' MAULVI ANWARUL HAQ, J.---This judgment shall decide Civil Revision No,3347 of 1994 and Civil Revision No,3348 of 1994 as both the Civil Revisions proceed against the consolidated judgment and decree of the learned Additional District Judge.
2. On 17-11-1985 respondent No,1 filed a suit against the petitioner, respondent No,2 and respondent No,3. In the plaint it was stated that the suit-land mentioned in para.1 of the plaint was owned by respondent No,2, the father of the petitioner and respondent No,3; that respondent No,2 had gifted away the said land in favour of respondent No,1 vide a document dated 11-12-1984, which gift was accepted by him while possession was already with respondent No,1; that 16/17 days ago respondent No,1 came to know that respondent No,3 is trying to sell the land whereupon he filed a suit on 2-11-1985 against respondents Nos.2 and 3 for a permanent injunction but on the same date respondents Nos.2 and 3 sold the land in favour of the petitioner. The suit was withdrawn. With these averments a declaration was sought that respondent No,1 is the owner in possession of the suit-land and the registered sale-deed dated 2-11-1985 in favour of the petitioner is illegal and void.
In the same breath it was prayed that a decree for specific performance of the said document be passed in the alternative. Respondent No,2 conceded the suit of his son vide written statement dated 8-2-1986. The brother of respondent No,1 i.e, respondent No,3 stated in the written statement that since his father had gifted away the property to respondent No,1, he by practicising fraud and misrepresentation obtained a power of attorney from his father and sold away the land to the petitioner but the consideration of Rs,1,40,000 was not paid to him.
3. The petitioner in his written statement complained that the suit has been filed in collusion with each other by the father and his two sons. He denied that the land was ever gifted away by respondent No,2 to respondent No,l. He asserted that the land has been validly purchased by him for consideration. In the first instance the following issues were framed by the learned trial Court:--
(1) Whether the plaintiff is entitled to the decree prayed for? OPP.
(2) Whether the registered sale-deed dated 2-11-1985 in favour of the defendant No,3 is illegal against fact and inoperative upon the plaintiff's rights? OPP.
(3) Whether the suit is not maintainable in the present form if so its effect? OPD-3.
(4) Whether the suit is vexatious and frivolous if so whether defendant No,3 is entitled to special costs under section 35-A, C.P.C.? OPD.
(5) Whether the plaintiff's suit is collusive with defendants Nos.1 and 2? If so its effect? OPD-3.
(6) Whether the plaintiff did no thumb-mark the plaint and the Vakalatnama if so its effect? OPD-3.
(7) Whether the description of the suit-land is incorrect if so what would be the correct description and its effect? OPD-3.
(8) Whether the suit has been incorrectly assessed if so what is the correct valuation? OPD3/ Parites.
(9) Whether the plaintiff has got no locus standi to bring the present suit? OPD.
(10) Relief.
' Evidence of the parties was recorded. The suit was declared vide judgment and decree dated 12- 3-1988. The petitioner filed a first appeal which was allowed by a learned Additional District Judge vide order dated 27-3-1991. An additional issue was framed in the following terms:-- "Whether Rahmat Ali defendant made a valid gift of land in suit in favour of the plaintiff on 11-12- 1984 and thus he became its owner? OPP". ' and the case was remanded back for a fresh decision. After remand further evidence was recorded and the learned trial Court dismissed the suit vide judgment and decree dated 27-10- 1991. Respondent No,1, on the one hand and respondent No,3 on the other filed first appeals against the said judgment and decree. Both the appeals were heard by a learned Additional District Judge, Daska who allowed the same vide consolidated judgment and decree dated 5-6-1994.
4. Ch. Riasat Ali, learned counsel for the petitioner contends that the evidence on record has been misread by the learned Additional District Judge while passing the impugned judgment and decree. According to the learned counsel the gift alleged by respondent No,1 had not been proved at all. Ch. Muhammad Hussain Naqshbandi, learned counsel for respondent No,1, on the other hand, supports the impugned judgment and decree.
