MUHAMMAD SAIR AU, J.--- Through this second appeal, the appellants seek to question the judgment and decree dated 27.3.1996 of the learned Civil Ju'dge, Jhang decreeing the suit of the respondents and judgment and decree dated 25.6.2001 of the learned District Judge, Jhang dismissing appeal of the appellants thereagainst.
2. The respondents plaintiffs filed a suit for declaration and perpetual injunction claiming to be the owners in possession of the suit land on the basis of an oral gift made by the deceased Kamir i.e. The father of the appellants. The respondent plaintiffs claimed that the deceased Kamir till his death lived with them because of the unaccommodating and immoral behaviour of his children (the appellants) and thus he made the oral gift in their favour in lieu of their services. And that the physical possession of the property was also delivered to them and they continued to be in possession till date. The respondents plaintiffs importantly pleaded that before his death, the deceased Kamir filed a suit for declaration .And perpetual injunction confirming the transfer of the suit property to the respondents through the gift and seeking title of the respondent donees in the suit land.. And that owing to death of Kamir, the appellants as his legal heirs succeeded to the suit and withdrew the same, denying the gift and title of the respondents.
3. On contesting written statement of the appellants to the suit of the respondents, the learned Trial Judge framed the following three issues:- "(1 ) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD.
(2) Whether the Late Kamir gifted the suit property to the plaintiffs and delivered its possession then and there? OPP.
(3) Relief."
Evidence was recorded. The learned Trial Judge decided the above-referred issues Nos. 1 and 2 against the appellants and decreed the suit of the respondents through judgment and decree dated 27.3.1996. Appellants' appeal thereagainst was dismissed by the learned District Judge, Jhang through judgment and decree dated" 25 6.2001. Hence the present second appeal.
4. The learned counsel for the appellants contended that the concurrent impugned judgments and decrees of the learned subordinate Courts suffer from substantial error as the learned Courts below misconstrued the evidence on record. In support of his contention, the learned counsel for the appellants read out the deposition of Mr. Muhammad lqbal Khan i.e. An Advocate (PW.4) to contend that though the suit was filed by Kamir deceased to establish the title of the respondent donees on the basis of his oral gift to them but identity of the respondent donees could not be proved through the evidence of PW.4. And that the witnesses produced by the respondents were unreliable and interested witnesses. And also that PW.5 referred to some written document of gift from the deceased Kamir but the same was withheld and not produced.
The learned counsel for the respondents supported the impugned judgments and decrees. 5.
Heard. Record examined.
6. The learned counsel for the appellants, on Court query, gave up the plea of incapacity of the deceased Kamir to make the gift or that the same had been made during 'Marz-ul-Mout'. The learned counsel tried to structure his case mainly on the basis of the purported unreliable and contradictory depositions of PW-4 and PW-5. I am afraid, this Court in exercise of its appellate powers under Section 100 of the Civil Procedure Code cannot re-evaluate the evidence particularly when the learned subordinate Courts through due and proper appreciation thereof recorded their concurrent findings of fast.
7. The learned counsel for the appellants was unable to show that the impugned judgments and decrees were contrary to the law or usage or the learned Courts below failed to determine some material issue or committed some substantial error or defect in following the procedure provided by the Civil Procedure Code or any other law. Contrary to the assertions of the learned counsel for the appellants, the learned subordinate Courts particularly the learned first Appellate Court through a well-reasoned and profound judgment concluded that the deceased Kamir had made the oral gift in favour of the respondents plaintiffs. And that the appellants failed to produce any evidence fatal to the making and completion of the gift by deceased Kamir in favour of the respondents.
8. In the absence of any legal or substantial error or breach of the law by the learned Courts below, this second appeal cannot succeed under the provisions of Sections 100 and 101 of the Civil Procedure Code: The impugned judgements and decrees being based upon evidence and judicial consideration of the same, are upheld. This appeal is dismissed with no order as to the costs.
Regular Second .