SYED SHABBAR RAZA RIZVI, J.---The petitioner filed his nomination papers for contesting the Local Government Elections for the seat of Member General Councilor for U.C. No.50, Kot Lakhana, District Jhang. The learned Returning Officer accepted his nomination papers as no objection was filed.
2. The respondent No.3 filed appeal before the District Returning Officer on the ground that the petitioner was not 25 years old. The objection was accepted on 2-8-2005 and the nomination papers of the petitioner were rejected.
3. The learned counsel submits that according to voter list, his age was 25 years and the old Identity Card as well as Passport show the date of birth which fulfill the requirements of 25 years.
4. On the other hand, the learned counsel for respondent No.3 submits that in the Identity Card issued recently by NADRA, petitioner's date of birth is 1-1-1981 and in that way he is less than 25 years. He also submits that his record of Primary School shows that his date of birth is 1-1-1981 consistent with date of birth shown in his latest Identity Card. He also points out that petitioner relies upon the electoral roll which at Sr. Nos.217 and 218 whereas the sale made in favour of the respondent No.1 is only to the extent of 5 Marlas and 5 Sarsahies, though from the same Khata but it is not specifically mentioned in the sale-deed that the same land has been sold in favour of the said respondent, which has been orally gifted to the petitioner. Therefore, the respondent No.1, even on account of the sale-deed, could not competently claim the exclusive ownership of the specified parcel of land, which is the subject-matter of the suit and seek the possession from the petitioner, rather should have gone for the partition of the joint Khata. Lastly, it is submitted that the general power of attorney through which, the sale has been made in favour of the respondent No.1, by Dewan Maudood Masood, has not been produced at any stage of the proceedings.
4. Heard. Undoubtedly, the immovable property, can be gifted through oral mode, but for such a transaction, very strict and positive evidence is needed; the donee who is the beneficiary of the gift, has to prove in unequivocal and specific terms the date, day and the time; when the gift was made, the consideration of the gift and also the persons in whose presence, it was so made.
Unfortunately, in the instant case, the above essential ingredients are conspicuously missing. At the best, the petitioner may have proved a case of being A licensee, but not in the nature of the gift; the acknowledgement allegedly executed by Dewan Maudood Masood dated 3-8-1990, when specifically put to his attorney, who appeared in the witness box, has denied the signature of Dewan Qutab-ud-Din, on this document, therefore, it was not received in the evidence and was only marked; however, no effort ever has been made by the petitioner to prove the document, as required under the law, resultantly, the petitioner cannot take any benefit of the so k called acknowledgment.
5. As regards the argument about the superstructure having been raised by the petitioner's side and they continuing in possession thereof, suffice it to say that as mentioned earlier, such structure may have been constructed with the permission of the owner of the property in the nature of licensee and the petitioner remains to be holding the property in that capacity but it may be reiterated that as the gift has not been proved, resultantly, the circumstances about construction, occupation and the installation of the amenities cannot be considered as proof of the petitioner's ownership. I have considered the evidence brought on the record by the parties and the impugned judgment, but find no amiss in reading thereof, so as to interfere in the concurrent finding.
6. For the argument that the general power of attorney of Dewan Maudood Masood has not been produced, suffice it to say that this document itself has not been challenged by the petitioner in any of the proceedings. The petitioner, if felt that Dewan Maudood Masood has not executed the power of attorney or has not appointed Syed Shahid Ali Shah, should have raised the plea, which from the pleadings of the parties is not an issue between them.
In the light of above, I do not find any reason to interfere in the concurrent finding as mentioned above, therefore, these petitions have no merits and the same are hereby dismissed. However, without prejudice to the petitioner's right to challenge the matter before the higher forum, on the request of learned counsel for the petitioner, she/they are permitted to remove the superstructure raised on the suit property, within two months and till then no execution proceedings shall be carried against her/them.