' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment dated 7-8- 2002 passed by learned Single Bench of the Lahore High Court, Lahore, whereby revision petition preferred on behalf of petitioner has been dismissed and judgment/decree dated 4-11-1998 passed by learned Additional District Judge, has been kept intact.
2. Precisely stated the facts of the case are that "a suit for declaration and cancellation of gift deed dated 22-3-1982 (registered on 1-4-1982) was filed by Mst. Bano Begum, respondent on 19-10-1993.
The subject-matter of the suit is a house bearing Property No,95-C, Gumti Bazar, Lahore. This property was owned by Mst. Saira Bibi deceased mother of the original parties in the suit, who passed away on 13-7-1982. She alienated a portion of the house in favor of the respondent/plaintiff on 20-12-1978 through a sale-deed for an ostensible price of Rs,4,000. Thereafter, Mst. Saira Bibi allegedly executed a gift deed in favor of Muhammad Boota, petitioner on 22-3-1982 which was registered on 1-4-1982. Muhammad Boota, petitioner also passed away on 5-6-2000 and his legal heirs were allowed to be brought on the record vide order, dated 26-2-2001. The gift deed bears thumb-mark of Mst. Saira Bibi and Muhammad Boota deceased petitioner. The Excise and Taxation Officer's record since 1985 onwards shows the petitioner's name as owner of the disputed portion of the house". The petitioner resisted the suit by raising various legal and factual objections. The learned trial Court after framing of issues and recording the evidence pro and contra dismissed the suit by means of judgment dated 4-12-1994. Being aggrieved an appeal was preferred by the respondent which was accepted and case was remanded and finally the suit was decreed vide judgment/decree dated 4-11-1998. The petitioner filed the revision petition which was dismissed vide judgment impugned, hence this petition.
3. Mr. S.M. Masud, learned Advocate Supreme Court on behalf of petitioner vehemently contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the High Court which resulted in serious miscarriage of justice. It is argued that the evidence which has come on record has not been read properly and thus, it is a case of misreading and non-reading of record. It is contended that the impugned judgment is based on conjectural presumptions having no nexus whatsoever with.The record and the conclusion arrived at by the learned High Court that the true intention of Muhammad Boota, predecessor-in-interest of the petitioner, who obtained the thumb-marked of respondent and her mother namely Mst.
Saira Bibi through misrepresentation for obtaining some loan for the treatment of her mother, is baseless. It is urged emphatically that the learned High Court has ignored the conduct of the parties specially the fact that the mother had given a valuable chunk of the property to her daughter and the remaining property was given to her son by way of gift which aspect of the matter has been substantiated by leading cogent and concrete evidence but ignored without any justification or rhyme or reason. According to learned Advocate Supreme Court the mother had distributed the property between her son and daughter equitably and justly hardly warranting any interference from any quarter. It is contended that the learned High Court has failed to give his own findings in view of the findings at variance derived by the Courts below which is in violation of the legal principles as enunciated by this Court in various cases.
4. Malik Waqar Saleem, learned Advocate Supreme Court for the caveator has supported the judgment impugned being free from any illegality or infirmity. The prime contention of the learned counsel for the caveator is that the factum of gift could not be proved by producing forthright and worthy of credence evidence. It is also pointed out that the suit was time-barred which should have been dismissed on its inception.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case. We have minutely perused the judgment dated 4-12-1994 passed by the learned Civil Judge, judgment, dated 4-11-1998 passed by the leaned Additional District Judge as well as judgment impugned. We have also scanned the entire evidence with the eminent assistance of learned counsel for the parties.
6. After having gone through the entire record we are of the considered view that the controversy has been dilated upon and decided in a comprehensive manner vide judgment impugned and the prime contention of learned Advocate Supreme Court appears to be fallacious that it is a case of non-reading or misreading of evidence because the learned Judge in Chambers has put in the maximum possible labour with diligent application of mind to unveil the reality after having gone through the entire record and taken into consideration all the contentions agitated before him. It is an admitted feature of the case that the suit was instituted by plaintiff on 19-10-1993 and written statement was filed by Muhammad Boota on 1-12-1993 but the photocopy of the gift deed was placed on record on 16-1-1994 whereas the attested copy of the gift deed (Exh.D.1) was filed on 20- 12-1992. In these circumstances the plaintiff amended the plaint and filed in Court on 10-4-1994. As transpired from scrutiny of record that till 19-10-1993 the factum of gift was not in the knowledge of plaintiff disclosure whereof was made at first instance on 16-1-1994 when a photocopy of gift deed was placed on record. There is no denying the fact that on first occasion in the written statement it was mentioned that the property in dispute was given by Mst. Saira Bibi by way of gift on 22-3-1982 to the petitioner which was got registered on 1-4-1982. In such view of the matter the time shall be reckoned from the date of knowledge and therefore, the suit was never time-barred.
