' TANVIR BASHIR ANSARI, J.---The petitioner filed a suit for possession of a plot of land (described in detail in the plaint) on 9-10-1991. The petitioner claimed her entitlement on the basis of a registered sale-deed dated 16-11-1972 from Muhammad Sharif in whose favour of PTD had been issued on 13- 3-1964. The registered deed described the plot through metes and bounds. It was alleged that defendants/respondents had encroached upon the said plot including a Kotha about 6/7 years prior to the filing of the suit. The suit was contested. It was chiefly averred that the plot in question was orally gifted in favour of the defendant by the above mentioned Muhammad Sharif prior to the sale in favour of the petitioner/plaintiff. It was also contended that oral gift was made for religious purpose and that the defendants had incurred substantial expenditure in converting the plot into a graveyard, mosque, Khanqah etc. The sale-deed in favour of the petitioner was regarded as without lawful authority forged and ineffective upon the rights of the defendant.
2. From the pleadings of the parties, the following issues were framed:-- ISSUES
(1) Whether the suit is barred by different laws?
(2) Whether the suit is not maintainable is its present form?
(3) Whether the suit property is not saleable in view of preliminary Objection No.3 of the written statement?
(4) Whether the sale-deed is bogus, forged and illegal which has been got prepared fraudulently, mischiviously and without proper knowledge of situation and condition of the property? OPD
(5) Whether the plaintiff is estopped by her conduct to file the present suit in view of preliminary Objection No.5 of the written statement? OPD
(6) Whether the suit is malicious, false and fictitious and the defendant is entitled to special costs under section 35-A C.P.C.?
(7) Whether the suit is liable to be dismissed in view of preliminary Objection No.8 of written statement?
(8) Whether the plaintiff is entitled to decree for possession of the property in dispute?
(9) Relief.
3. In support of her contention, the petitioner produced Muhammad Shafi Noorani P.W.1, Muhammad Din Choudhary, Advocate P.W.2, Muhammad Rafiq Registration Clerk P.W.3 and Ata Ullah Nisar, Advocate P.W.4. In documentary evidence power of attorney Exh.P.1 registered sale- deed Dch.P.2 and mutation Exh.P.3 were produced.
4. On the other hand, the defendant/respondent produced Ata Ullah Choudhary D.W. 1 and Zahoor Ahmed D.W.2 Siraj Din D.W.3, Abdul Waheed D.W.4, Qari Rasul Bux D. W .5 , Muhammad Rafiq alias Gogy (defendant) as D.W.6 and Muhammad Mehboob as D.W.7. In documentary evidence the defendants produced Exh.D.1 to Exh.D.9. Muhammad Boota Record-keeper appeared as C.W. 1 while Muhammad Sarwar appeared as C.W.2.
5. The learned trial Court in appreciation of evidence produced by the parties on the record decreed the suit of the petitioner vide judgment and decree dated 15-1-1994. The defendants/respondents filed an appeal. The said appeal was accepted and the case was remanded to the learned trial Court vide order dated 26-9-1995.
6. After remand, the learned trial Court once again decreed the suit of the petitioner vide judgment and decree dated 1-2-1996. It came to the conclusion that suit was competent and within time; that the defendant/respondent has not successfully established the oral gift made in his favour by Muhammad Sharif that there was nothing on the record to detract from the efficacy of the registered sale-deed in favour of the petitioner and that failure of the defendant/respondent to challenge the sale-deed in any legal forum supported the plea of the petitioner/plaintiff regarding her title. The respondents preferred an appeal. The learned appellate Court vide judgment and decree dated 13-11-1996 accepted the same and reversed the decree passed in favour of the petitioner. The learned appellate Court considered the evidence produced by respondents to be sufficient to establish the oral gift in favour of respondent. It was also held the nature of the property was changed by respondent. It was found that the sale-deed in favour of the petitioner was doubtful and also that the suit which was filed by the plaintiff was barred by limitation.
7. The learned counsel for the petitioner has made the following contentions:--
(i) That the suit was not barred under the law of limitation and that the learned appellate Court erred in holding otherwise and non-suiting the petitioner on the ground that the suit was barred by time.
