Dr. Syed Mustafa Kamal Shah vs Syed Abid Ali Shah

2013 C L C 724

[Peshawar]

Before Rooh-ul-Amin Khan, J

Dr. Syed MUSTAFA KAMAL SHAH----Petitioner

Versus

Syed ABID ALI SHAH and others----Respondents

Civil Revision No.48 of 2012, decided 15th October, 2012.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Limitation Act (IX of 1908), Art. 120---Suit for declaration, recovery of possession and perpetual injunction---Plaintiff claimed suit property to have been gifted to him by his deceased mother (donor) through gift deed dated 22-11-1986, thus, her inheritance mutation was wrongly attested on 29-3-1987---Proof---Deed Writer being an Advocate not having Register regarding deeds deposed as plaintiffs witness that he had scribed Gift Deed at plaintiffs directions, but in absence of donor, who was sitting away from his office in plaintiffs motorcar; and that serial number appearing on gift deed had not been written by him---Such statement of Deed Writer was materially negated by plaintiff and marginal witness of gift deed--- Evidence on record showed that on very next day after executing alleged gift deed, donor was got admitted in Hospital, whereafter four days she was shifted to Intensive Care Unit and died there on same day---Death certificate of donor showed that in crucial days she was suffering from mortal sickness, thus, she could not be expected to understand signing of gift deed---Death of donor within six (6) days (i.e. on 27-11-1986) after execution of gift deed on 22-11-1986 had created a serious dint in plaintiffs case and doubt in respect of its execution rendering same to be invalid---Contents of conceding written statement filed by one defendant (plaintiffs brother) had not only been denied by him subsequently, but had not been corroborated by evidence on record- --Inheritance mutation of donor had been entered and attested at instance of such brother of plaintiff, but at time of its attestation, he had not introduced factum of gift deed by his mother in favour of plaintiff---According to son of said brother of plaintiff, his father had informed plaintiff about attestation of mutation---Plaintiff had arranged and produced gift deed after 23 years and never challenged inheritance suit earlier, but filed suit on 26-1-2010 on basis of gift deed, when other legal heirs of deceased donor made application dated 31-10-2010 to Deputy Commissioner for partition of suit land---Nothing on record to show that inheritance mutation was collusive or fictitious---Presumption of truth would attach to the entries of inheritance mutation in absence of any credible evidence in its rebuttal---Suit filed by plaintiff after 23 years of attestation of inheritance mutation was time barred---Revenue record showed plaintiff to be in possession of suit land as joint sharer (hissedar) as one of legal heirs of deceased and not on basis of gift deed---Plaintiff and his another brother had earlier claimed property left by their father on basis of an oral gift, but they failed upto High Court---Such lis showed previous conduct of plaintiff to be habitual and chronic litigant---Plaintiff had failed to prove

declaration of gift by donor, its acceptance and delivery of possession, in absence whereof gift could not be declared as valid---Suit was dismissed in circumstances.

Syed Mustafa Kamal Shah and others v. Syed Feroz Shah and others 1992 CLC 355 rel.

(b)Qanun-e-Shahadat (10 of 1984)---

----Arts. 30 & 31---Admission in written statement made by codefendant---Evidentiary value--- Such admission could not be treated admission against another defendant.

Saeedullah Khan for Petitioner.

Mian Saadullah Jandoli and Bilaluddin Durrani for Respondent.

Date of hearing: 15th October, 2012.

JUDGMENT

ROOH-UL-AMIN KHAN, J.--- Facts relevant for the disposal of this Civil Revision Petition are that the petitioner instituted a suit in the Court of Senior Civil Judge, Charsadda against Syed Abid Ali Shah and 10 others respondents herein to the effect that the property bearing Khasra Nos.326, 1375/375 measuring 27 Kanals, 4 Marlas situated in Mauza Akhun Dheri was the ownership of his mother Mst. Benazira being her dower; that due to a family dispute and settlement of the property some property from the petitioner/plaintiff's share was given to other persons, therefore, in order to compensate the petitioner, his mother gifted the suit property in his favour through deed dated 22-11-1986 and possession was delivered to him; that the revenue record shows the entries in the names of respondents/defendants, as inheritance mutation of Mst. Benazira had been wrongly attested, depriving him from his due share; that the suit property is the exclusive ownership of the petitioner/plaintiff on the basis of gift deed and the respondents/ defendants have got no right whatsoever in the suit property. It was further prayed that the entire mutations including the inheritance mutation of Mst. Benazira are wrong, illegal and liable to be cancelled. The respondents were asked time and again to accept the claim of the petitioner/plaintiff, but they refused to do so, therefore, the suit in hand was filed against the respondents. The suit was contested by the respondents/defendants by filing written statement.

