This civil revision assails judgments and decrees dated 26.7.2001 and 26.6.2003 passed by the learned Civil Judge and learned Additional District Judge, Pasrur, District Sialkot, concurrently deciding the lis against the petitioner.
2. Precisely, relevant facts are that the petitioner filed a suit for possession through pre-emption against Mutation No, 517 dated 28.1.2000 claiming that it was sold for an amount of Rs, 75,000/- but instead the sale price was shown as Rs, 1,00,000/- just to protect transaction from preemptory rights of the petitioner and under the same fear, the transaction was falsely ;frown as gift instead of sale. The petitioner claimed his superior pre-emptive right being "Shafi Sharik" and pleaded in his plaint that on gaining knowledge of the sale on 3.2.2000 at 8.00 a.m. from one Ghulam Rasool, he immediately exclaimed his intention of filing pre-emption suit as he had superior right qua the respondent. He further asserted that by sending a notice attested by two truthful witnesses under a registered cover acknowledgement due dated 10.2.2000, he fulfilled the requirements of "talbi- Ishhad as required by Section 13 of the Punjab Pre-emption Act, 1991.
3. The respondent being defendant in the suit, contested it, denying the fact of ale in his favour and claimed it to be a gift by his paternal uncle besides denying performance of talabs by the petitioner, by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful dismissed the suit of the petitioner vide his judgment and decree dated 26.7.2001.
4. The petitioner aggrieved of the decision of the trial Court dated 26.7.2001 filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed vide judgment and decree dated 21.6.2003, Thereafter he filed instant revision petition and the respondent in response to notice by this Court, is represented through his counsel.
5. Learned counsel for the petitioner submits that transaction in favour of the respondent was a sale as it did not had all the ingredients of a gift. He further contended that the transaction cannot be accepted as a gift because this was the only land of the donor which could not have been parted by him through a gift, as no reason for making has been mentioned in the mutation in question. He further elaborates his arguments by saying that the donor is real brother of the petitioner/pre-emptor and in preference to the petitioner he, opted to gift out his land in favour of the nephew, obviously for sale consideration because the donee is a better well of, than the donor.
According to his submissions, possession under the gift was not transferred which is claimed to be with the petitioner as a co-sharer. He further submits that gift as a transaction was to be proved because both the donor and donee live apart, one of them reside at Lahore and the other at Sialkot but no evidence showing any kind of deeper association among them, was produced on the file.
He further urged that transaction in question is sale and the petitioner having performed all the requirements of Section' 13 of the Punjab Pre-emption Act, 1991; his suit could not have been dismissed by the two Courts below. Learned counsel for the petitioner also submitted that the petitioner has moved an application under Order XLI, Rule 27 C.P.C. seeking permission to produce by way of additional evidence copy of khasra girdawari of the land in question for the period w.e,f.
Kharif 1999 to Rabi 2000 to show that possession of the land was not delivered to the respondent under the, gift.
6. Learned counsel appearing on behalf of the respondent denying assertions of the petitioner, supported concurrent judgments and decree of the two Courts below and besides opposing strenuously the production of Khasra girdawari at revisional stage urged that donor himself appeared as DW.1 and materially supported the gift who was subjected to cross-examined by the petitioner but nothing material came out of it. According to him, DW-1 reaffirmed delivery of possession to the petitioner under the gift. He further contended that DW-2, respondent himself, stated that he is in possession of the land in dispute though he is not co-sharer which shows that donor delivered possession of the land subject of gift. Learned counsel appearing on behalf of the respondent also urged that the petitioner did not perform talabs as required by law.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. DW-I, Muhammad Bashir, the donor denied in his cross-examination that he received any money for transfer of land in favour of his nephew which he gave to the respondent in the name of Almighty Allah. This witness was not put even a single suggestion that he did not deliver possession of the land under the gift whereas he replying to a question of the petitioner himself said that land under gift was already under the possession of the respondent. Similarly, the petitioner himself in cross-examination to DW-2 affirmed the transfer of possession to the respondent since 1990. The petitioner in order to succeed in his suit for possession through pre-emption was required to show that transaction in question is not gift and is a sale but no such evidence was produced to rebut impact of the statement of DW-1, the donor.
To my mind, even if all the six objections raised by the learned counsel for the petitioner regarding validity of the gift, are accepted those may go to negate the gift but do not go to prove that the transaction is that of sale. There is no bar in law for gifting the only land of an owner to any body beloved to him on earth. It is also not a requirement of a valid gift that for making it, some reason should be assigned by the donor. DW-1 while appearing in the witnesses box said in clear words that the gifted his land in the name of Allah and it was enough to negate the assertions of the petitioner that no reason has been mentioned in the mutation in question for making of gift by the donor. Similarly, contention that donee is monetarily well of, as compared to the donor as thus a presumption be drawn that gift is in fact a sale, has no relevance, viewing relationship between them. To my mind, two close relatives living apart to each other, create more strong incentive for the donor to gift his property in favour of his beloved living away from him. The real per-requisites of a valid gift, as enunciated by the Hon'ble Supreme Court in the case of Alif Khan Versus Mst.
Mumtaz Begum and another (1998 SCM R 2124) are not only fulfilled in , - the case in hand but are also proved out of the statements of DW-1, and DW-2 and there is no rebuttal of their statements, on the file. Possession of the land in question though has been proved to have been transferred to the respondent, as stated by both the above-referred witnesses of the respondent, yet the petitioner's assertions that he is in possession of the land as a co-sharer and thus, possession could not or did not change hands, negatively reflected on the gift, has no legs to stand because on the one hand, possession of the property is to be delivered to the donee, as the property admits it. If the land was in possession of the petitioner, as per assertions of DW-1 donor, of having transferred the possession, is enough adornment, whereas on the other hand uncross-examined statements of both DW-1 and DW-2, on this point, are enough to prove stance of the respondent.
For these reasons, I am fully convinced that there is no necessity' of any further evidence in support of the fact that possession under the gift was transferred or not. I have examined copy of Khasra girdawari appended by the petitioner with his application under Order XLI Rule 27 C.P.C. which relates to the period w.e.f 9.10.1999 to 10.3.2000, the entire land is not in possession of the petitioner whereas he is shown in possession of only two khasra numbers out of 16 of the joint khata. Gift is dated 28.1.2000 and change of possession thereunder, must have been reflected in corp kharif 2000 but the khasra girdawari sought to be produced in additional evidence, does not contained entry of this crop. Be that as it may, besides the reasons noted above, this document was available pending trial of the suit before the trial Court and during the pendency of the first appeal, no attempt was made by the petitioner to produce this document, which is not needed for ajust decision of the case and being relating to crops of the irrelevant period. I dismiss this application (C.M. No, 1-C/2003).
8. It is evident from the above discussion that transaction in question-is not sale but is a gift where against the petitioner cannot maintain a suit, like the one in hand and in view of this, I do not fell necessity of examining concurrent findings of facts returned by the two Courts below that petitioner, as well did not perform talabs, according to law. Both the Courts below have 'returned findings which are absolutely in consonance with the evidence on the file. No part of evidence has been misread/non-read and no illegality or irregularity has been committed by them, in absence of which, no interference is permissible in revisional jurisdiction under law.
This revision petition has no merit in it and is accordingly dismissed, with no Ii order as to costs.