(ii), That the registered sale-deed in favour of the petitioner has been adequately established through the evidence produced by the petitioner. The original respondent/ defendant never sought to challenge the same in an independent suit and only assailed the sale-deed in his written statement and even in this respect has failed to challenge the validity of the sale-deed through any material on the record.
(iii) That there was no evidence of the alleged oral gift.
(iv) That even if the respondent had changed the nature of the suit-land it would not adversely affect the rights under the sale-deed.
8. On the other hand, the learned counsel for the respondent has strongly supported the judgment of the learned appellate Court. He submitted that the sale-deed in favour of the petitioner was allegedly executed on 16-11-1972 and the present suit filed on 9-10-1991 was barred by time particularly when the petitioner has not shown herself to be in possession within 12 years of the filing of the suit. He reiterated the stand of respondents that in fact the suit property was transferred to the respondent through a gift made by Muhammad Sharif and that there was sufficient evidence of the gift on the record. It is further submitted that there was strong evidence produced by respondent that he was in possession of the suit property for the last about 35 years whereupon he has constructed rooms, Dera and Mosque. He further submits that graves also exists thereupon.
9. Arguments have been heard and record perused.
10. The registered sale-deed in favour of the petitioner stands established on the record. It is also not denied that the original owner of the plot in question was one Muhammad Sharif in whose favour PTD had been issued by the Settlement and Rehabilitation Department on 13-3-1964. While the petitioner claims title in the plot in question on the basis of the registered sale-deed, the respondents claims title in the same on the basis of on oral gift made by the said Muhammad Sharif in his favour prior to the execution of the sale-deed.
11. I have gone through the evidence produced by the parties in detail. Besides the production of the registered sale-deed in her favour, the petitioner has also produced P.W.l to P.W.4 to prove the same. Besides this C.W.1 Muhammad Boota Record-keeper Sub-Registrar Office and C.W.2 also supported the claim of the petitioner. Ata Ullah Advocate who appeared as P.W.4 is an attesting witness of the sale-deed. It is futile for the learned counsel for the respondent to contend that the evidence on the record did not substantiate the validity of the sale-deed in favour of the petitioner.
12. To the contrary, despite the fact that respondent produced as many as seven witnesses they have not been able to prove the factum of the oral gift allegedly made by Muhammad Sharif in favour of respondents. The main focus of evidence of witnesses such as D.W. 1 to D.W.7 has been upon the use to which the plot in question was being put. D.W.1, D.W.2, D.W.3, D.W.4 are all witnesses to support the contention that the plot in question is being used for religious purposes. According to these witnesses there are five rooms, a mosque and two graves. They have also stated about the observance of religious ceremonies at the property in question.
13. If the evidence produced by the petitioner is placed in juxta-position with the evidence produced by the respondents, I am satisfied that the sale-deed in favour of the petitioners stands substantially established. On the other hand, the oral gift is merely asserted by the witnesses of the respondent which is not sufficient to establish the oral gift in the absence of any other cogent material on the record. The change of purpose for which the plot in question may be used as suggested by the witnesses of the respondent would not ipso facto detract from the ownership of the petitioner. There is no tangible material on the record to suggest creation of any gift in favour of the respondent and therefore, the change or alteration in nature of the property if any would be unauthorized. The possession of the respondent for howsoever long would not take anything away from the efficacy of the title of the petitioner created through a registered sale-deed.
14. There is substantial force in the submission made by the learned counsel for the petitioner that the suit was not barred by limitation. The registered sale-deed was executed on 16-11-1972, while it was alleged that the respondents had taken possession about 6/7 years prior to the filing of the suit on 9-10-1991. The documentary evidence produced on the record by the respondent such as WAPDA Bills or Newspaper reports are not sufficient to establish the possession of respondents from any period prior to 1984.
15. In this view of the matter, the reasons recorded by the learned appellate Court for accepting the appeal of the respondent are not justifiable. Resultantly the Civil Revision is allowed, the judgment and decree of the appellate Court dated 13-11-1996 is set aside with the result that the decree passed by the trial Court dated 1-2-1996 in favour of petitioner shall stand restored. Parties to bear their own costs.