1. ' SAJJAD ALI SHAH, J.---Through these revisions, the applicants have challenged a common judgment and decree passed by the Ist: Additional District Judge, Nawabshah in Civil Appeals Nos.
2. 39, 40 and 41 of 2003. At the request of the learned counsel for the respective parties both these revisions are being finally decided at the stage of Katcha peshi.
3. ' The facts necessary for the purposes of deciding these revisions are that one late Haji Habib-ur- Rehman the father and predecessor-ininterest of the parties involved in litigation was the owner of the following properties:--
(1) House bearing C.S. No,1914 (132-6 sq:yards) situated in Manuabad Nawabshah.
(2) Share in Shop No,869 Chakra Bazar, Nawabshah in possession of Muhammad Yameen tenant.
(3) R.S. No,870 (Thalia) measuring 14 yards in possession of Ali Sher, tenant.
(4) C.S. No, 2046 consisting of 10 shops in possession of various tenants and one godown (locked).
(5) Land R.S. No, 122/5,6 deh Khiyaroon Taluka Nawabshah measuring 4-20 acres.
4. ' Late Haji Habib-ur-Rehman died on 6-11-1991 leaving behind three sons and two daughters namely Muhammad Usman Ghani, Muhammad Ibrahim, Abdul Sattar, Mst. Safia and Mst. Sakina, one of the son's namely Abdul Sattar died and his legal heirs were joined.
5. ' After approximately three years of the death of Habib-ur Rehman, dispute arose between the legal heirs in respect of aforesaid properties, as the applicant claimed ownership of properties listed at S.Nos.1 to 4 on the basis of a gift deed executed in his favor by late Habib-ur-Rehman, consequently, the respondent Muhammad Usman Ghani filed F.C. Suit No,63 of 1994 on 18th September, 1994 seeking a declaration that gift deed, dated 6-5-1986 allegedly executed by late Habib-ur-Rehman in favor of Haji Muhammad Ibrahim the present applicant in respect of properties listed at S. Nos.1 to 4 is forged and inoperative by asserting the knowledge of such gift only on 30-4-1994 when the applicant claimed the properties mentioned at S.Nos. 1 to 4 on the basis of gift and further partition of the said properties. Thereafter the applicant Ibrahim filed Suit No,68/94 for recovery of Rs,79200 as rent recovered by respondent Muhammad Usman Ghani in respect of properties cited at S. Nos. 1 to 4 from November, 1991 to April, 1994, as the applicant claimed to be exclusive owner of the said properties on the basis of said gift deed and the recovery of rent by Muhammad Usman on his behalf and under his authority. The applicant Ibrahim along with her two sisters filed another Suit bearing No,23/95 in respect of their share in property mentioned at S. No,5. i,e, the agricultural land in possession of respondent.
6. ' All the three suits were consolidated and decided by the Ist. Senior Civil Judge, Nawabshah by a common judgment, whereby Suit No,63/64 was decreed to the extent that the gift was declared void and the partition accordingly was directed. Suit No,68/94 filed by the present applicant for the recovery of Rs,79200 as rent recovered by the Respondent Usman Ghani was dismissed whereas in Suit No,23/95 partition of the agricultural land was directed by drawing a preliminary decree, while the prayer to render account of the income derived from the said land was rejected.
7. ' The Applicant being aggrieved with filed Civil Appeal No,39/2003 against judgment and decree in suit No,68-94, Civil Appeal No,40/2003 against judgment and decree in suit No,23/95 and Civil Appeal No,41-2003 against the judgment and decree in Suit No,63/94. All the three appeals were decided by a common judgment subject-matter of these revisions whereby the learned Ist: Additional District Judge, Nawabshah was pleased to affirm the decree in Suit No,63/1994 by upholding the finding of the trial Court that the gift is void by dismissing Appeal No,41 of 2003 whereas decree in Suit No,68/94 was reversed to an extent that the respondent Usman Ghani was directed to share the rent collected by him with other legal heirs by allowing Civil Appeal No,39/94 likewise, decree in Suit No,23/95 was also reversed by allowing Appeal No,40/94 in respect of agricultural land in possession of respondent Usman Ghani.
8. ' These two revisions have been filed against the judgment and decree in Civil Appeal No,41 of 2003 whereby the finding of the trialCourt on gift were maintained and Appeal No,40 of 2003 wherein the rent of properties listed at S. Nos.1 to 4 was directed to be distributed amongst the legal heirs in proportionate to their shares, whereas the parties have finally accepted the verdict in Appeal No, 40/93, as no revision has been filed against the said judgment and decree.
