1. ' AZIZULLAH M. MEMON, J.---Both the above appeals have been filed by appellant, Syed Amjad Ali, against the consolidated judgment dated 28-11-2005 passed by the learned 1st Additional District Judge, (Central) Karachi in Civil Appeal No,108 of 2005 and Civil Appeal No,109 of 2005 whereby both the appeals stand dismissed and the judgment and decree passed by learned VIth Senior Civil Judge, Karachi Central, in Civil Suit No,312 of 2004 and Civil Suit No,313 of 2004 stand upheld.
2. ' The earlier numbers mentioned to both the suits separately were Civil Suit No,369 of 2002 and Civil Suit No,1401 of 2001, which were filed in this Court under the original civil jurisdiction and were then made over to the learned District Court of the competent jurisdiction in pursuance of the amendment of the relevant provisions 'of law regarding the enhancement of the pecuniary jurisdiction of the District Courts.
3. ' The Plaintiffs, Mst. Kaniz Fatima and Miss Anis Fatima of the Civil Suit No,369 of 2002 made the following prayers:--
(a) To direct to the defendant or anybody in possession of the suit property to give to and had over the vacant and peaceful possession of the same along with two suitcases and other articles of the, plaintiff No,1 and her father to the plaintiffs so as to put the plaintiffs into vacant peaceful possession thereof.
(b) To grant injunction against the defendant No,1 restraining him permanently to enter into Ground Floor of House No,R-18, Block 15, F.B. Area, Karachi, and causing mental and physical torture to the plaintiffs and their parents by verbal or physical abuse.
(c) To direct to the defendant No,2 to rescue the plaintiffs and their old age parents against the maltreatment and high handedness of the defendant No,1, as and when situation arises.
(d) Granting mesne profits for illegally using the premises from the month of January, 1998 at Rs,4,500 per month till the possession of the premises is restored to the plaintiff.
(e) Granting cost of the suit.
(f) Grant such better and appropriate relief to the plaintiff as may be deemed fit and proper by this honourable Court keeping in view the conduct of the defendant and in the interest of justice.
4. ' Where the plaintiff, Syed Amjad Ali, of Civil Suit No,1401 of 2001 made the following prayers:- "(a) To cancel the Declaration of Oral Gift dated July 1, 1998 executed by the Defendant No,1 in favour of the Defendants Nos.2 and 3 in respect of the First Floor of the Property bearing House No,R-18, Block 15, Federal '13' Area, Karachi, known as Dastagir Society and any other document(s) executed and or obtained by the defendants Nos.2 and 3 in `their favour on the basis of the said document of Oral Gift from any authority(s).
(b) To declare that document of Oral Gift dated July 1, 1998 is void ab inito in law, as the plaintiff is in occupation, enjoyment and physical possession of the Property bearing House R-18, Block 15, Federal '13' Area, Karachi known as Dastagir Society, Karachi an also declare that the plaintiff is the owner of the suit property.
(c) To direct the Defendant No,1 to perform his commitment, promise and execute the necessary Settlement Deed in favour of the plaintiff whereby, the plaintiff is the exclusive owner of the First Floor of the House bearing No,R-18, Block 15, Federal `IV Area, Karachi known as Dastagir Soceity.
(d) Permanent Injunction restraining the defendants agent(s), person(s), servant(s), successor-in- interest or any other person claiming through or under them from interfering with the peaceful physical possession, occupation, enjoyment, of the Plaintiff in respect of House bearing No,R-18, Block 15, Federal B' area, Karachi known as Dastagir Society without due process of law.
(e) Any other relief befitting to the facts and circumstances of this case may also be awarded.'
5. ' For the reason that both the present second appeals arise out of the very same consolidated judgment passed by the learned additional District Judge Central, Karachi, and also the fact that the same pertain to the very same property involved in the said two suits, the present appeals are being disposed of by this common order.
6. ' Plaintiff, Syed Amjad Ali asserted in his suit that defendant Syed Akhtar Ali, is his father while defendants Mst. Kaniz Fatima and Miss Anis Fatima are his sisters. Syed Akhtar Ali and Miss Anis Fatima reside on the ground floor of the House bearing No,R.18, Block 15, Federal '13' Area, Dastagir Society, Karachi, whereas the plaintiff resides on the first floor premises of the said property since the year 1996 having exclusive possession thereof without any interruption or hindrance from any person and got his telephone connection installed at the first floor premises; he further contended that his sister, Mst. Kaniz Fatima, defendant No,2 is separately residing with her husband and children, as well as working as grade II Officer in the Credit Management Division, Allied Bank of Pakistan Limited, "and has good connection with the high officials of the police and also with the Army people"; his father Syed Akhtar Ali retired from service in the year 1994 while defendant No,3 is working as a household lady and, therefore, the plaintiff asserts that they both are being maintained by him and by no body else having great love and affection with his own mother also who resides on the ground floor premises of the said suit property.
