' Muhammad Sadiq, respondent No,1 had filed a suit to get declaration from the Civil Court, with regard to lands, situated in Chak No,227/9R, Tehsil Fortabbas, District Bahawalnagar, giving its description as falling in Khata No,8, Khatooni No,18 (according to Jamabandi for the year 1987- 1988), total land of Khata being 66 Kanals, 14 Marlas, out of it 20/1334 shares, equivalent to 1 Kanal, was claimed. It was asserted that the plaintiff had not gifted away the above-noted land through the registered gift-deed dated 25-10-1992 as shown and followed by Mutation No,325, dated 27-10- 1992, and that this gift-deed along with above indicated mutation be declared as the result of collusion, fraud, forgery and deceit, etc. And, therefore, illegal and inoperative upon the rights of ownership of the plaintiff. He has also prayed for grant of permanent injunction restraining the defendants to proclaim themselves the owner of above disputed land or alienating and changing the nature of land in dispute. The suit was filed on 10-7-1993 against Tahir Pervaiz, in whose favour the above-mentioned gift-deed was executed. He filed written statement contesting the version and assertion of the plaintiff. Issues were framed and parties produced oral as well as documentary evidence in the suit. In the present round of litigation, learned Civil Judge 1st Class, Fortabbas, dismissed the suit of plaintiff on 25-6-1995 but the appeal filed before the District Court and heard by learned Additional District Judge, Chishtian was accepted on 17-1-2001, thus, decreeing the suit of the plaintiff. The defendant-petitioner, Tahir Pervaiz has, therefore, approached this Court against the aforesaid judgment and decree of the learned Appellate Court.
2. Learned counsel appearing on behalf of the petitioner submits that real question in dispute is as to whether the plaintiff Muhammad Sadiq had gifted away the land in dispute to the petitioner or not? To prove this, he has referred to a suit earlier filed by Muhammad Sadiq, plaintiff, bearing No,240/1992, which was afterward withdrawn by Muhammad Sadiq, with permission of the Court to file afresh. Referring to the application filed for withdrawal of the suit, learned counsel has referred to contents of its para. No,2, in which the plaintiff had accepted the execution of the disputed gift- deed but with few conditions, which were allegedly not fulfilled by the defendant (now, the petitioner). This application was brought on the record as Exh.D.1/A in the present suit. He has further referred to another document, which is certified copy of the plaint filed on 7-8-1994 and got exhibited into the evidence by the present petitioner as Exh.D.6. The contents of para.' No,3 have been referred to by the petitioner's learned counsel to prove that in that suit also the plaintiff Muhammad Sadiq had admitted the execution of the gift-deed but had entered into that para. That Muhammad Tahir Pervaiz defendant No, 1/petitioner had purchased one Kanal of land through registered sale-deed dated 25-10-1992 (gift-deed) and had also mentioned the attestation of mutation under that registered sale-deed. After this, the learned counsel has diverted the attention of this Court to the statement of Muhammad Sadiq, which was got recorded as P.W.1 in the instant suit, in which he had admitted both the above-noted documents. Through these references of documents and statement, the learned counsel submits that the execution of the gift-deed has been proved by the above-noted admission and that the plaintiff has not come to the Court with clean hands, as he had taken different stands at various stages and his version in the present suit was not credible. As regards the proof of registered gift-deed, learned counsel has stated that to prove the execution of the gift-deed and its validity, the defendant/petitioner had produced D.W.1 Mian Imam Bakhsh, Sub-Registrar, Fortabbas, who attested and endorsed the gift- deed dated 25-10-1992 (Exh.D.1). Fazal Karim Shah, D.W.2 was produced, who was a deed-writer and had written the aforesaid disputed sale-deed. This witness had also brought the register of petition-writer and had proved this document. D.W.3 Muhammad Saleem, who had issued the stamps to Muhammad Sadiq, was also produced to prove the purchase of the aforesaid stamps of gift-deed. Muhammad Tahir Pervaiz himself had appeared as D.W.4 and had supported his case.
To prove the delivery of possession, Muhammad Aslam Javed, D. W:5 was also produced. Rana Muhammad Aslam, Advocate was produced as D.W.6. He had signed as a marginal witness and was an identifier of the executant and had supported the gift transaction. Zahid Hussain, D.W.7 was produced to prove the delivery of possession under the gift. According to the learned counsel this enormous and voluminous evidence had sufficiently proved the case of the petitioner, therefore, the learned Civil Judge had rightly dismissed the suit of the plaintiff/respondent No,1 Disputing the validity of the judgment of the learned Appellate Court, learned counsel has stated that the learned Appellate Court has failed to consider all the aspects of the case. The learned Appellate Court had been trying to define the gift and explaining the evidentiary value of previous admissions. According to the learned counsel, sanctity is attached to the document, which cannot be easily upset by mere oral assertion of having no cogent reason. He has referred to Mirza Muhammad Sharif and others Mst. Nawab Bibi and others 1993 SCM R 462. According to the learned counsel mere creation of suspicion was not sufficient to declare a registered document to be illegal, etc. He has relied upon Mumtaz and 3 others v. Mian Khan PLD 1973 Lah.
47. Learned counsel has also asserted that the plea of fraud was raised by the plaintiff in his plaint, therefore, the plaintiff had to prove his assertion by production of sound evidence, in which he 'has failed on the record. He has referred to Muhammad Yousuf Ishaque v. Abdul Majid Khan and 5 others 1984 CLC 243.
