' MAULVI ANWARUL HAQ, J.---On 15-9-1985 Muhammad Sharif, the deceased respondent, now represented by his LRs,, (hereinafter to be referred to as the plaintiff) filed a suit against the petitioner (hereinafter to be referred to as the defendant). In the plaint, it was stated that the land mentioned in para.1 of the plaint was jointly owned by the father of the parties as well as the defendant along with others. The defendant gifted away 10 marlas and 6 Sarsais of land from Kilas Nos.15/7 and 15/8 of Square No,20 and delivered him possession. He raised construction of a house and shops and had been renting out the same. After the death of the father of the parties, the parties inherited 2/3 share from his estate. It was then stated that, in the first instance, in the life time of the father, the defendant managed to obtain a decree regarding the suit-land on 16-11- 1979. Upon proceedings initiated by the father of the parties, the decree was set aside and the father also filed a suit for recovery of Rs,9,000 against the defendant. It was then stated that the plaintiff has come to know that the defendant has got fabricated gift deed in respect of the land of the plaintiff. According to him, he never executed the gift deed, dated 26-3-1985 and never delivered the possession. The relations between the brothers are estranged and there is no question of gifting the property to him. He accordingly, sought a decree for cancellation of the said gift deed. The defendant in his written statement pleaded a valid gift in his favor by his written statement pleaded a valid gift in his favor by his brother in,respect of his entire land. Regarding possession, it was stated that the residential portion is being occupied by the plaintiff as a licensee under him whereas in one of the shops his tenant Abdul Sattar is there. Issues were framed.
Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 1-3-1989.
A first appeal filed by the plaintiff was allowed by a learned ADJ, Faisalabad on 11-7-1991 who decreed his suit. Thedefendant filed C.R. No, 1328 of 1991 in this Court which was dismissed on 29-7- 1991. C.A. No,431 of 1992 filed by the defendant was allowed by the Hon'ble Supreme Court of Pakistan vide judgment, dated 11-1-1994. The case was remanded back for a de novo trial. After the remand, the suit was dismissed by the learned trial Court on 14-12-1995. Appeal filed by the plaintiff was allowed on 26-3-1997. The defendant filed C.R. No,658 of 1997 in this Court which was allowed on 7-4-2000 and the learned District Judge, Faisalabad, was directed to decide the appeal. The appeal has finally been allowed by the learned District Judge, Faisalabad, on 31-5-2000 and the suit has been decreed.
2. Learned counsel for the petitioner contends that there is inherent defect in the proceedings and consequently the impugned judgment as according to him the Hon'ble Supreme Court had remanded the case for de novo trial but the learned District Judge has not only referred to the evidence after the remand but also before the remand. The precise contention is that the entire proceedings recorded prior to remand stood wiped out by the said judgment of the Hon'ble Supreme Court. He has further argued that the evidence on record has been misread. Learned counsel for the respondents, on the other hand, contends that the judgment of the Hon'ble Supreme Court has been misread by the learned counsel. He supports the impugned judgment and decree of the learned District Judge with reference to evidence on record.
3. I have gone through the copies of the' records. I deem it appropriate to deal with the said first contention of the learned counsel. I have gone through the said judgment. I find that their lordships noted the contention of the learned counsel for the defendant to the effect that the gift was proved by producing one marginal witness and the Scribe and it was further argued that the plaintiff himself did not enter the witness box. The contention of the plaintiff was that the said marginal witness is the son of the defendant while the other attesting witness was not produced. I deem it appropriate to reproduce hereunder the operative part of the judgment thereafter:-- "We have anxiously considered the arguments advanced on either side and are of the opinion that the de novo trial of the matter is necessary. We, accordingly, accept this appeal, set aside the judgment of the lower three forums and remand the case back to the trial Court with a direction to decide the case afresh after allowing opportunity to the parties to lead evidence. It is specifically directed that the plaintiff shall appear as his own witness so that he may state his case properly and the defendant/appellant has an opportunity to cross-examine him. The defendant/appellant is also directed to produce Ghulam ' Muhammad son of Imam Din the other witness of the decd and the identifying witnesses who appeared before the Sub-Registrar. The parties shall be at liberty to lead evidence on the delivery of possession."