7. ' Plaintiff further asserted that his brother left the suit property for the reasons that the defendants Mst. Kaniz Fatima and Miss Anis Fatima, allegedly used to fight with their respective wives and created domestic problems for them, whereas the plaintiff being "obedient and loving son of his father continued living with the father" and also went on paying all his salary amount to the father since he got himself employed; further his father handed over the physical possession of the first floor premises of the suit property to him with oral agreement that he will execute "the Settlement Deed in connection thereof" so that the ownership rights in the first floor premises of the plaintiff should get confirmed whereas defendant No,3, his sister Miss Anis Fatima would become owner of the ground floor premises "after the death of defendant No,1".
8. ' The plaint makes the narration of the household affairs and it so appears that the relations in between the parties got strained in due course of time; in short, the plaintiff asserts that he had all along been fully devoting, himself towards proper maintenance of the household affairs by spending all the amounts of his own earnings and also paid some amount to the defendant No,1 who had promised and agreed to transfer the first floor premises of the property in his name, and he went on spending money towards proper maintenance of the first floor premises itself; but the defendant No,1 then executed "declaration of gift" in favour of defendants Nos.2 and 3 and did not fulfil his promise of transferring the same in the name of the plaintiff by means of execution of proper transfer documents and to get the same registered; on the basis of the said declaration/oral gift the mutation of the property stands effected in the names of the defendants Nos. 2 and 3, although the plaintiff continues to be in physical possession and enjoyment of the first floor premises since the year 1996; defendant No,1 allegedly was requested by the plaintiff to fulfil his said promise; but he refused to transfer the portion of the said property in his favour and instead some notorious gundas were hired with intention that they may attack upon the plaintiff; hence the above quoted prayers were made by the plaintiff, Syed Amjad Ali in his own suit.
9. ' On the other hand, plaintiffs Mst. Kaniz Fatima and Miss Anis Fatima asserted in their own suit that their father purchased the said house as a single storey building through registered document and then himself constructed the first floor premises thereon during the year 1973 and then gifted out the entire property to them by means of registered document before the Sub-Registrar Karachi, on 1st July, 1998 and the mutation in the record of rights stands effected in their names whereas defendant No, l/plainitff Syed Amjad Ali was residing with the family in the first floor premises of the said house "under permission of the father/owner" and they being his sisters, allowed them to continue temporarily to reside on the first floor premises out of love and affection for their brother but who then became harsh and aggressive, used abusive language while addressing them and therefore they revoked the permission, which they had accorded to him to temporarily reside in the first floor rooms of the house, and asked him to vacate the same, who then filed suit for cancellation of the gift deed for declaration and for permanent injunction against them and against their father (referred to above); they further asserted that plaintiff Syed Amjad Ali was allowed to utilize one room of first floor only whereas remaining two rooms remained in possession of the plaintiff No,2 and her father but he falsely claimed in the suit to be in possession of the entire first floor premises and he declined to vacate the house; hence the above quoted prayers were made by them in their own suit.
10. ' As stated above, learned VIth Senior Civil Judge, Karachi Central, dismissed the suit of plaintiff Syed Amjad Ali whereas the suit of plaintiffs Mst. Kaniz Fatima and Miss Anis Fatima was decreed; learned Additional District Judge (Central) Karachi, dismissed both the appeals; hence the present two appeals have been filed by him.
11. ' Relevant observations of the appellate Court read as under:--- "Admittedly the respondent No,1 being a lawful owner of the suit property had gifted the suit property to the respondents ' Nos.2 and 3 by registered gift deed. Respondent No,1 in his evidence confirmed the said fact. On the contrary appellant also admitted that Respondent No,1 was lawful owner of the suit property. Appellant further admitted that respondent No,1 gifted the same to the respondents Nos. 2 and 3 who are real daughters of the respondent No, 1 . Appellant deposed that execution of gift deed dated 1-7-1998 in respect of the suit property was in his knowledge.
12. Appellant alleged that respondents Nos.2 and 3 with a collusion obtained a gift in their name.
13. Execution of gift deed is admitted, acceptance of gift deed is also admitted, only delivery of possession of gifted property was not made because younger brother of the respondents Nos.2 and 3/appellant was residing on the first floor of the property who was allowed to occupy the same for love and affection. Appellant's counsel contended that since possession of the gifted property has not been handed over to the persons to whom gift has been made, meaning thereby ingredient of gift has not been fulfilled, it is held in the case reported in PLD 1991 SC page 466 "That strict proof by the donee of transfer of physical possession was not insisted upon when the father is donor for a daughter". It is further reported in 2004 SCM R 1701 that "In a case of gift to wife or to ward, the delivery of possession was immaterial". In the instant case the respondents Nos. 1 and 3 were in possession of the suit property , therefore, possession of one donee i,e, respondent No, 3 can be assumed as possession of both donees. The appellant deposed that the alleged gift was made regarding the ground floor of the suit property and not for the first floor of the suit property.
