' This regular second appeal has been directed against the judgment and decree dated 15-6-1967 passed by Additional District Judge, Multan whereby the judgment and decree dated 10-3-1966 passed by Senior Civil Judge, Multan decreeing the suit of the plaintiff/respondent herein had been maintained.
2. The brief resume of the case is that Pir Dost Ali Shah, plaintiff had instituted a suit for declaration to the effect that he is the owner in possession of the suit property the description of which has been narrated in the plaint, entitled to get compensation of the land from the Government of West Pakistan for acquiring his property. He also prayed in the plaint a perpetual injunction against the defendants restraining them from receiving/realizing the amount from the defendants No.6.
Plaintiff averred in the plaint that Sardar Shah, his father, was owner of the disputed land which he gifted to him through a registered gift-deed dated 16-10-1930 and under the gift delivered its possession in his favour and he further stated in the plaint that most of the area of the disputed land was covered under the river bed and whatever area came out it had been cultivated by the plaintiff. The defendants Nos.1 to 4 were sons of Muhammad Hussain Shah, the elder step-brother of the plaintiff. Defendant No.5 was also plaintiff's elder step-brother. The plaintiff claimed that they had no right or title in the suit-land and he came to know that the defendants Nos.1 to 5 have made entries in their favour in the Revenue Record as owners of the suit-land, he denied such entries. The Government of West Pakistan defendant No.6 had acquired the suit property for Sidhnai Barrage Scheme and proposed compensation for the standing crops.
' The plaintiff claimed that only he was entitled for such compensation of the crops on the suit-land but the defendants were trying to realize the compensation from the Government by making entries in their names and about a year prior to the institution of the suit he came to know of the wrong entries incorporated in the Revenue Record which prompted him to file the instant suit. The defendants Nos.1 to 4 admitted the claim of the plaintiff. The defendant No.5 died during the pendency of the suit and his legal heirs were brought on the record as representatives. The defendant No.7 contested the suit who by filing his written statement denied the averments of the plaint raising some objections.
3. From the factual controversies appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:-- 1) Whether the plaintiff was in possession of the land described in the heading of the plaint, when defendant No.6 took proceedings for its acquisition? If not what is its effect?
(2) Whether the suit is not properly valued for purposes of court-fee and jurisdiction?
(3) Whether' the late .Syed Sardar Shah made gift of the land in question in favour of the plaintiff? If so, when?
(4) Whether the gift mentioned,in Issue No.3 was acted upon?
(5) If the plaintiff estopped by his conduct from beginning this suit?
(6) Is the suit barred by limitation?
(7) Whether defendant No.7 or his predecessor-in-interest perfected his title to the land in the plaint through adverse possession of 12 years? If so, what is its effect?
(8) Is the suit collusive? If so what is its effect?
(9) To what relief is the plaintiff entitled?
4. After recording, appreciating the evidence, pro and contra, the trial Court vide, its judgment and decree dated 10-3-1966 decreed the suit. The appeal filed by the defendant Arif Zaman son of Barkhurdar before the Lower Appellate Court also met with failure vide impugned judgment and decree dated 15-6-1967.
5. Nemo appeared for the respondents, therefore, they were proceeded against ex parte. The case was fixed for final arguments.
6. I have heard the arguments of the learned counsel for the appellants who contended that the judgment of the Courts below is result of misreading and non-reading of evidence and not sustainable in law. Further contended that the alleged gift made in favour of plaintiff Pir Dost Ali Shah/respondent No.1 was invalid in the eye of law as for lack of delivery of possession. He relied on case of Ghulam Hassan and others v. Sarfraz Khan and others (PLD 1956 SC (Pak.) 309). Further contended that there are discrepancies and material contradictions in the plaintiff's evidence and plaintiff has failed to establish all the three legal requirements of a valid gift. Further argued that the Courts below erred in law in observing that the suit was filed within limitation. He forcefully stressed that the alleged gift deed has been made in the year 1930 and thereafter in number of Jamabandis/record of rights the name of the legal heirs of the deceased Sardar Shah had been entered in the column of ownership and the appellant was conscious of this fact, therefore, the suit was hopelessly barred by limitation.