2.After framing issues and recording pro and contra evidence of the parties the learned trial Court dismissed the suit vide judgment and decree dated 14-5-2011. Feeling dissatisfied with the said judgment and decree the petitioner herein filed appeal, which was dismissed by the learned Additional District Judge-II Charsadda vide her judgment and decree dated 3-11-2011. Hence this revision petition.

3.Learned counsel for the petitioner contended that the petitioner had proved his title regarding the suit property as well as the gift deed dated 22-11-1986 by producing sufficient evidence, but even then the learned courts below did not consider the gift deed to be a valid document; that the judgment and decree of the learned trial Court is not in accordance with law and the learned appellate court has not chalked out points for determination, while deciding the appeal, which is in violation of mandatory provision of Order XLI, Rule 31, C.P.C.; that Mst. Benazira mother of the petitioner has lawfully effected the gift deed in presence of the marginal witnesses in favour of the petitioner, at the time when she was in good health and was mentally stable and not on death bed on 22-11-1986 and genuineness of the said gift deed is also proved from the fact that the cognovit has been submitted by respondent No.2, Syed Shaukat Ali Shah by admitting the factum of the said gift deed; that after the gift deed the possession of the gifted area was also delivered to the petitioner by the vendor Mst. Benazira and since then the petitioner had been in possession of the same, but all these facts were ignored by the courts below. He further argued that the minor contradictions, non-registration of the deed and regarding validity of the gift in 'maraz-ul-maut' (death bed) are not fatal to the case of the petitioner.

4.On the contrary the learned counsel for the respondent argued that the courts below have unanimously held that the gift deed in question was not proved by any cogent, reliable and trustworthy evidence by the petitioner; that the requirements of the gift deed regarding possession was legally not fulfilled, therefore, the gift deed was rightly not considered to be valid by the learned courts below.

5.I have heard the learned counsel for the parties at length and minutely gone through the record of the case.

6.Record reveals that the deed writer appeared before the trial Court and recorded his statement as P.W.l. In examination-in-chief he has admitted this fact that the entire contents of the deal has been executed on the directions of the plaintiff/petitioner. He has categorically stated that at the time of writing of the deed the donor Mst. Banazira was not present in his office and after reducing the deed into writing he went down from his office and got signed from the donor, who was sitting in the motorcar of the plaintiff/petitioner. He has also admitted this fact that he is not in possession of Register regarding deeds and similarly he has not entered the deed dated 22- 11-1986 in any register. According to the statement he has not written any Serial number on the gift deed and in unequivocal terms denied the writing of Serial No.1118 in the following words:- The record further reveals that as per his statement deed was scribed at District Courts Peshawar and that Mst. Benazira was not present at the time of scribing of the deed. His statement was negated by plaintiff as well as marginal witnesses. According to the statement of Shah Yousaf marginal witness who recorded hisstatement as PW-3. The contents of the deed were properly entered by the scribe in his Register and he signed not only the gift deed but also the Register of Syed Sadaqat Hussain Advocate, Peshawar. The plaintiff also negated the statement of scribe by saying that deed was scribed in District Courts Charsadda. He further negated the statement of scribe by saying that marginal witness and Mst. Benezira put three signatures each in respect of the gift deed. The marginal witness of the deed dated 22-11-1986 i.e. PWs 1-and 2 have allegedly signed the deed in the office of the deed writer namely Sadaqat Hussain Shah and have not witnessed the signature of the donor on the deed, as she was sitting in the motorcar and the witnesses had not accompanied the PW from office to the motorcar. From the statement of scribe, marginal witnesses and plaintiff I am of view that the execution of the deed has not been proved in accordance with law. Mst. Benezira being donor was admittedly not present at the time of scribing of the deed. Similarly she did not purchase the stamp paper and all the ingredients/contents of the deed were introduced to the scribe by plaintiff/appellant himself and not by Mst. Benazira. Another interesting and important fact in the instant case is that the alleged

