SYED SAKHI HUSSAIN BUKHARI, J.--- Ms t. Shabbiran Bibi, respondent filed a suit for declaration etc. Against the petitioners/defendants to the effect that she was owner in possession of suit land (measuring 4 Kanals, 7 Marlas) and petitioners/defendants had no concern with the same. The plaintiff/respondent stated that her father, Rasool Bux was owner of land measuring 24 Kanals, 13 Marlas and he transferred the same in her favour vide registered gift deed dated 14.2.1991 and since then she was in possession of the same. She further stated that inadvertently land mentioned in para No. 1 (B) of plaint (measuring 4 Kanals, 7 Marlas out of 13 Kanals, 1 Marla Khewat No. 195/743, Khasra Nos. 1437, 1438, 1439 and 1565, according to record of rights for the years 1987-1988) could not be entered in the registered gift deed. She maintained that her father had transferred his entire land situated in village Baghiari, Tehsil Pasrur in her favour by way of gift and also delivered her possession and since then she was in possession of the same. She alleged that she asked the defendants (legal heirs of Rasool Bux being brothers and sisters) to admit her to be owner of the suit land but they resisted, therefore, she was constrained to file suit.
The petitioners/ defendants mentioned in their written statement that plaintiff was not in possession of the suit land rather they were in possession of the same as owners. On the pleadings of the parties, following issues were framed.
ISSUES:-
(1) Whether the plaintiff has no locus standi and cause of action to file the suit? OPD
(2) Whether the suit is not proceedable in its present form? OPD
(3) Whether the plaintiff is estopped by her words and conduct to file the suit? OPD
(4) Whether the suit is false and frivolous and vexatious and the defendants are entitled for recovery of special cost under Section 35-A of CPC if so, to what extent? OPD
(5) Whether the land measuring 4 kanals, 7 marlas as detailed in para No. 1-B of the plaint was also gifted to the plaintiff by her deceased father alongwith other property on 14.2.1991 and she is entitled for decree as prayed for? OPP
(6) Relief.
The parties adduced evidence in support of their respective claims and suit brought by plaintiff/respondent was dismissed vide judgment dated 28.10.1999. Mst. Shabbiran Bibi, respondent filed appeal against the said judgment, which was accepted vide judgment dated 3.2.2003 passed by learned Addl. District Judge, Pasrur. Hence, this revision petition.
2. E have heard the arguments and perused the record .
3. As mentioned above the plaintiff has filed suit regarding land measuring 4 kanals, 7 marlas situated in Khewat No. 195/743. The case of Mst. Shabbiran Bibi, (respondent/plaintiff) is that her father had transferred suit land in her favour as he transferred entire agricultural land situated in Village Baghiari, Tehsil Pasrur (measuring 24-Kanals, 13 Marlas) but inadvertently suit land could not be entered in registered gift deed dated 14.2.1991. However, case of petitioners/defendants is that Rasool Bux, father of respondent/plaintiff had transferred only land measuring 20 kanals, 6 marlas. The perusal of registered gift deed. Dated 14.2.1991 shows that Rasool Bux had transferred land measuring 20 kanals, 6 marlas situated in Khewat Nos. 53, 59, 61, 67, 138, 142, 217, 254, 279 and 285 in favour of Mst. Shabbiran Bibi, plaintiff/respondent. In gift deed (Ex.P.1) description of land (Khewat, Khatuni and number of total fields) has been given clearly. There 'is no mention of disputed land (measuring 4 kanals, 7 marlas out of 13 kanals, 1 marla Khewat No. 195/743 bearing Khasra Nos. 1437, 1438, 1439 and 1565 mentioned 'in para No. 1-B of the plaint) in Ex.P.1. So her claim is baseless.
4. The plaintiff examined Siraj Din son of Abdullah as PW.1. He stated that Rasool Bux had transferred entire land in favour of his daughter and he (PW.1) had thumb-marked the gift deed. He further stated that Sain Lumbardar and Rasool Bux had also thumb-marked Ex.P.1. And plaintiff was in possession of suit land. During cross-examination he admitted that Ex.P.1 was read over to him before obtaining his thumb-impressions. He also admitted that he and Sain Lumbardar thumbed- marked the same after hearing and understanding the contents of the same. He stated that Rasool Bux died about one year back. The witness stated that Rasool Bux had transferred entire land in favour of her daughter Mst. Shabbiran Bibi by way of gift except one number. It shows that Rasool Bux and marginal witnesses had thumb-marked the gift deed after it was read over to them and that Rasool Bux had not transferred entire land in favour of plaintiff. Sain Ahmad Lumbard appeared as DW.1 and 'stated /that father of Shabbiran Bibi had given her land measuring 20 Kanals, 6 Marlas and he (DW.1) was marginal witness of registered gift deed. He further stated that registered gift deed was read over to him. The witness also stated that her father had not transferred in her favour land measuring 4 Kanals. It is clear from the statements of PW.1 and DW.1 (marginal witnesses of registered gift deed Ex.P.1) that registered gift deed was read over to them before attestation of the same. As mentioned above registered gift deed indicates that land measuring 20 kanals, 6 marlas only had been transferred in favour of Shabbiran Bibi plaintiff/respondent. As such she cannot say that suit land (measuring 4 kanals, 7 marras) was also transferred in her favour.
5. The perusal of Ex.P.1 shows that the same is properly worded gift deed. The description of property has been very clearly stated in the same. The intention _of donor is also clear from Ex.P.1. Admittedly Rasool Bux, donor died about 11/2 years after the registration of gift deed but none raised objection about the gift during his life. It shows that he intended to transfer only land measuring 20 kanals, 6 marlas. The perusal of copy of Khasra Girdawari for Kharif 1989 to Rabi 1993 crops (Ex.D.2) shows that petitioners/defendants were in possession of the suit land as purchasers. This document (Ex.D.2) does not show that Mst. Shabbiran Bibi plaintiff/respondent had obtained possession of the suit land on the basis of alleged gift. The delivery of possession is necessary on the basis of gift. Reliance can be placed on the case of Shamshad All Shah and others v. Syed Hassan Shah and others (PLD 1964 S.C. 143) and the case of Ashiq Hussain and another v. Ashiq A.I (1972 SCM R 50). In these circumstances it becomes crystal clear that donor had not transferred land measuring 4 kanals, 7 marlas in favour of plaintiff/respondent and she had filed suit only to deprive the defendants/petitioners of the suit property. As such learned Trial Court had rightly dismissed the suit brought by respondent/plaintiff. The perusal of judgment dated 3.2.2003 shows that learned Addl. District Judge failed to appreciate the evidence available on record, which has resulted in miscarriage of justice. As such impugned judgment is not sustainable in the eyes of law and justifies interference by this Court.
6. The upshot of the above discussion is that this revision petition is accepted, impugned judgment is set aside and suit brought by Mst. Shabbiran Bibi, plaintiff/respondent is accordingly dismissed.
No order as to costs. .