' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails the judgment and decree passed by the learned Additional District Judge, Faisalabad, whereby the appeal of the respondent No,1 was accepted and his suit was decreed, as prayed.
2. Precisely, relevant facts are that respondent No,1 filed a suit for declaration, initially against Syed Zahid Hussain and Mst. Inayat Bibi but the latter died pending suit- and her heirs/legal representatives were impleaded in her place. Respondent No,1 claimed in his plaint that he was owner in possession of the land measuring 12 Marlas and 1-1/4 sarsahis as his share whereas Syed Zahid Hussain (petitioner) had no concern with the disputed property. Respondent No,1 also challenged gift deed dated 19-10-1985 and Mutation No,7908 dated 23-10-1985 sanctioned on the basis thereof alleging those to be forged, fictitious, illegal and void and in operative qua his rights.
Respondent No,1 also prayed for permanent injunction by way of consequential relief praying that the petitioner be restrained from alienating the property in dispute or from interfering in his possession, thereover.
3. The petitioner and respondents Nos.2 to 4 being defendants in the suit denied the assertions of the respondent No,1 in his plaint and besides raising certain preliminary objections regarding lack of cause of action, suit being barred by imitation and it being non-maintainable, claimed special costs through their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful vide his judgment and decree dated 24-10-2001 dismissed the suit of respondent No, 1.
4. Respondent No,1 aggrieved of the decision of trial Court dated 24-10-2001, filed an appeal before the learned Additional District Judge, which was accepted and his suit was decreed reversing the judgment and decree of the trial Court vide his judgment and decree dated 8-11-2002. The petitioner, therefore, filed the instant revision petition, which was admitted to regular hearing and after service of the respondents, has now been laid for final determination.
5. The learned counsel for the petitioner submits that gift by Muhammad Siddique in favour of the petitioner was though a registered sale-deed, execution of which was not denied by the donor in spite of the fact that he lived thereafter for about 10 years, having died on 4-12-1995. According to his submissions, where execution of a registered document is not denied by the executant, such document need not be proved according to Article 79 of the Qanun-e-Shahadat Order 1984. He further contends that though the petitioner was not required to produce any evidence in proof of registered gift deed yet the petitioner produced D.W.1 Muhammad Aslam who was scribe of the gift deed and D.W.2. Muhammad Tariq one of the marginal witnesses, besides statement of D.W.3 who appeared at the time of making of gift and execution of registered deed in this behalf and accepted gift in place of the petitioner. He further elaborated his argument by saying that wife of the donor Mst. Inayat Bibi was impleaded as a defendant to the suit by respondent No,1 who supported gift in favour of the petitioner by. Filing her written statement. According to the learned counsel for the petitioner, in presence of registered gift deed, respondent No,1 was required to prove that gift deed dated 19-10-1985 was fake and fictitious but there is not an iota of evidence on the file showing that a lawful gift was not made by the donor (Muhammad Siddique).
6. The learned counsel for respondent No,1 refuted the assertions of the petitioner and supported the appellate judgment and decree and urged that P.W.2 while appearing in the witness-box deposed that the gift in question is void but this part of his statement was not cross-examined by the petitioner and under law it will be presumed that he has admitted the statement of the P.W.2 at least to the extent of voidability of the gift. He in this behalf referred to the case of Abdul Manan and others v. Sikandar Khan (1992 CLC 505). He further contends that the petitioner was required to prove, not only the gift deed but also transaction itself being its beneficiary but he failed in this behalf and in this manner, the appellate Court has rightly decreed the suit of the respondent No, 1.
He further submitted that the mere registration, of the document was not enough to prove the fact of gift which should have been proved by some independent evidence. A reliance in this behalf was made to the cases of Siraj Din v. Mst. Jamila and another (PLD 1997 Lahore 633). (2001 MLD 1511) and Ch. Muhammad Boota v. Mst. Bano Begum (2003 CLC 485). It has also been submitted on behalf of respondent No,1 that heirs of the last male holder could only challenge the gift after the death of the donor because right of inheritance accrues to them on his death. Reference is made to the case of Sikandar Hayat and others v. Ahmad Sher and others (2003 CLC 1006). He further elaborated his arguments by saying that revisional jurisdiction cannot be invoked where a lawful judgment has been passed by the appellate Court after due appraisal of the evidence on the file.