14. Respondent No,1 in rebuttal to statement of the appellant stated that the description of the disputed property was prepared from the sale deed dated 18-7-1967, because at that time a house was constructed only on the ground floor and therefore, the sale-deed was in respect of single storey only. First floor was constructed by the respondent No,1 in the year 1973 as per approved plan. At the time or execution of gift deed the suit property was double storey. Respondents Nos. 2 and 3 accepted the gift deed of the entire house made by the respondent No,1 in their favour. On the other hand the appellant has not produced any documentary evidence establishing that the ground floor of the suit property was gifted to respondents Nos.2 and 3. The related documents produced by the appellant and the respondents proved without any shadow of doubt that in all the related documents the word single storey house on Plot No,18, Block No,15, measuring 142 Square Yards is mentioned and no where is mentioned the word ground floor or except first floor of the house. Respondents Nos. 1, 2 and 3 step into the witness box in the Court and confirmed about the gift made by the respondent No,1 to respondents Nos. 2 and 3 of entire house. Appellant failed to establish that the gift-deed dated 1-7-1998, in respect of the suit property is void and was got registered by the respondent No,1 in collusion of the respondents Nos. 2 and 3 illegally. Appellant to prove his possession of the first floor of the suit property produced telephone and electricity bills.
15. Bills are for payment of utility consumed by him. Appellant has not produced any document to establish that he constructed first floor of the suit property after spending huge amount from time to time on construction of first floor to his father. There is oral version of the appellant not supported by any independent evidence. Appellant has failed to established that settlement between him and his father regarding transfer of ownership rights in favour of appellant in respect of first floor of the suit property was made. There was no contract between the appellant and the respondent No,1 regarding transfer of ownership rights in favour of the appellant. Respondent No,1 on his own free will executed declaration of gift in favour of the respondents. Nos. 2 and 3, who got: mutated the suit property in their names. The appeal filed on behalf of the appellant is totally misconceived and has been filed to deprive the respondents from their legal rights. Learned VI Senior Civil Judge Karachi Central has rightly appraised the evidence and arrived at right conclusion. VI Sr. C.J. Made appreciation of evidence in accordance with law which requires no interference. Appellant has miserably failed to point out any illegality, error and misreading of evidence while dismissing the suit filed on behalf of the appellant. I hereby maintain the judgments and decrees dated 5-7-2005 and 13-7-2005."
16. ' Heard Mr. Muhammad Akthar for the appellant in both the appeals and Mr. Qazi Majid Ali for the respondents.
17. ' It has come to the evidence recorded by the trial Court that father of the parties namely, Syed Akhtar Ali, admitted/deposed that he had gifted out the entire property to both the ladies, viz. His daughters: Articles 138-139 of Muhammadan Law empower a Muslim owner of the property to gift out his property in favour of any person, whereas in the present case he himself admitted that the entire property was gifted out by him to his own daughters to the exclusion of his son, viz. Syed Amjad Ali.
18. ' The house was admittedly purchased by the father of the parties through registered document and it has come on record that first floor premises of the said property was constructed after Syed Akhtar Ali purchased the same; the presumption of law would be that the owner himself raised the construction of the first floor building until and . Unless contrary is proved through reliable evidence, which is not available from the side of the appellant the evidence recorded by the trial Court.
19. ' Needless to say that the dispute being in between the son/brother on the one hand and father/daughters/sisters on the other, it would have been but, natural that the son/brother must have been spending some money towards welfare of his own father and sisters, but then such expenditure of the amount on his part could not be treated as consideration towards part of the property in his favour, for the simple reasons that the property documents in favour of Syed Akhtar Ali, father of the appellant, as also in the names of his daughters are in the shape of registered documents, and it is a settled principle of law that oral version cannot be entertained, much less than to believe over and above the contents of the registered documents.
20. ' Learned counsel for the appellant has argued that the courts below failed to record their findings on the pleadings of the parties and on the basis of separate issues framed by the trial Court and therefore the provisions of Order XL:, Rule 31, C. P. C. Were infringed.
21. ' Suffice it to say that it is also a settled principle of law that where the complicated questions of fact and/or law are not involved in a case/suit and on the other hand the findings recorded by the Courts below on the pleadings of the parties are clear enough to determine their rights on the basis of their pleadings respectively raised by them, the judgment so passed by the Courts below could not be said to have infringed the provisions of law; as stated above, the dispute in between the parties is as to whether the father had at any time agreed to transfer the first floor premises of the disputed property in favour of the appellant, his own son; it has already been observed above that it would be suffice to say that father having purchased the property through registered document and executed documents in favour of his daughter, the oral version of the appellant to the extent that father entered into oral agreement to execute declaration of transfer of first floor premises in his favour cannot be believed.
22. ' Under the circumstances there is no force in these two appeals which are hereby dismissed in limine together with the listed applications.