SARDAR MUHAMMAD ASLAM, J.---The petitioner in this civil revision is defendant in a suit filed by the respondent/plaintiff for declaration in respect of the land fully detailed and described in the head note of the plaint with the averments that the plaintiff was married with defendant's daughter which ended in divorce at the instance of the defendant and her sons. Relations between them were strained. The plaintiff was kept under duress, detained and was made to execute registered gift deed in respect of the suit-land on 28-1-1991. He claimed that the gift deed was liable to be cancelled on account of its execution without his consent and for non-delivery of possession; the suit property was divisible and, thus, the gift could not have been made without its partition. It was stated that Shah Muhammad son of Mian Muhammad had earlier filed a suit on his behalf as next friend, branding him as a person of unsound mind. Hence, he was not bound by the result in the said suit. The defendant entered appearance and filed written statement. Issues were framed.
Evidence was produced. Suit was dismissed on 9-10-1997. Appeal was allowed and the suit was decreed on 3-2-1998 which judgment is being assailed.
2. The learned counsel for the petitioner contends that the plaintiff made a statement of his own accord firstly, at the time of attestation of mutation and secondly before the trial Court which statement was held to have been made by him before this Court as well as before the Honourable Supreme Court of Pakistan (as contained in the judgment of Honourable Supreme Court of Pakistan Exh.D.6).
3. Conversely, the learned counsel for the respondent-plaintiff, in opposition, supported the judgment of the learned Appellate Court and argued that the judgment of the Honourable Supreme Court of Pakistan (Exh.D.6) has no bearing qua his right in the suit-land; gift was bad for non-delivery of physical possession; gift was not proved as required under Article 79 of Qanun-e- Shahadat Order, 1984; and that the gift was obtained per force which has been revoked by him.
4. Heard. Record perused.
5. Muhammad Akram was examined as P.W. He stated that he was informed by the plaintiff that the land in dispute was obtained by way of fraud and under life threats. In cross-examination, he admitted that a case for abduction of Sarwar was registered against Mian Arif and Nawaz including two other persons. Muhammad Hussain and Hafiz Shah Muhammad were also named in the said case. It was false case. He conceded that Muhammad Hussain has filed a suit for specific performance of an agreement alleged to have been made in his favour in respect of the disputed property. He tendered in evidence copy of Khasra Girdawari from Rabee, 1996 to Kharif 1996 Exh.P.1, copy of Record of Rights for the year 1988-89, Exh.P.2, copy of Record of Rights for the year 1992-93 Exh.P.3, copy of Khasra Girdawari from Kharif, 1989 to Rabee, 1994 Exh.P.4, copy of Khasra Girdawari for Kharif, 1994 Exh.P.5, copy of Khasra Girdawari for Rabee, 1995 Exh.P.6, and copy of gift deed Exh.P.7. In rebuttal, Munir Hussain Shah was examined. He claimed to be the attorney of the plaintiff and produced power of attorney Exh.P.8. He stated that the gift was obtained under life threats and duress. This P.W. Is statedly "Peer" and plaintiff is one of his "Aqeedatmand". He was appointed attorney for the first time on 16-7-1997 and is unaware of what happened earlier to this. Sarwar plaintiff disclosed issuance of threats of life to him. P.W.3 is Muhammad Sharif. He is Lamberdar of Deh. He stated that he is receiving land revenue from Sarwar. He stated that Fateh Begum petitioner-defendant is owner in this Khata, in addition to the land given to her in gift. In cross- examination, he admitted that he was witness in a suit instituted by Muhammad Hussain. Mutation has been attested in favour of Mst. Fateh Begum. He admits that the plaintiff was living with the defendant who was his real paternal-aunt. Muhammad Sharif son of Haji Muhammad examined as P.W.3. Another Muhammad Sharif son of Akbar Ali has been examined as P.W.3. This appears to be an inadvertent mistake. He stated that Muhammad Khan P.W. Is the person of ill character. He had stopped him from appearing as witness. Sarwar is gentle natured person. Asghar is P.W.4 he stated that 6/7 years before, he had seen plaintiff in the house of the defendant. He also witnessed the arms lying on cot. In cross-examination, he stated that the said Ghulam Sarwar lived in the house of Fateh Begum even two and half years after he had seen him.
6. Muhammad son of Karam Din appeared as D.W.1. He stated that the property in dispute was transferred by way of gift deed Exh.D.1 to the defendant. He is one of the marginal witness. Sadaq was another witness. He had thumb-marked on the gift deed. It was authored by Ch. Basharat Ahmad, Advocate at the instance of Sarwar and Mst. Fateh Begum plaintiff and defendant respectively. The gift was made by the plaintiff in favour, of the defendant. She had accepted the gift. It was read over. He appeared before the Tehsildar. He stated before the Tehsildar of having transferred the property by way of gift. He stated that Sadaq was Lamberdar of the village. He was cultivating the land of Sarwar as tenant. Ch. Basharat Ahmad, Advocate appeared as D.W.2. He stated that he authored the gift deed at the instance of Ghulam Sarwar donor. It was read over to him, who thumb-marked the same in token of its correctness. Sadaq also signed the same. Ashraf D.W.3 is son of Mst. Fateh Begum, defendant. He is also her attorney. He stated that the gift deed was executed in their favour after 15/16 years of divorce pronounced on his sister by the plaintiff.
