HAMID ALI MIRZA, J.--- This direct civil appeal is directed against the judgment, dated 11-10-2002 in Civil Revision No,99 of 1996 passed by learned Single Judge of the Lahore High Court, Lahore, whereby the said civil revision was allowed, thereby judgments and decrees passed by two Courts below were reversed, hence this appeal.
2. Brief facts of the case are that the appellant instituted a suit for declaration and perpetual injunction against the respondents/defendants in respect of suit-land measuring 110 Kanals, 17 Marlas detailed in the head note of the plaint. The appellant/plaintiff claimed that respondent/ defendant No,2 Mian Muhammad had gifted away 110 Kanals, 17 Marlas of land mentioned in the head note of the plaint in his favor while 106 Kanals, 15 Marlas described in para. 9 of the plant in favor of respondent No,2/defendant No,
1. The appellant/plaintiff stated that respondent No,2/defendant Mian Muhammad has again got sanctioned Mutation No,972 of gift in respect of the suit-land measuring 95 Kanals, 5 Marlas in favor of respondent/defendant Noor Muhammad which land was claimed to have already been gifted to the appellant/ plaintiff by the respondent/defendant Mian Muhammad as such the Mutation No,972 dated 9-6-1993 of gift was illegal, ineffective upon his rights and liable to be cancelled. The appellant/plaintiff also prayed that the respondents/defendants be restrained from interfering in his possession. Learned Civil Judge 2nd Class Talagang decreed the suit vide judgment and decree, dated 19-7-1994. The respondents/defendants preferred Appeal No,119 of 1994 before the District Judge, Talagang which was passed on to the Additional District Judge, Talagang who after having heard learned counsel for the parties dismissed the appeal vide judgment and decree, dated 13-2-1996 maintaining the judgment and decree of Civil Judge, Talagang. The respondents/plaintiffs preferred Civil Revision No,99 of 1996 before the Lahore High Court, Lahore, which was heard by learned Single Judge and allowed vide impugned judgment, thereby reversed the judgments and decrees passed by two Courts below, hence this direct appeal.
3. We have heard learned counsel for the parties at length and perused the record.
4. Contention of learned counsel for the appellant is that Mutation No,972 in respect of the suit-land measuring 95 Kanals, 5 Marlas made in favor of respondent No,2/defendant Noor Muhammad by defendant No,1 Mian Muhammad was illegal, ineffective upon the rights of the appellant as the said land already.Stood gifted to him about 25 years back. He further submitted that it amounted to disinheriting the legal heir. He further submitted that copies of Jamabandi (Exh.P.1), Mutation (Exh.P.2) and Aks Shajra Kishtwar (Exh.P.3) permitted as additional evidence at the revisional stage was violative of Order XLI, rule 27, C .P. C .
5. Learned counsel for the respondents has submitted that judgments of two Courts below were found to be based on misreading and non-reading of evidence on record and law, therefore, learned Single Judge rightly reversed the same and allowed the revision which required no interference by this Court as the same is based on proper appraisal of evidence and law.