9. ' Mr. Basharat Ahmed Jatt, learned counsel for the applicant has contended that the trial as well as Appellate Court failed to consider that the suit itself was hopelessly barred by time as the respondent challenged the gift deed, dated 6-5-1986 by filing Suit No,63 of 1994 on 12-9-1993. It was further contended that the applicant in the year, 1989 had initiated ejectment proceedings against one of the tenant in his own name and therefore, the respondents at least had knowledge from 1989. It was next contended that both the learned Courts below have erred in law by holding that gift could not be proved as marginal witnesses to he gift deed were not examined. Per learned counsel since the gift being a transaction in between the family members, therefore, in view of the supporting statement from the family members including two sisters in favor of the applicant, gift was fully proved. It was further contended that the rent of the premises, subject-matter of the gift from November, 1991 to April, 1994 were recovered by the respondent Muhammad Usman Ghani on behalf of the applicant and under his authority, therefore, the applicant had constructive possession of the property, subject-matter of the gift and therefore, the gift was complete in all respects and therefore, the Courts below wrongly concluded that the gift, if any, was void for want of possession. It was lastly contended that the Trial Court erred in law in allowing the parties to record evidence by filing respective affidavits in evidence. Learned counsel while referring to Order XVIII Rule 4 has contended that the recordal of evidence by way of affidavits has vitiated the entire proceedings.
10. ' In the end Mr. Basharat Ahmed Jatt, learned counsel for the applicant submitted that as a result of reversing the concurrent findings on the issue of gift, Civil Revision Application No,115 of 2005 is liable to be allowed and the respondent No,1 is to be directed to pay a sum of Rs,79,200 to the applicant as rent collected in respect of the properties, subject-matter of gift.
11. ' In reply Mr. Qazi Munawar Ali, learned counsel for the respondent Muhammad Usman Ghani has contended that the respondent acquired knowledge of alleged gift only on 30-4-1994 and the suit challenging the gift was filed on 12th September, 1994, therefore, the question of suit being barred by time does not arise. In response to the contention of Mr. Jatt, as to filing of ejectment case against one. Of the tenant in the year, 1989 Mr. Qazi has argued that the respondents had no knowledge of filing any ejectment proceedings against the tenant norsuch factum was proved.
12. Regarding non-production of marginal witnesses in witness box and supporting evidence of family members, Mr. Qazi has taken me to the evidence of all witnesses supporting the gift produced by applicant/defendant even they have deposed that no document was written in their presence and further that the possession of the properties, subject-matter of the gift were never handed over to the applicant by the deceased father during his lifetime, and he was collecting rent from all tenants till he breathed last. In support of his contention that in cases where the marginal witnesses are not examined the consistent view of this Court as well as of Apex Court is that the concurrent findings of the Courts discarding the gift are not to be interfered, learned counsel has placed reliance on the case of Muhammad Ashraf v. Bahadur Khan (1989 SCMR 1390), Muhammad Shafiq v. Abdul Karim (2006 CLC 1790), Province of Punjab v. Fateh Muhammad (2006 CLC 1733).
13. ' As to recovery of rent learned counsel has contended that the respondent Haji Usman had recovered the rent after the death of his father up to April, 1994 in his own rights as legal heir without any authority from applicant which goes to prove that the applicant Ibrahim neither collected the rent from the tenants during lifetime of deceased nor after his death, it was only when the instant suit was filed, the applicant as a counter blast filed Suit No,68 of 2004 for recovery of rent from November, 1991 to April, 1994 by alleging its recovery by the respondent as attorney of the applicant. As to the taking of evidence through affidavit in evidence, Mr. Qazi has contended that if the Trial Court allows the recordal of evidence by filing affidavits and the parties accepts such procedure and cross-examine each other then there is no violation of Order 18 Rule 4 and to support his contention, learned counsel has placed reliance on the case of Syed Haider Raza v.
14. Syed Imam Ali (PLD 1961 (W.P.) Lahore 800), Abdul Raoof v. Mst. Khalida (PLD 1968 Lahore 423), Hakim Ali v. Shaikh Muhammad Mazhar Ali (1979 CLC 1645) and Mst. Rashidan Bibi v. Jantay Bibi (2005 MLD 1228).
15. ' Syed Nasir Ali Shah, learned counsel for the respondent Nos. 2 to 9 viz. L.Rs of late Abdul Sattar has adopted the arguments of Mr. Qazi.
16. ' I have heard, learned counsel for the respective parties and have gone through the record as placed before me as well as the case-law cited at bar.