Documentary evidence in the form of judgments and decrees Exh.D.3 to Exh.D.6, were produced.
7. Plaintiff's suit against the petitioner in respect of the same suit property challenging the same gift deed dated 28-1-1991, filed through next friend Hafiz Shah Muhammad was decided by the learned trial Court, wherein Ghulam Sarwar made a statement that he of his own accord transferred the disputed property in favour of the defendant. His suit was dismissed on recording of this statement.
Notwithstanding the dismissal of the suit on his own statement an appeal was filed. The plaintiff appeared before the learned Additional District Judge on 17-6-1992 and stated that he had not preferred this appeal, which was dismissed. Another application for review of this order passed in appeal was preferred. It was allowed and case was remanded. This order in review was challenged before this Court. It was allowed and the order of remand was set at naught. The order of dismissal passed by the Appellate Court in appeal remained in the field. The plaintiff challenged order of this Court in C.P.S.L.A. No.117-L of 1994, which was dismissed on 19-6-1995. Paragraph No.5 is relevant and is reproduced for facility of reference:-- "It is difficult to accept the contention of the learned counsel. The learned Single Judge who heard the revision petition examined Ghulam Sarwar and found that he was of perfectly sound mind. The allegation that he was under the influence of Mst. Fateh Begum when he made the statements regarding withdrawal of the suit and appeal before the Civil Judge and the Additional District Judge are without any foundation. It is to be noticed that on both occasions his counsel (two different gentlemen) were present in Court. The learned Single Judge was, therefore, right in setting aside the order of the learned District Judge. Leave is accordingly refused Exh.D.6, the judgment of the Honourable Supreme Court of Pakistan, had clinched the controversy.
The plaintiff himself appeared not only before the trial Court but also before this Court and stated that he was of sound mind. He stated before the trial Court that he transferred the property in favour of the defendant of his own accord without any coercion.
8. The plaint in this suit was presented on 27-1-1994. The civil petition for leave to appeal was decided on 19-6-1995. No mention was made by the learned counsel appearing for Ghulam Sarwar, plaintiff before the Honourable Supreme Court of Pakistan of institution of the present suit.
9. The plaintiff, therefore, cannot turn round later on to claim, that C he is not bound by result of the proceedings taken in the earlier suit. He is estopped by his words and conduct.
10. The contention of the learned counsel for the respondent that the gift is bad by non-delivery of physical possession as well as on the basis of "Musho" is devoid of any force for the reason that Exh.P.3; Register Haqdaran Zamin clearly indicates that the plaintiff was not the sole owner in this land. The defendant was also one of the co-sharers in the suit-land, even before making of gift in her favour. She being co-sharer in possession was not obliged to seek possession of the suit property. A co-sharer in possession of any portion of the suit property is deemed to be in possession of each inch of the property jointly owned by the parties.
11. As far as contention of the learned counsel for the respondent that the provision of Article 79 of Qanun-e-Shahadat Order, 1984 has not been kept in view as the gift deed was not proved through two attesting witnesses are concerned, suffice to say that the author of the gift deed Mr. Muhammad Basharat Ch. Advocate appeared as D.W.2. Muhammad Khan son of Karam Dad appeared as D.W.I. Both stated that Ghulam Sarwar plaintiff thumb-marked it in their presence and it was authored at his instance. Even otherwise, the case of the plaintiff is not that he had not executed the gift deed but that it was secured through coercion, on issuance of threats of life. In that eventuality, the onus lay upon him to prove the above fact. He has elected not to appear in the witness-box in spite of the fact that he was living a healthy life. Inference is to be drawn against him. Had he appeared before the Court he would have been confronted with his statement made before the trial Court. This contention of the learned counsel for the respondent is also without force and, is, thus, rejected.
12. The last contention on respondent's behalf that the gift deed was obtained per force is not substantiated by evidence on record. P.W. And P.W.2 stated that it was plaintiff who told them that the gift was obtained from him by exerting undue pressure. P.W.3 Muhammad Sharif son of Akbar Ali and P.W.3 Muhammad Sharif son of Haji Muhammad stated nothing so far this controversy is concerned. P.W.4's statement of having seen the plaintiff in the house of the defendant 6/7 years before, when arms were lying on the cot, renders no assistance to the plaintiff's case. This contention of the learned counsel, therefore, is not entertainable and is hereby rejected.
13. In view of what has been discussed above, this civil revision is allowed, the impugned judgment and decree passed by the Appellate Court is set aside and that of trial Court is restored.