7. In our considered opinion the factum of gift could not be proved on the basis of cogent and concrete evidence. The case of petitioner is that gift deed was executed in his favor by Mst. Saira Bibi on 22-3-1982, got registered on 1-4-1982 but was not made known to anybody which smacks of mala fides till the institution of suit by the respondent on 19-10-1993 and pursuant whereof the attested copy of gift deed (Exh.D.1) was filed on 20-12-1994. In this scenario amended plaint was filed by the respondent. As mentioned hereinabove the time shall reckon from the date of knowledge and thus, the suit was not timebarred in view of the provisions as contained in Article 144 of the Limitation Act, 1908. The petitioner in fact wants to deprive his real sister from the legacy of their parents on the basis of alleged gift deed executed in his favor by Mst. Saira Bibi, their real mother, who by no stretch of imagination could deprive her real daughter from the share due without any justifiable reasons which are badly lacking in this case which otherwise does not appeal to logic and reason. The gift deed was admittedly executed by an ailing and 80/85 years old woman who had suffered an attack of paralysis and lost her memory, (attention is invited to the statement of Mst. Anwar Bibi) and therefore, it should have been substantiated by worthy of credence evidence which could not be done. The petitioner could not show as to when the offer made by the donor and when it was accepted. The authenticity of the gift deed (Exh.D.1) is not above board for the reason that it was executed in the presence of Local Commissioner who was never produced by whom it (Exh.D.1) could have been proved very conveniently that gift deed (Exh.D.1) was not only executed but its contents were also read over to Mst. Saira Bibi who was admittedly an illiterate lady. The contents of the gift deed (Exh.D.1) were never proved and merely thumb-impressions would not be sufficient to prove the contents of document which was obtained to secure loan from the Bank. The scribe of the gift deed (Exh.D.1) was also not produced and thus, the best evidence to substantiate the factum of gift was withheld for the reasons best known to the petitioner. The presumption, however, would be had they been produced they would have not supported the claim of petitioner. The genuineness and authenticity of the gift deed (Exh.D.1) is doubtful because a notable difference was noticed in the thumb-impressions of Mst. Saira Bibi got affixed on four different places.
8. On the basis of purchase of small piece of land measuring 35 x 13 sq. Ft. Cannot deprive Mst.
Bano Begum from her legal share in the inheritance of her mother and the said purchase would have no bearing on the merit of the case in spite of the fact that a mention had been made about it in the gift deed (Exh.D.1). The evidence led by the petitioner has been examined vigilantly by the learned Single Judge in Chambers with the following conclusion which being unexceptionable hardly warrants any interference:- ' It is true that Hibanama was signed by D.W.1 Abdul Ghafoor, and D.W.2 Zahoor Ahmed but their evidence does not inspire confidence regarding execution of the alleged gift deed. D.W.1 admitted that Mst. Saira Bibi was 80 years old. He stated that she had executed Hibanama in favor of her only son, i,e, the petitioner/defendant. He stated that since Hibanama was made by the mother, she was aware of its details. He did not say that the Local Commissioner had read out and explained the Hibanama to Mst. Saira Bibi. He expressed ignorance about the fact whether the petitioner/defendant had obtained the thumb-impression of Mst. Saira Bibi and Mst. Bano Bibi on the pretext of getting some loan from the Bank. D.W.2 Zahoor Ahmed also stated that Mst. Saira Bibi was 80/85 years old. He stated that the Local Commissioner had explained the matter at the time of obtaining thumb-impressions of Mst. Saira Bibi whereupon she stated that she had made a gift in favor of the petitioner of her own free-will. On this point he is not supported by D.W.1. D.W.3 Muhammad Boota stated that his mother was 80/85 years old and had gifted the house in her life- time and that her thumb-impressions were obtained in presence of the witnesses. He admitted that her mother had not gifted a part of her property in favor of the plaintiff/respondent. Therefore, the writing made at the end of the gift deed that Mst. Bano Bibi had received her share in the property of her mother, is obviously a misleading one. The Appellate Court has rightly held (though for different reasons) that the execution of the document Exh.D.1 was not proved. In view of the said affirmative findings, the Appellate Court has rightly reversed the findings of the trial Court on Issues Nos.l, 1-A, 2, 2-A and 3 decided the same in favor of the plaintiff/respondent."
9. In the light of what has been stated above we are of the considered view that the validity of the gift deed could be proved. The conclusion as arrived at by the learned Single Judge in Chambers being eminently correct and just hardly warrants any interference. The petition being meritless is dismissed and leave declined.