5. I have gone through the copies of the records appended with the Civil Revision, with the assistance of the learned counsel for the parties. I have already referred to the pleadings of the parties above. The case of the plaintiff/respondent was that his father had gifted away the land to him by means of a document dated 11-12-1984 and as such the sale in favour of respondent No,1 by means of registered sale-deed dated 14-10-1985 is void. The matter was earlier remanded by the learned Additional District Judge on 27-3-1991 after framing an issue calling upon respondent No,1 to prove the said gift. The document dated 11-12-1984 is on record as Exh.P.1. It is scribed by Noor Muhammad on a plain paper. It purports to bear the thumb-impressions of Rehmat Ali and respondent No,1 and is witnessed by Muhammad Yousaf, Akbar Ali and Atta Muhammad. The said Muhammad Yousaf appeared as P.W.1 on 17-9-1986. In his cross-examination he states that a stamp of the value of Rs,5 was purchased by Rahmat Ali, respondent No,2 for Exh.P.1 and that the stamp vendor obtained a thumb-impressions of Rahmat Ali and that the document was written on the said stamp paper in the Courts at Daska on the same day; that the scribe Noor Muhammad obtained the signatures of the parties and witnesses in his register and noted the number of register in Exh.P.1. Further states that apart from the said witness, Akbar Ali and Atta Muhammad a Lambardar had also witnessed the document. A bare reading of the statement of this witness would show that Exh.P.1 is not the document regarding which he is making deposition. I have already stated above that the document is on a plain paper. No register No, is mentioned in the document and there is no attestation by any Lambardar on this document. Muhammad Hussain, respondent No,1 appeared as P.W.2 on 24-2-1988. Now he proceeded to state in his cross- examination that the gift made in his favour through Exh.P.1 was registered and it was so registered three years ago. There is no such registered document on record. Atta Muhammad has appeared as P.W.4. He has stated that all the said persons had come to the Courts where lawyers were sitting.
He states that it was Muhammad Hussain, respondent No,1 who purchased the paper from Noor Hussain who also scribed the document. The witness expressed ignorance as to whether Noor Hussain had also signed the document. Rehmat Ali, respondent No,1 appeared as P.W.3. He states that he got the document Exh.P.1 scribed and it bears his thumb-impression. In his cross- examination he states that he has two sons; that Muhammad Hussain, respondent No,1 resides with him while the other resides in Khiali; that he has given up cultivating the land 8/10 years ago and ever since Muhammad Hussain cultivates the land and he lives with him; that the gift was made in the village and he got it scribed in the Courts; that Noor Muhammad Munshi had written the document; that a stamp was not purchased and a plain paper was used for the writing. The witness then states that he had dictated the document and that he had told the scribe that he has gifted away 9-1/2 Kanals of land to his sons. He denied that he had dictated regarding registration of the document or that the donee was entitled to get the document registered through Court. He admitted that the lawyer he had engaged in this suit was paid by Muhammad Hussain, respondent No,
1. He later states that he had told the Patwari that he has gifted the land and the Patwari had written down the report then he called upon the Patwari to produce him before the Tehsildar who asked him as to whether he has made a gift and he answered in affirmative. He denied that after selling the land to the petitioner he and his sons have got the document fabricated.
6. A perusal of the statement of Rehmat Ali in juxtaposition to the contents of Exh.P.1 clearly reveal that this was not the document which the witness dictated or was written as alleged by him.
7. Now the learned Additional District Judge has dealt with the said all important issues in the suit in paras.13, 14 and 15 of his judgment. He has very correctly stated in para.13 that in case Exh.P.1 is found to be a genuine gift deed, the petitioners will be out of the Court. In para.14 he stated that the donee i.e, respondent No,1 and the donor i.e, respondent No,2 as also the other brother i.e, respondent No,3 have admitted the factum of gift. He has not at all cared to read the document itself and the statements made by the witnesses including the said so-called donor and the donee.
He then abruptly states that possession of the respondent is admitted. He has not cared to read the statement of respondent, his father and the Register Khasra Girdawari Exh.P.4 again produced by respondent No,1 himself. Had he cared to read the document he would have found that respondent No, as he stated himself and as his father stated is cultivating the land long before 11- 12-1984. Nothing, therefore, turns on the said question of possession.
8. Having thus examined the evidence on record and the impugned judgment of the learned Additional District Judge, I do find that this is a case of complete failure on the part of the learned Additional District Judge to read the evidence on record while reversing the judgment and decree of the learned trial Court. There is no evidence of a valid gift having been made by respondent No,2 in favour of respondent No,1 in the manner alleged in the plaint and which was the burden of the said additional issue. This being so, respondent No,1 had no locus standi whatsoever to challenge the sale made by his father in favour of the petitioner.
9. This Civil Revision accordingly is allowed. The judgment and decree dated 5-6-1994 of learned Additional District Judge, Daska is set aside while the one passed by the learned trial Court dismissing the suit of respondent No,1 on 27-10-1991 is restored with costs throughout.