' MIAN SAQIB NISAR, J.---Admittedly, Taj Muhammad was the owner of the suit property, i.e, measuring 63 Kanals and 7 Marlas, situated in the different Mouzas; he died issueless somewhere, in the year 1991 and the mutation of inheritance qua his estate was sanctioned in favour of his widow and respondent No,1, Muhammad Sharif, his brother; the appellants, who are his nephews being the sons of the predeceased brother, on 9-5-1991, filed a suit claiming that Taj Muhammad, during his lifetime, had orally gifted the suit-land in their favour, which gift he acknowledged, by virtue of the memorandum of gift, executed on 15-10-1990. They therefore, challenged the inheritance mutation, asserting that the suit property was not the part of the estate left by Taj Muhammad. Mst. Tubi Begum, widow of Taj Muhammad, did not contest the matter, rather filed the conceding written statement, whereas Muhammad Sharif, joined the issues and after the conclusion of the trial, the learned Civil Judge, decreed the suit, holding that the appellants have been able to prove a valid oral gift in their favour. In this regard, the statement of Rana Naseem Ahmed, the marginal witness of the memorandum of gift Exh.P.1; the statements of the scribe and Maqbool, the tenant of the property, were relied upon. However, on appeal of respondent No,1, which was accepted, the findings on the relevant issues have been reversed, with the result that the suit stands dismissed.
2. At the very outset, the learned counsel for the appellants states that during the pendency of the suit, Zulfiqar, one of the appellants, got recorded his better statement on 22-5-1991, whereby he conceded that the valuation of the suit property is more than three lac of rupees and agreed to pay Rs,15,000 as court-fee; the Court accordingly directed for making up the deficiency in the court-fee and because the learned Civil Judge, seized of the matter, lacked the pecuniary jurisdiction on account of the above, the learned District Judge, transferred the matter to the Court of the competent jurisdiction. However, when the suit, was decreed, the respondents though were supposed to file the R.F.A., before this Court, rather they challenged the judgment and decree before the learned District Judge, which had no jurisdiction at that time, resultantly, the judgment and decree impugned is without jurisdiction and thus nullity in the eye of the law.
3. On merits, it is submitted that the statements, which have been relied upon by the learned trial Court, were adequate and weighty inasmuch as proves the oral gift in favour of the appellants, but those have been erroneously and illegally discredited by the learned Court of appeal. It is further submitted that the memorandum of gift, in fact was the main document, which the appellants were supposed to prove; and that marginal witness P.W.2 and the scribe of the document P.W.1, have duly proved the same. However, Habib Anwar, the second marginal witness, admittedly had died by that time therefore his statement could be recorded. Above all, the possession, which was sine qua non for the validity of the gift, has been procured by the appellants through Maqbool, who admittedly, was the tenant of the property under Taj Muhammad and states to have attorned in favour of the appellants. Lastly, it is argued that as Mst. Tubi Begum, had filed a conceding written statement, therefore, at least, to the extent of her 1/4th share, the gift in favour of the appellants, should have been held to be valid and the appellants should be given the share to this extent in the suit-land.
4. I have heard learned counsel for the parties and find that the statement of P. W.1, the scribe, contradicts the statement of P.W.2, Rana Naseem Akhtar; the document Exh.P.1, which the scribe, who is a professional deed writer states to have incorporated in his record at Serial No,209, is not there, rather it is some other document. Besides the Exh.P.1, is on unstamped paper and though it has been allegedly thumb marked by Taj Muhammad, but the opinion of an expert has not been sought by the appellants. No witness has been examined to prove the signature of Habib Anwar as the alleged marginal witness, resultantly, on the basis of the sole statement of Rana Naseem Akhtar, the appellants cannot be held to be got a valid gift in their favour; especially, when they had not been able to establish the earlier oral gift vis-a-vis, as to the time, date, day and venue and the persons, in whose presence, the gift was made; there is also no independent witness that Taj Muhammad had directed the tenant Maqbool to attorn in favour of the appellant, or Maqbool had actually attorney and made any payment of the rent or share of the produce to the appellant; simple statement of Maqbool in this behalf to my mind is not adequate proof of the gift; moreover, there is no official record about the gift at all; it is very surprising that though the appellants allegedly got the gift of the property orally, the date, etc., of which is not established on the record; they also took the trouble of getting the memorandum of gift executed in their favour. But for no good reason, the matter was not reported for the incorporation and the sanction of the mutation.
Resultantly, I am constrained to uphold the findings of the learned Court of appeal that the appellants have failed to prove a valid gift in their favour.
5. As regards the submission about the incompetency of the appeal of the respondents, on account of lacks of jurisdiction, suffice it to say that despite the better statement and also the affixation of the court-fee, the plaintiffs/appellants did not amend the requisite paragraph of their plaint, and the value of the suit for the purpose of jurisdiction remained the same i.e, Rs,400. The same valuation was incorporated in the decree. The appellants never applied for the amendment of the decree, which contains the same valuation till date. Under the law, it is the decree, which has to be challenged in appeal and the forum of appeal should be as per the value mentioned therein, thus the respondents exactly have followed the decree in choosing the appellate forum and they cannot be blamed for that. Even otherwise, this objection was never raised by the appellants before the lower appellate Court. The plea raised today that the objection was orally made before the forum below, suffice it to say that no affidavit of any counsel, who argued the case before the lower forum, has been placed on the record. In the light of above, this plea has no force and the same is hereby repelled.
6. As regards the last submissions that Mst. Tubi Begum has conceded the claim therefore, at least, to that extent, the suit should have been decreed, learned counsel for the respondents, when confronted has conceded. Therefore, by modifying the judgment and decree of the Court of appeal, the suit of the appellants is decreed only to the extent of the share of Mst. Tubi Begum i.e, 1/4th in the suit property and for the rest, it remains dismissed. Accordingly, this appeal is partly allowed.