6. We do not find merit and substance in the contentions of learned counsel for the appellant.
7. Learned counsel for the appellant was asked to explain if appellant could challenge the statement of the donor his father in respect of the gift made by the latter in favor of respondent No,2 his another son Noor Muhammad during the lifetime of the donor/his father but he could not reply satisfactorily. D.W.1 Mian Muhammad the donor in his testimony has stated that he had gifted the land in suit to respondent No,2 his son Noor Muhammad respondent No,2. He was cross- examined at length but his veracity and credibility could not be shaken. Statement of D.W.1 Mian Muhammad the donor is also corroborated by D.W.2 Noor Muhammad, respondent No,2, donee, who has deposed that his father respondent No,1 had gifted the, suit-land stated in para.9 of the plaint in his favor. He was also cross-examined at length by learned counsel for the appellant but his veracity and credibility could not be shaken. The testimony of the donor and the donee are also corroborated by documentary evidence P.1, P.2 and P.3. These documents are public documents and their authenticity and genuineness could not be doubted nor was it challenged before us. This Court in the case of (i) Mst. Nusrat Zohra v. Mst. Azhra Bibi and others PLD 2006 SC 15 at page 23 in paras.9-10 has observed as under:- "(9) As mentioned hereinabove, a preferential gift made in favor of one or two by the donor in his lifetime can, by no stretch of imagination, be termed as 'void' and the Hadees as quoted by Hafiz Saeed Ahmad Sheikh, learned Advocate Supreme Court hardly renders any assistance to the claim of petitioner. The learned Advocate Supreme Court was pointedly asked that how during the lifetime of the ancestor, the validity of gift can be challenged subject to certain exceptions which are lacking in this case. There is no question of any `Zulm' as pressed time and again because it transpired from evidence that Khair Muhammad (donor) had divorced the mother of Mst. Nusrat Zohra who, after abduction, had contracted second marriage with Sikandar which prompted Khair Muhammad (donor) to deprive Mst. Nusrat Zohra from his property. One may not be agreed with the reasoning of Khair Muhammad but it cannot be questioned by anybody including the legal heirs. It is enough that Khair Muhammad himself was satisfied.
(10) It is well-settled by now that "the powers of a Muslim to dispose of the property by way of gift are unfettered. A gift cannot be invalidated only because the heirs are deprived of their shares. But where the material facts are concealed by the donee, such a gift can be declared invalid on such account. The policy of the Mahomedan Law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specific portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his' sons, provided he complies with certain forms." Zahida Khanum v. Rifat Ullah Khan 1986 MLD 1462; Muhammad Bashir v. Allah Ditta 1994 SCMR 1870; Hussain Bibi v. Aisha Bibi 1981 CLC 962; Saima Khatoon v. Manzar Hussain 1993 MLD 1542; Sardar Ahmad Khan v. Zamroot Jan PLD 1950 Pesh. 45; Khajooroonissa v. Rowshan Jehan (1986) 2 Cal. 184, 197, 3 IA, 291, 307; Chaudhry Mehdi Hassan v. Muhammad Hassan (1905) 28 All. 439, 449, 33 IA 68, 75, Sadik Hussain v. Hashim Ali (1916) 43 IA 212, 221, 38 All. 627, 645-646, 36 IC 104, Lala v. Rasula (57) A.J. & K 3."
(ii) Safi Ullah v. Ghulam Jabbar and 4 others PLD 1955 Lah. 191, where the learned Division Bench of the Lahore High Court held:-- "The only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death-bed. In other cases the power of alienation of a Muslim qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered...
' Gift in favor of some heirs to the exclusion of others is valid.
' It may be impious for Muslim to deprive some or all of his children of his property by alienating it in his lifetime and it would be obviously so in all good sense if done without just cause; but there is nothing anywhere in the Holy Qur'an to forbid such gifts when made by a person not suffering from Marz-ul-Maut."
' From the above law laid down by this Court, suit filed by the appellant/plaintiff challenging the gift made by his father, donor, in favor of respondent No,2 his son Noor Muhammad, was incompetent and not maintainable, because being a Muslim he has unfettered powers B to gift away his property to anyone of his heirs to exclusion of others and such gift cannot be invalid or void, consequently the plea of the learned counsel for the appellant that the said gift was ineffective, illegal has no force and merit.
8. So far the second contention that the additional documents could not have been allowed by the Court has also no merit considering the said documents permitted to be brought on record were public documents and their authenticity and genuineness could not be doubted and the same were admitted to be brought on record in view of the provisions contained in rule 27(1)(b) of Order XLI, C.P.C. Which empowered the Court to allow production of additional evidence to do the substantial justice between the parties.
9. Accordingly we find no legal or factual infirmity with the impugned judgment; therefore, it calls for no interference by this Court. Resultantly this appeal has no merit which is hereby dismissed with any order as to costs.