7. I have heard the learned counsel for the appellant, perused the record with his kind assistance.
The plaintiff acquired the property through a registered deed of gift wherein it is specifically recited that the delivery of possession has been made and the making of gift by the donor/father of the plaintiff had been accepted by donee.
8. It is settled proposition of law that the litigant to establish a valid gift has to prove three ingredients: (i) declaration by the donor (ii) acceptance of gift by the donee and (iii) delivery of possession under the gift and there is no cavil to this legal aspect that if any of the three ingredients is missing there can be no legal/valid gift.
9. It is also settled proposition of law by the superior Courts that the person who is beneficiary of the deed/transaction is under legal obligation to prove the validity of the gift by producing sufficient and cogent evidence. In this regard in the instant case the learned trial Court has framed Issue No.3 which reads as under:-- "3. Whether the late Syed Sardar Shah made a gift of the land in question in favour of the plaintiff? If so, when?"
' The onus to prove this issue was upon the plaintiff/respondent No.
1. To discharge his onus the plaintiff produced Mutalli P.W.3, Noora P.W.4, Ghazi P.W.5, Dain P.W.6 and Allah Ditta P.W.B. All these plaintiff's witnesses deposed in line with each other stating that they had been cultivating the land in dispute as tenant of Pir Dost Ali Shah at different times and paying rent to him through his Munshi. The plaintiff to corroborate the oral evidence also produced documentary evidence Exh.P.2 to P.12. From the perusal of Jamabandi pertaining to the year 1959- 60, Exh.P.2, it reveals that the entire land was mostly "Ghair Mumkin Darya". Some of it was 'Seelabi' and the rest was "Banjar Qadeem". This fact is further proved by the entries of Khasra Girdawari for the crops from Kharif 1962 to Kharif 1963 and the same was shown as "Ghair Mumkin. Darya" or "Seelabi". The above circumstances proved that most of the area of land in dispute was under the river bed and was not cultivatable and the remaining area which was not under the river bed was cultivated by the tenants who appeared in the Court and deposed in favour of the plaintiff.
12. The document of gift deed Exh.P.1 has not been doubted nor controverted by the defendant/appellants through strong evidence. It is also settled law that presumption of truth is attached to a registered document and contents of such document cannot be controverted through oral evidence. The most important features of the case is that this document is more than 30 years old which has a backing of legal authority and cannot be ignored easily.
13. The two requirements: declaration by donor and acceptance by donee have not been categorically denied by the appellants. The force of the arguments of learned counsel for the appellant was that delivery of possession of the gifted land has not been effected. Where the prdperty as in possession of a tenant, true owner could validly make the gift of that property, provided donor did all that he could do to complete the gift and to enable donee to acquire possession of subject-matter of gift. Delivery of possession in such a situation need not be physical but could be constructive or symbolic. Reliance in this context can be placed to case of Khursheed Islam v. Qamar Jahan (1989 CLC 1467).
14. In the instant case it is an admitted position as per documentary evidence produced by the plaintiff that the property was under the river bed of Seelabi, therefore, delivery of actual/physical possession of the property was not possible and it has been held in case of Muhammad Bashir and 6 others v. Muhammad Yaqub and 11 others (1993 CLC 1084), where possession was not with the donor at the relevant time, but he has made his intention to divest himself of the ownership of the property clearly by doing all that he could do to complete the gift was not open to challenge on the basis of non-delivery of the possession and factum of non-delivery of possession would not invalidate the gift in the circumstances. In case of Shamshad Ali Shah v. Syed Hassan Shah (PLD 1964 SC 143) it has been held by the Hon'ble Judges of the Supreme Court that delivery of possession in case of a gift is necessary and where the donor was admitted in possession he should deliver the possession to donee. It was further observed that as the possession at the time of gift was with tenant it was not necessary to give specific direction to the tenant to hand over the possession for the completion of the gift. In another case Rehm Ali v. Abdul and 3 others (1980 CLC 1110 (SC AJ&K), it was observed that gift cannot be held as invalid for non-delivery of possession; and that the constructive possession as corpus is susceptible accompanied by the act of the donor showing that he parted with the ownership of the property, would suffice for the delivery of the gift and in case of Zahuran and others v. Abdul Salam and others (AIR 1930 Oudh 71) it was also observed that delivery of actual possession is not necessary in all cases to make valid gift if the circumstances so warrant a constructive delivery of possession would suffice. In another case Saida v. Pinnu and another (PLD 1979 SC (AJ&K) 245) that where gifted property had been mortgaged in such it was observed that the delivery of the possession is not necessary for making valid gift and in such case gift cannot be invalid for non-delivery of possession.