' Upon a plain reading of the said judgment, the said contention of the learned counsel is not sustainable. The direction was to decide the case afresh after allowing the parties to lead evidence and the nature of evidence was also specified. There is nothing in the said judgment as being urged by the learned counsel. The contention is accordingly rejected.
4. I have already reproduced above the material contents of the pleadings of the parties. Whereas the plaintiff denied having made any gift in favor of the defendant, the latter's case was that a valid gift has been made in his favor. Muhammad Sharif plaintiff appeared as P.W.5 on 10-11-1994 (i,e, after the said judgment, dated 11-1-1994 of the Hon'ble Supreme Court). After stating the manner in which he had acquired the property, he stated that he had never gifted away the property and he never went to any place in this connection. He is an illiterate person. He further stated that he is continuing in possession and had never surrendered possession even for a minute. In his cross-examination, he stated that in a portion Abdul Sattar was his tenant and that he has got it vacated. He denied that he begged the defendant to let him continue residing in the house and is residing with his permission. Thereafter, a strange suggestion was given to the plaintiff which he admitted and it was that it is correct that he has stated that he had never appeared before any officer in connection with the gift deed and he has not executed any such document and the proceedings are forged and fabricated. He was not at all confronted with the gift deed.
5. It will be seen that the onus was squarely upon the defendant to prove a valid gift of the property in his favor. The gift deed is Exh.D.1. It purports to bear the thumb-impressions of Muhammad Sharif plaintiff and is attested by Ghulam Muhammad son of Iman Din and Muhammad Ilyas on of Ghulam Hussain. Muhammad Ilyas appeared as D.W.1. He stated that the defendant is his father and that the plaintiff had put his thumb-impressions on Exh.D.1 in his presence. He stated that the plaintiff is in possession of the suit property. In his cross-examination, he admitted that the plaintiff had not delivered possession after the gift. He denied the suggestion that the gift deed is fictitious.
Ghulam Hussain appeared as D.W.2 to state that Exh.D.1 was thumb-marked by his brother in his presence. He never stated that the plaintiff made a declaration of gift and that he accepted it and that the possession was delivered. Although he remained silent in the examination-in-chief. The cross-examiner took a chance and he admitted in cross-examination that possession was not delivered under the gift. He expressed ignorance that the shop which was earlier occupied by Javed is now with Aslam tenant who is attorning to the plaintiff. Muhammad Pervaiz Akhtar is D.W.3.
He states that he wrote the document Exh.D.1 and he got the thumb-impressions of the plaintiff on the same. In his cross-examination, he could not state the names of the witnesses. Muhammad Sharif son of Muhammad Rafiq appeared as D.W.4. To state that he is the Sarbrah Lambardar and had identified the plaintiff at the time of registration of Exh.D.1. In his cross-examination, apart from admitting that he identifies the executants of document on payment of a fee, he stated without any demur that the person, whom he identified, at the time of registration was not personally known to him. Zaka Ullah Malik appeared as D.W.8 as a Handwriting Expert to prove his report Exh.D.W-8/1 to the effect that the thumb-impressions on Exh.D.1 and the samples are identical.
6. Having gone through the said evidence, I find that the only marginal witness produced happens to be the son of the defendant. The Lambardar stated without any demur that the man, he identified, was not known to him. The defendant himself did not plead or depose to a completed gift in accordance with the Islamic law. I have already noted above that there is no plea and no evidence that declaration was made, it was accepted and possession was delivered. This being so, only on the basis of the report of the expert D.W.8 that the documents bears the thumb impressions of the deceased-plaintiff would not at all be sufficient to prove a valid gift either in law or in fact in favor of the defendant. The civil revision accordingly is dismissed but without any orders as to costs.