3. For Muhammad Sadiq, respondent No,1, learned counsel has argued the case with vehemence and has stated that Muhammad Sadiq was not related to the donee in any manner, therefore, there was no reason to make the gift in favour of the petitioner. In registered gift-deed, no specific land and possession was entered and given to the petitioner. No services were proved on the record to have been rendered by the petitioner. In the application referred to above by the learned counsel for the petitioner, the words 'alleged gift-deed" were used, so it was not an admission of the gift-deed. Relying upon Atta Muhammad represented by legal heirs and others v. Matloob Alam Khan 1996 SCM R 601, learned counsel has submitted that previous statements cannot be believed unless its specific portions are put to the party and are accepted. That there was material difference into their evidence, amongst the persons who had appeared to prove the gift-deed. It was further urged by the learned counsel that the defendant-petitioner had illegally and forcibly occupied a piece of land, measuring 1 Kanal during the pendency of the case.
4. I have considered the arguments of the learned counsels and have perused the record.
5. The plaintiff has not denied that he had not filed the earlier suits. The filing of application for withdrawal of the previous suit is admitted and so the filing of suit for grant of permanent injunction. To fulfill the requirement of Article 140 of the Qanun-e-Shahadat Order, 1984, the portions contained in those documents were also put to the plaintiff while he had appeared as his witness. Although he had denied, yet I do not consider that the denial of the respondent was of any use. It was the duty of the plaintiff to produce evidence that the contents of the application as well as the plaint were not written upon his instructions by his learned counsel or those documents had not originated from his acts or conduct. After admitting the execution, prima facie, the contents are admitted true unless proved otherwise by the executant. The application and the above noted suits were part of the judicial record and could not be disbelieved on hyper technicalities. A prudent man cannot considered it to be plausible that the contents of the documents are not written with the consent of the plaintiff-respondent No,1. The previous suits in fact prove that the gift was actually made but the reason of the gift was to get assistance of present petitioner to get more share of lands from the brothers of Muhammad Sadiq (present plaintiff/respondent No,1) for him in the lands. The law is settled on this point that the conditions of a gift cannot remain valid and those conditions evaporate in the air leaving, the gift pure and simple. The condition attached to or with the gift and its non-fulfillment cannot detract from the completion of the gift. The gift itself is perfected, therefore, non-fulfillment of conditions as asserted by the plaintiffs-respondent No,1 cannot be made a ground to cancel the registered gift-deed. The production of witnesses has sufficiently proved the execution and the ingredients of the completion of gift. So, the judgment of the learned Civil Judge, which is based on sound reasons could not be set aside on mere technicalities of having no relationship or no specific land or portion of land having been entered into the gift-deed. It may be clarified here that there is no bar in law in making of the gift of the share of a joint property. In such an event, what the donor has to do for completion of the gift is to divest all those rights of (possession and ownership) as he was possessed into that property. If the donor had no possession of any joint property, it cannot be said in such a case, that delivery of possession having not been made, the gift was incomplete. Once intention to make such gift is discernible from the facts of that case and is proved, in such case, the completion of gift would be presumed.
6. In making of a gift, reasons for it may be various and differ love and affection is no doubt a major active ingredient of a gift but it cannot be held that this is the only ground, which must be found in every case and a gift would be invalid wherein such factor is lacking. Gift can be made by a man to man, feminineness to masculine, a votary to his Diety; Pir or Murshid, in which case the reason for gift may be to please or appease the donee and to get concessions from him. All these are manifestations of passions in the shape of gift, having no monetary gain or consideration in lieu of the gift-.
7. Therefore, merely existence of no blood relationship between the parties would not be sole and sufficient ground to declare a gift invalid which has been proved on the record through sufficient evidence. The intention with or under which a person had made the gift is to be criteria to determine the validity of a gift. After the completion of gift, if the passions, and the feelings, which were the cause of gift were changed, that would not make the gift revocable. So, I hold that the gift has been sufficiently proved by the petitioner-defendant on the record.
8. I had summoned the parties to appear in person, who had appeared before me in the presence of their learned counsels. The record of the suit displays that only share from the Khata was gifted away but the defendant/donee has taken the possession of plot of 1 Kanal at the site, upon which construction has also been made by petitioner as admitted by the plaintiff-respondent No,1 before me. The version of the plaintiff-respondent is that this land, which was an available piece out of lands of the plaintiff was forcibly taken possession of by the petitioner to compensate the plaintiff- respondent No,1, for that purpose, the petitioner j had offered to pay Rs,3,00,000 to the plaintiff- respondent No, 1 . This offer being reasonable, in the present circumstances, when the petitioner- defendant has admitted the raising of huge constructions by spending lacs of rupees at the site, as admitted by the plaintiff-respondent No,1, I consider it a fit case to order the petitioner-defendant to pay Rs,3,00,000 (three hundred thousand rupees) as compensation for taking possession of a plot of his own choice from the lands of the respondent, within one month from the date of announcement of this judgment, or in case of refusal of the petitioner to receive through the receipt, he would deposit the aforesaid amount within two months after the above-noted period in the learned trial Court for the benefit and in favour of plaintiff-respondent No,
1. In case of default to pay or deposit, the plaintiff-respondent No,1 would be at liberty to recover this amount through execution of this order/judgment, treating it to be a decree, through execution petition in the learned trial Court.
9. So, the civil revision is accepted with the above-noted condition.