15. It is evident from the above citations that the delivery of possession is not condition precedent for the validity of the gift in all cases and the condition is subject to all just exceptions and if the possession, as is in the present case, was not with the donor at jhe relevant time, but he makes his intention, to divest himself in the ownership of the property by doing all that he could do, the validity of the gift is not open to challenge merely on the basis of non-delivery of possession.
16. In the instant case there is sufficient evidence that the donor did all acts for the delivery of the possession to the plaintiff. The tenants who were in possession at different times appeared in the Court and stated that they were the tenants of the plaintiff Pir Dost Ali Shah and had been paying share of "Batai" to him.
17. For what has been stated above, it is established that the plaintiff/respondent No.1 has been successful in establishing the valid registered gift in his favour by his father Syed Sardar Shah.
18. The answer to the arguments of learned counsel for the appellants hat the suit is barred by limitation is that under Article 120 of the Limitation Act the time for filing of a suit for declaration starts when right is denied by the defendant. There can be no right to sue until there is unequivocal threat to infringe their rights by the defendant against whom the suit is instituted. The plaintiff has prayed for declaring himself owner in possession of the property and entitled for receipt of a compensation of his acquired land by the Government of West Pakistan but when the defendant intended to realize the same denying the rights of the plaintiff he filed the suit for declaration on every denial of his right and every denial of right would furnish the plaintiff a fresh cause of action.
Reliance is placed on case Wali and 10 others v. Akbar and 5 others (1995 SCMR 284), Ata Muhammad v. Naseer-ud-Din (PLD 1993 Pesh. 127) and Muhammad Yousaf v. Noor Din and others (1993 MLD 763).
19. As observed in preceding paragraph that the defendant intended to realize the amount of compensation of acquired land he filed the instant suit, therefore, from that date the right to sue accrued to him atid he filed the suit which was within limitation.
20. There is a concurrent findings of the fact against the appellants and both the Courts below have observed that a valid gift has been made in favour of the plaintiff/respondent No.1 and the findings of the Courts below have been challenged by the appellants through this second appeal.
Section 100, C.P.C. Provides as under:--
100. Seconel Appeal: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds:--
(a) the decision being contrary to law or the usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits.
21. From the plain reading of the above provisions of section 100, C.P.C., it would mean that the finding of fact cannot be disturbed in second appeal, if the case is not covered within the above referred provisions of section 100 of C.P.C. Reference can be made to case of Pir Walayat Shah v.
Muhammad Shafi and another (1986 SCMR 1304), the Province of West Pakistan through Deputy Commissioner, Khairpur v. Imam Bakhsh (1970 SCMR 465), Lal Badshah and 5 others v. Sohail Khan (1970 SCMR 565), Abdul Rasool v. Muhammad Nawaz and others (1986 CLC 2261), Sitaran Bibi v.
Sher Muhammad Khan (1985 SCMR 1052). In case of Begum Bibi and 9 others v. Abdul Ghani and 4 others (1980 SCMR 675) it has been observed by the apex Court that the findings of fact recorded by trial Court and District Judge on ownership of a transaction could not be competently set aside by High Court, unless judgment passed by District Judge shown to be contrary to law or some usage having force of law or to have failed to determine some material issue of law or procedure adopted shown to be wrong or defective possibly affecting decision on merits. It was further observed in case of Akbar and others v. Muhammad Shah and 4 others (1982 SCMR 286) that the findings of fact recorded by the District Judge not to be interfered with in the second appeal--- reappraisal of evidence at this stage not possible. Non-interference by the High Court accompanied by finding of fact by Courts below was also followed in case of Sikandar Hayat v.
Master Fazal Karim (PLD 1971 SC 730).
22. For what has been discussed above, the judgment and decree passed by the two Courts below call for no interference and unexceptionable, thus, affirmed. For the foregoing reasons, this regular second appeal being devoid of force is dismissed.