' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal, by leave, has been filed to challenge the judgment and decree passed by the High Court on 18-4-2003.
2. The facts are that the predecessor-in-interest of the present respondents filed a suit for cancellation of gift-deed dated July 15, 1995 against the appellant and pro forma respondents herein in the Court of Civil Judge, Samahani. The suit was resisted by the opposite side, hence issues arising out of the pleadings of the parties were framed. The trial Court received the evidence from the respective parties and after hearing them dismissed the suit. The respondents preferred an appeal before the District Judge, Bhimber which was accepted and a further appeal filed on behalf of the appellant and pro forma respondents before the High Court also failed. Hence, this appeal.
3. Mr. Muhammad Yunus Tahir, the learned counsel representing the appellant, argued that both the Courts below, the District Judge and the learned Judge in the High Court, have failed to appreciate the evidence in the light of pleadings. It was contended that according to the issues framed by the trial Court the burden of proof rested upon the shoulders of respondents who did not discharge the same. The learned District Judge and the learned Judge in the High Court fell in error in granting decree in favour of the respondents. It was also argued that it was claimed in the suit that a fraud was committed, hence a heavy burden lies upon the respondents to substantiate their claim. The learned counsel read over the pleadings and issues framed on their basis and referred the following authorities in support of his contentions:--
(1) Abdul Malik and others v. Muhammad Latif and other 1993 SCR 335 and (2) Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K)
139.
' Raja Hassan Akhtar, who appeared on behalf of the respondents, while controverting the arguments addressed on behalf of the appellant, argued in the following manner:--
(i) That the predecessor of the respondents never executed any gift-deed in favour of the appellant and pro forma respondents. It was maintained that he never appeared before the Sub- Registrar for registration of any gift-deed in respect of the suit-land owned by him; and
(ii) that there was no reason shown in the gift-deed as to why a gift-deed was executed in favour of the appellant and pro forma respondents particularly when he had a son and a wife. It was also argued that the execution was denied by the predecessor of the respondents, therefore, the burden of proof was required to be placed on the party in whose favour the gift-deed was claimed to be executed. It was further argued that the execution was not proved by producing any marginal witness or its scribe, therefore, no reliance could be placed on the aforesaid document.
The learned counsel referred to the following authorities in support of his contentions:-
(1) Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932; (2) Muhammad Ashraf v. Bahadur Khan and others 1989 SCMR 1390; (3) Rashid Ahmad and others v. Sardar Bibi and others 1994 MLD 467 and (4) Riasat Ali v. Sardar Ali and 7 others 1994 CLC 475.
5. We have heard the learned counsel for the parties and also gone through the record carefully.
The necessary facts for the disposal of this appeal are that the predecessor of the respondents filed a suit before the Civil Judge Samahani claiming therein that a fraud has been committed by registering a forged gift-deed. It was claimed that he never appeared before the Sub-Registrar as such the same was illegally registered. The trial Court framed issues and received evidence from both the parties. After hearing the parties the suit was held to be dismissed. However, an appeal filed on behalf of the respondents was accepted by the District Judge, Bhimber. Aggrieved by the aforesaid judgment and decree an appeal filed by the appellant and pro forma respondents was dismissed by the High Court.
6. The learned Judge in the. High Court through an exhaustive judgment held that no reasons were shown in the gift-deed as to why the same was executed in favour of the appellant and pro forma respondents particularly when the donor had a wife and a son living with him and no reasons were found to deprive them from his property. It was also held that burden of proof should have been placed on the defendant-appellant and pro forma respondents when the execution was denied.
The learned Judge further observed that the essentials of the gift-deed were not satisfied as such proceeded to cancel the gift-deed by maintaining the order passed by the District Judge.
7. After giving deep thought, we are of the view that the appeal merits no consideration and the judgment and decree passed by the High Court does not warrant any interference for the following reasons:--
(1) That execution of gift-deed has not been proved through any evidence. None of the marginal witnesses or scribe of the document was produced to prove the execution of documents.
(2) That no reasons whatsoever were shown as to why the gift-deed was executed in favour of the appellant and pro forma respondents and the wife and a son were deprived of the property. The aforesaid view finds support from a case reported as Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932, referred to by the learned Judge in the High Court. The relevant observations are reproduced:-- ' "Here the respondent is admittedly an impecunious person. She has four children. She has given away the whole of the property which she inherited from her father's property which, considering her position in life, is very valuable to her. A brother with a proper sense of fairness and justice would have accepted a gift in these circumstances at all, but, in any case, he should have asked her to consider the matter fully and to have independent advice before she took the step, for there was no good reason why she should deprive herself, her children and her husband of the benefit of the land."
(3) That the burden of basic issue of execution of the document should have been placed on the shoulders of the defendant-appellant and pro forma respondents who had claimed the valid execution but this fact alone is not sufficient to remand the case when both the parties had adduced evidence, the burden of proof placed on one or the other party looses its importance. In the present case a perusal of the document shows that the respondents have successfully proved their case through evidence. Both the Courts, the learned District Judge and the learned Judge in the High Court have concurrently gave findings against the appellant and pro forma respondents by observing that the predecessor of the respondents did not register a gift-deed in favour of the appellant and pro forma respondents and a fraud was committed by registering the aforesaid document. The findings of facts are not assailable before this Court. Similar proposition was resolved in a case reported as Rashid Ahmad and others v. Sardar Bibi and others 1994 MLD 467 in the following words:-- ' "Onus to prove execution of the gift-deed by Taj Din heavily rested on the donee who claimed to be its beneficiary. Plaintiffs had pleaded perpetration of fraud by him in this behalf. Obviously, they had denied execution of the gift-deed by Taj Din. Therefore, it was for the donee to prove that he had received a valid gift of land from its owner...."
' The proposition also finds support from a case titled Muhammad Ashraf v. Bahadur Khan and others 1989 SCMR 1390 where it was held:-- ' The petitioner did not produce the scribe who has written the said deed. Bahadur respondent is the husband and other respondents are the minor children of Mst. Goharan. It has not been explained why (and how it can be possible that) in the presence of such legal heirs, particularly own children she would have gifted out her entire land to a nephew. Thus, under the circumstances, we are of the view that said gift-deed is not a valid one but fictitious and obtained by fraudulent manner..."
(4) That an important fact came in the evidence that a new national identity card was got issued on which the gift-deed was registered when the said donor was already possessing a card issued from Rawalpindi. It has also come in the evidence that the aforesaid card issued was later on cancelled. It shows that the card was issued for registration of a forged gift-deed. The gift-deed shows that the possession of the suit-land was transferred through the said deed although it is an admitted fact that the suit-land was already in possession of the appellant and pro forma respondents as tenant-at-will.
(5) The evidence was appreciated in accordance with the settled principle and no legal ground worth interference of this Court has been raised.
8. In view of the above, the appeal is found to have no substance in it which is dismissed with costs.
The case-law referred to by the learned counsel for the appellant with its distinct facts is not applicable to the case in hand as such is not discussed.