ the acceptance and the delivery of possession. We have a/ready discussed that the possession utiziler the gift has • t, .&• 0iãts e Woo

not been delivered a! all. The gift can be declared void on this score alone arid as well.

Porn No.10. In the iizstant case it is a gift whici, tantamowits to disinheriting the closest of the legal heirs or, even if genuine, it otheni'ise practically disi,:herits the legal heirs. In such giveil circuoLsIances, iehe,,, through a gift, deprivatioi: of legal heirs is involved, either i,ite,,dcd or :uzintended, the burdet: to prove origiizal transaction of gift with all its ingre(lwnt.Y strongly rests, upon the be,:eficiaries of such gift. This Court, in similar

circwn.stunces, had nullified a triussactici: of gift in case of Muhammad A.shraf 1989 SEMI? 1390, he,e the question arose as to why in the presence of legal heirs, particularly the children, the donor s'oiild have gifted out the entire laud to a nephew.

Quite recently in case of Barkat A/i 2O2 ccitt!? JQ?R. u.k I-IiIji-t onen

again reiterated such principle holding iii at in cases of gifts, resulting into disinheriting of the legal heirs, the burden to prove original transaction of gf'i squarely rests upon the ilonees

Such burden has not been touched at

all, izuch less proved."

15.In this case the learned two Courts below had not appreciated the evidence properly in their true legal perspect:ive with due care and caution and are the result of misreading and non-reading of evidence, so are not sacrosanct and are set aside and suit of the petitioners/plaintiffs is decreed in their favour as prayed for with no order as to costs.

Announced. 57~

JUDGE

- **Aza,n/PS* *

CERfl,:IFO rg3E TRk)E

COPY

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