gift deed was executed on 22-11-1986 while Mst. Benazira was got admitted in Khyber Teaching Hospital on the following day i.e. 23-11-1986. She was then shifted to I.C.U. where she died on 27-11-1986 at 2-20 a.m. and this fact is not denied. In this regard death certificate along with proper record from Khyber Teaching Hospital was requisitioned and was exhibited in court. The death certificate reveals that Mst. Banazira donor was an old lady aged 80 years, who died in ICU KTH Peshawar on 27-11-1986 at 2-20 p.m. (due to cardiac arrest diabetic, hypertensive and urmmia). The date of admission, on the death certificate has been shown as 23-11-1986. This certificate divulges that in the crucial days the donor was suffering from mortal sickness and in such a condition she could not be expected to understanding the execution and signing of the gift deed in question. It is admitted fact that Syed Shaukat Ali Shah is neither a witness to the alleged gift deed nor has shown his presence or awareness at the time of execution of gift deed. His cognovit is not supported by any evidence. Moreso, during the proceedings before the trial Court Syed Shaukat Ali Shah has denied filing of any such statement. The admission of Mst. Benazira in the Hospital, and particularly in the Intensive Care Unit, on the next following day of the execution of the alleged gift deed has created serious doubt in respect of the execution of gift deed. Her shifting to I.C.U. and then her death within 6 days has created a serious dint in the case of the petitioner, rendering the gift deed to be invalid. It is also on record that the inheritance mutation of Mst. Benazira bearing No.1659 was attested on 29-3-1987 and from the Column No.13 of the said mutation it is evident that it was attested at the instance of plaintiff's brother namely Syed Shaukat Ali Shah who as per petitioner's version has admitted his claim by submitting cognovit in favour of the plaintiff. It is settled law that admission in written statement of a co-defendant is not evidence in the case and could not be treated as admission against another defendant. On overleaf of the alleged cognovit, the statement of Syed Shaukat Ali Shah has been recorded in fantastic manner, which is totally unprecedented in the proceedings before the Civil Court. Even if the cognovit submitted by Syed Shaukat Ali Shah in favour of plaintiff is presumed to be true, even then the question arose as to why Syed Shaukat Ali Shah did not introduce this fact of gift by his mother in favour of his brother at the time of attestation of inheritance mutation of his mother. So far as to cognovit filed by defendant No.2 namely Shaukat Ali Shah is concerned, it is pertinent to mention that he then submitted an application for withdrawal of the cognovit, which application was contested and, vide order of the trial Court dated 9-4-2010 was dismissed. Revision petition against the order dated 9-4-2010 was also dismissed by Additional District Judge vide his order dated 8-6-2010. Application for withdrawal of cognovit and the revision petition show that in fact Syed Shaukat Ali Shah has not filed any statement before the Court. Today, Qaim Ali Shah son of Syed Shaukat Ali Shah present in the Court stated at the Bar that the inheritance Mutation No.1657 dated 24-3-1987 has been entered and attested in the presence of his father Syed Shaukat Ali Shah in the year 1987. His father had informed the petitioner about the above stated inheritance mutation, but later on i.e. almost after 23 years; the petitioner arranged and produced the alleged gift deed.

As stated earlier that the lady died in the year 1986 and her inheritance mutation was attested in the year 1987, while the present suit was filed on 26-1-2010. The petitioner kept mum during this long period of 23 years and he did not try to challenge the inheritance mutation because all the legal heirs of Mst. Benazira were properly entered as owners in the subsequent revenue record. The instant suit was brought in the year 2010, when the respondents approached Deputy District Revenue Officer through application dated 31-10-2009 for partition of the suit property.