17. ' Taking up the first contention of Mr. Basharat Ahmed Jatt, learned counsel for the applicant on the point of limitation. A perusal of para. 13 of the plaint reveals that the respondent/plaintiff had claimed tohave acquired knowledge of the alleged gift on 30th April, 1994 though, such assertion was refuted in the written statement by stating that the plaintiff had all along the knowledge of the gift and further that the .Applicant/defendant had initiated ejectment proceedings against one of tenants in his own rights but it was not even alleged that the respondent/plaintiff had the knowledge of such proceedings. In addition thereto during the cross-examination it was not even suggested that the plaintiff had the knowledge of the gift since the year, 1986 nor any document was confronted regarding the ejectment proceedings initiated by the applicant/defendant, even no suggestion was made that the applicant/defendant in the said proceedings claimed the properties on the basis of the gift deed, dated 6-5-1986 to the knowledge of applicant/ defendant to show that respondent/plaintiff had the knowledge of the gift since 1986 or at least prior to 30-4- 1994 the date when the respondent/plaintiff claims to have acquired knowledge, therefore, I am not inclined to upset the concurrent findings of the Courts below on this issue.
18. ' As to the next contention of Mr. Basharat Ahmed regarding non-production of marginal witnesses, needless to mention that in cases where a gift is claimed, the onus to prove the execution of gift deed by the donor rest on donee who claims to be its beneficiary. In the instant case, the applicant/defendant who claims to be the donee without assigning any reason has failed to examine the marginal witnesses namely Haji Abdul Ghafoor and Haji Muhammad Hanif. The gift deed even otherwise in the instant case is not registered and, therefore, withholding of necessary evidence like two marginal witnesses raises serious adverse inference against the applicant/defendant. In the circumstances, rule of best evidence was violated, as the best evidence of the witnesses who allegedly witnessed the execution of gift deed was withheld by substituting weak evidence which makes the gift doubtful. The applicant/defendant though in order to support the execution of gift deed has produced in the witness box his two sisters and two nephews, but none of the witnesses has deposed that he or she was witness to he execution of gift, on the contrary they have admitted that the possession of the properties claimed under the gift deed remained with late Haji Habib-ur-Rehman alleged donor during his life time and also that he was collecting rent till he breathed last. It has also come on record that the respondent/plaintiff after the death of Haji Habib-ur-Rehman was collecting rent till April, 1994 as claimed by him in his own rights. The applicant/defendant though claimed to have authorized the respondent/plaintiff to collect rent, but such authority was not proved. Even otherwise, the applicant/defendant has miserably failed to prove his possession either actual or constructive on the properties subject- matter of the gift. Admittedly Haji Habib-ur-Rehman was collecting rent up toOctober, 1991 and after his death the rent was collected by the respondents/plaintiffs and such fact finds support not only from the deposition of the plaintiff/respondent, but also from the deposition of the witnesses produced by the applicant/defendant. Though delivery of actual physical possession of the property subject-matter of a gift is not necessary in all cases, specially when the donor is not in actual physical possession but in such cases the donor must spell out his intention by diverting himself not only from the ownership but of all rights attached thereto and further is liable to do all that he could to vest the donee with the ownership. In the instant case neither actual physical possession nor constructive possession of the properties subject- A matter of gift was ever handed over the applicant/defendant which makes the gift if any void and, therefore, no interference is required on this issue as well.
19. ' As to the last contention of Mr. Basharat regarding leading of evidence by filing affidavit-in- evidence, though the evidence of the parties under the law is required to be recorded in Court as envisaged under Order XVIII Rule 4, C.P.C. However, in case where the parties agree and consent for recordal of evidence by filing affidavit, then the normal procedure of recording of evidence by viva voce may be dispensed with, even otherwise to a specific query,. Mr. Basharat Ahmed Jatt has failed to point out any prejudice caused to the applicant/ defendant by recording of evidence through such mode, even otherwise the applicant/defendant not only accepted this deviation by cross-examining the respondent/plaintiff on the basis of his affidavit in evidence but also adopted the same method of filing affidavit in evidence and subjecting himself to cross-examination, therefore the objection at this stage is not only frivolous but afterthought.
20. ' In the circumstances and for the reasons recorded above, I am not inclined to interfere with the concurrent findings of facts of the Courts below recorded after proper appreciation of evidence on record. No infirmity or illegality in the impugned judgments of the Courts below has been pointed out. Since the findings of the Courts below on the issue of gift is maintained by dismissing Civil Revision Application No,116 of 2005, resultantly Civil Revision Application No,115 of 2005 challenging the judgment of the Appellate Court declining the claim of the applicant in the sum of Rs,79,200 in respect of rent received by the respondent on the basis of gift and directing the proportionate amount amongst all legal heirs also dismissed by upholding the judgment and decree of the Appellate Court.