7. I have anxiously considered the respondent arguments of the learned counsel for the parties and have examined the record, appended herewith. Muhammad Siddique owner was issueless and on his death property was to be inherited by his widow Mst. Inayat Bibi and his brother i.e, respondent No,
1. The petitioner was nephew of Mst. Inayat Bibi wife of Muhammad Siddique owner, who gifted the property in question through a registered gift deed dated 19-10-1985 in favour of the petitioner and delivered the possession under the gift. Muhammad Siddique. (donor) died on 4-12-1995, whereas his wife died pending the instant suit, after filing her written statement. The gift deed having been executed after coming into force of Qanun-e-Shahadat 1984, its Article 79 is relevant for proof of execution of documents, required by law to be attested which is reproduced as under:- - "79. Proof of execution of document required bylaw to be attested:--- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of, proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any documents, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
8. Under proviso to Article 79 of Qanun-e-Shahadat Order, 1984 reproduced above, clearly denotes that it shall not be necessary to Call an attesting witness in order to prove execution of any registered document unless its execution has been specifically denied by the person by whom it purports to have been executed. Muhammad Siddique, executant of registered gift deed dated 19- 10-1995 lived for more than 10 years after execution of it but did not challenge its execution before any Court or authority. Denial of execution of gift deed by respondent No,1 has no meaning for the purpose of proof of document thus in presence of this document to which a presumption of correctness was attached, no proof regarding its execution was needed. Even under the provisions of the Registration Act 1908, this document carries a presumption of due execution. Petitioner, in spite of it produced; Muhammad Aslam D.W.1. Who stated that he scribed the gift deed which was signed by Muhammad Siddique and other marginal witnesses in his presence. He also deposed that this gift deed was entered in his Register at Serial No,282 dated 109-1989, copy of which was produced by him as Exh. A.3. This witness was cross-examined but nothing of any worth came out in support of the respondent No,1 The other witness is Muhammad Tariq Javed D.W.2 who deposed that he is a marginal witness of Exh.
1. He further stated that Muhammad Siddique along with him, signed this document and possession of the house in question was delivered to the petitioner. This witness made a statement that Muhammad Siddique donor lived for about 10/12 years thereafter. In the cross-examination D.W.2 stated the Muhammad Siddique was his neighbour and in this manner, he was known to him.
There is nothing material in the cross-examination of this witness. The petitioner produced yet another person Syed Bashir Muhammad Shah as D.W.3 who stated that marginal witnesses and Muhammad Siddique donor signed the gift in his presence, and favour offer and acceptance of the gift took place in his presence. He also certified that Muhammad Siddique died in December, 1995.
Statements of D.Ws.1 to 3 are enough in support of a registered gift deed and in proof of offer/acceptance of the gift by the donor and the donee, respectively. In absence of gift, property in question was to be inherited by Mst. Inayat Bibi as widow of Muhammad Siddique, to the extent of her Sharai Share but she also did not dispute making of gift by her husband rather she being defendant in this suit, supported the case of the petitioner in her written statement. The petitioner since gift in his favour in the year 1985 is still in possession of the property where he has telephone, electricity and Sui Gas connections in his name and utility bills have been produced to show possession of the petitioner over the property subject of gift. It is clear that all the three gredients of a valid gift, as needed under the judgment of the Honourable Supreme Court in the case of Alif Khan v. Mst. Mumtaz Begum and another (1998 SCMR 2124). The petitioner has also proved a lawful gift in his favour being beneficiary of the above referred gift deed.
9. Respondent No,1 in order to prove fake and fictitious nature of the gift produced two witnesses including himself, P.W.1 Muhammad Tufail, though stated that at the time of gift the petitioner was out of country and possession of the house remained with widow and brother of the donor yet was not present at the time of making of gift and execution of Exh.D.1 thus, his statement is not much relevant. Respondent No,1 while appearing as P.W.2, no doubt deposed that Muhammad Siddique never gifted the property in dispute and did not transfer possession therefore, besides claiming that gift deed dated 19-10-1985 is forged, fictitious and fraudulent but there is no corroborative evidence in support of his statement which being tainted with interest, cannot be relied in isolation.
Arguments of the learned counsel for the respondent No,1 that his statement regarding fictitious and fraudulent nature of the gift being not subjected to cross-examination should be presumed to have admitted. This assertion cannot be accepted for multiple reasons, because on the first hand he was cross-examined touching transfer of possession to the petitioner by the donor, under the gift and on the other hand, there is suggestion to P.W.2 that his statement is false and his suit is incorrect, besides that the gift deed was just and fair. To my mind this suggestion was enough to challenge the entire examination-in-chief of P.W.2. Be that as it may even if the entire statement of P.W.2 be accepted there being no supporting evidence, I am not ready to accept this statement which was made by the plaintiff himself. A party to the suit has to succeed on the basis of his own evidence and not on account of lapses of his adversary. Respondent No,1 could prove his case.
10. For what has been discussed above I am clear in my mind that a lawful gift having been proved on the file, judgments referred by the learned counsel for respondent No,1 do not help- his case.
The learned Additional District Judge while reversing well-reasoned judgment of the trial Court did not opt to meet the point evolved therein and instead fell in illusions without adverting to the above noted points, thus his judgment and decree dated 8-11-2002 cannot be maintained especially when it runs counter to the evidence on the file and is opposed to the settled principles known for administration of justice. The learned Additional District Judge acted illegally and with material irregularity while deciding lis before him and consequently I am constrained to set aside his judgment and decree dated 8-11-2002 by accepting the instant revision petition with the result that the judgment and decree passed by the learned trial Judge on 24-10-2001 shall stand revived.
Order accordingly with no order as to costs.