There exists not an iota of evidence to indicate that the inheritance mutation of Mst. Benazira was collusive or fictitious. This mutation was never challenged by the petitioner for the last 23 years from the institution of the suit, nor the entries made in the Revenue Record. A presumption of truth is attached to these entries and in the absence of any credible material to rebut the said presumption, the trail court has rightly dismissed the suit of plaintiff, as per Article 120 of the Limitation Act period of limitation is six years for declaratory suit, but in the present case suit was filed after 23 years of attestation of mutation. It is worth-mentioning that the plaintiff relied upon the cognovits submitted by Syed Shaukat Ali Shah his brother and defendants/ respondents Nos.9, 10 and 11. Defendants/respondent No.9 is Mst. Mehtab Shah who is wife of plaintiff, defendant No.10 is Umar Kamal who is son of petitioner, while defendant/respondent No.11 Akbar Kamal is also the son of petitioner. No relevancy was shown

by the plaintiff/petitioner's counsel as to why Mst. Mehtab Shah, Umar Kamal and Akbar Kamal were made parties in the suit. Therefore, the cognovit filed by the three defendants- respondents in favour of the plaintiff- petitioner has got no value. Another important question is with regard to the possession of the gifted property, which is an essential ingredient for a valid gift. In this respect Patwari Halqa was examined as P.W.4. (Patwari). As per Revenue Record the petitioner/plaintiff has been shown in possession, but not on the basis of the gift deed, rather he has been shown in possession as joint sharer (Hissadar) and one of the legal heirs of Mst. Benazira. The Patwari Halqa also stated that the said gift deed has not been incorporated in the Revenue Record and entries were properly made in favour of all the legal heirs after attestation of inheritance mutation of Mst. Benazira, therefore, I am of the considered view that the petitioner had got no locus standi to file the suit in hand. In support of his contention regarding possession, the petitioner had produced the Khasra Girdawari Exh.P.W.4/8, which reveals that Umar Kamal Shah and Amir Kamal Shah are in possession of the property in dispute as 'Hissadaran' while in the column of ownership Syed Shaukat Ali Shah and others have been shown as owners of the property and except the Jamabandi for the years 2006 to 2010 the petitioner has failed to bring on record an iota of evidence to slightly suggest the delivery of possession by Mst. Banazira to him in the year 1986. The respondents produced reported judgments of this Court titled Syed Mustafa Kamal Shah and others v. Syed Feroz Shah and others (1992 CLC 355), wherein the present petitioner had claimed that his father, who happened to be an Advocate by profession, was owner of landed property in two different villages of Tehsil and District Charsadda. He purported to make oral gift of about 268 Kanals of land in favour of Syed Mustafa Kamal Shah, while 148 Kanals 8 Marlas was gifted in favour of his another son namely Syed Abid Ali Shah. The step-brothers namely Feroz Shah and others challenged the validity of the gift on the ground that the gift deed had been made by the donor (Syed Qaim Shah) under the influence of donor's second wife (Mst.Banazira mother of petitioner) and having been made during the death bed illness. The above suits were ultimately decided by this Court in the following terms:---

"As a result of what has been discussed above, it is abundantly clear that in all these gift transactions neither offer by the donor nor acceptance by the donees nor delivery of possession by the former to the latter of the disputed lands either actual or constructive has been satisfactorily proved. The finding of the learned appellate Court on the point of want of delivery of possession in pursuance of the impugned gift transactions is thus affirmed. In the circumstances, all the three civil revisions are without merit and are accordingly dismissed with costs".

The above mentioned lis shows the previous conduct of the petitioner, to be habitual and chronic litigant. The petitioner has miserably failed to prove the declaration of gift by donor; its acceptance and a delivery of possession. In absence of the above said three ingredients the gift could not be declared as a valid gift. The plaintiff/petitioner has failed to discharge his burden of proof.

From the above discussion I have come to the irresistible conclusion that the suit filed by the petitioner merited dismissal as held unanimously and rightly too by the learned Courts below in the impugned judgments and decrees. Thus, there is no substance in this revision petition, which is consequently dismissed with no order as to costs.

SAK/42/P Revision dismissed.