' MUHAMMAD SADIQ LEGHARI, J.--- Dispute is over a house built on Plot No,1029(99) Farooqabad, Ali Basti Gulbahar, Karachi (hereinafter referred to as "the house") owned by Agha Hussain. His sons namely Muhammad Naqi and Mukhtar Hussain are disputing parties. The house is in possession of Mukhtar Hussain.
2. Agha Hussain the owner of the house was residing in it till his demise in 1989. Currently Mukhtar Hussain is residing in it. In 1997 Muhammad Naqi filed a suit against Mukhtar Hussain pleading therein substantially that after grant of lease in his favour in 1987 (4-10-1987) their father Agha Hussain had orally gifted the house to him and delivered possession thereof also to him. Later on the oral gift was confirmed through registered deed dated 4-10-1987. He further pleaded that somewhere in 1994 he put his brother Mukhtar Hussain in possession of the house as his licensee.
Later on in 1996 when he demanded the possession his brother Mukhtar Hussain refused to vacate the house and also issued threats to him. Following were the prayer made by him, in the suit:-
(1) To declare the plaintiff is lawful owner of the property and defendant has no claim, interest or right in the said Property bearing No,1029(99) Gulbahar, Karachi.
(2) To grant injunction against the defendant, whereby restraining him from changing the present status and or creating interest of any third party by way of transferring, handing over and selling any portion of the property to anyone.
(3) To direct the defendant to hand over the peaceful possession of the portion under his occupation in respect of Property No,1029(99) Gulbahar, Karachi.
(4) To grant mesne profit from 1-11-1996 to date of vacation of the premises at the rate of Rs,40 per day.
(5) Cost of the suit and any other relief that is deemed fit and proper by the Honourable Court.
3. Mukhtar Hussain resisted the suit and filed written 'statement challenging therein the making of any gift deed by their father in favour of Muhammad Naqi. He also expressly attacked on the validity of the gift deed specially on the question of possession claiming himself to be in possession of the house since the beginning. He also pleaded that Muhammad Naqi was residing in the house with them but had left in 1971. He also raised legal objection about the maintainability of the suit mainly on the grounds that neither there was valid gift nor the suit was in time.
4. After framing the issues the learned trial Court invited the parties to lead the evidence. After considering the evidence led by the parties and hearing the 'arguments the VII-Civil Judge, Karachi Central dismissed the suit on 30-4-2002. The judgment was followed by a decree, dated 27-7- 2002, They were assailed through appeal before the learned District Judge, Karachi Central. It was assigned to IV-Additional Sessions Judge Karachi Central who accepted it decreeing the suit of Muhammad Naqi vide judgment, dated 19-8-2004 followed by decree, dated 26-8-2004.
5. The judgment and decree passed by the learned IV Additional Sessions Judge, Karachi Central have been assailed through present revision application. After putting the respondent on notice arguments have been heard for deciding the revision application as Katcha Peshi stage.
6. The applicants' learned counsel has contended that in fact Muhammad Naqi, the brother of the applicant wants to usurp the rights of others in the house left by the father and has managed false and void registered confirmation of oral gift. According to him on 4-10-1987 when the confirmation is said to have been executed by Agha Hussain he was not in proper health and fitness to do so. In that respect he has referred to a note put by the Sub-Registrar in the bottom of the deed itself wherein he has shown Agha Hussain to be a blind man. The learned Advocate further argued that in fact the applicant was not in possession of the house since beginning and the story of putting him in possession thereof after execution of the alleged confirmation deed is a made up story. He further contends that Muhammad Naqi had never been in possession of the house or part thereof and he is falsely claiming to have been in possession at the time of so-called oral gift and confirmation thereof. It was further contended by the learned counsel that since the gift is claimed to be against the interest of other legal heirs of Agha Hussain the delivery of possession has to be proved through unequivocal and unimpeachable evidence but in present case no evidence has come to establish the delivery of possession of the entire house to Muhammad Naqi at the time of so-called gift. According to the learned Advocate the learned trial Court had rightly held that delivery of possession was not proved and the learned Appellate Court fell in error by holding that it was for the applicant/defendant to establish that possession was not handed over to the plaintiff/respondent. In fact it was the person claiming to be the beneficiary of the gift to prove the delivery of the possession. Since the delivery of possession was not proved the gift or confirmation thereof, even if executed, are void under the law.
7. Mr. S. Hasan Azhar Rizvi, Advocate for the respondent has defended the impugned decision arguing that the evidence on record proved the entry of the applicant in the house after execution of the confirmation deed. In that respect he relied upon the evidence of Muhammad Naqi and Mushtaq Ahmed one of the marginal witnesses of the deed. The learned Advocate further stated that factum of oral gift stood proved through evidence and no medical evidence was brought to show that donor was not in a fit state of health to make a gift or confirmation thereof. He further contends that the gift made in favour of one heir depriving others was not prohibited under the law and cannot be deemed as void. In support of these contentions he referred to case of Syed Mohsin Raza Bukhari reported in PLD 2004 SC 520.
8. Although applicant Mukhtar Hussain disputed the making of gift and confirmation thereof but he seriously contested the completion of the gift for want of possession of the house. Admittedly, it is not with Muhammad Naqi the donee. Currently it is with applicant Mukhtar Hussain. He claims to have been residing in that house with his father since start. Muhammad Naqi, however, claims that after gift' the possession of the house was delivered to him and he had put Mukhtar Hussain in possession as his licensee. Since the gift in dispute deprives the other legal heirs of Agha Hussain the owner of the house it is essential for Muhammad Naqi to prove the delivery of exclusive possession of the house at the time of making and acceptance of the gift and putting Mukhtar Hussain in possession as licensee. On his side is the oral word on this point but the same has been denied by the applicant. When word is against the word the fact is not deemed to have been proved by the party required to prove it. Moreover, the donor was admittedly occupying the house till his demise in 1989. It is not in evidence as to how he divested himself of the possession and in what capacity he continued residing in the house, thus, the delivery of exclusive possession to Muhammad Naqi has not been proved. In absence of that the gift is not valid.
9. The pronouncement of the Honourable Supreme Court referred to by the learned Advocate representing Muhammad Naqi is also not helpful to him in the circumstances as neither the gift in that case was depriving some of the legal heirs of the donor nor the question of possession with any of such heirs was involved in that case.
10. In view of the above the judgment passed by the trial Court was wrongly set aside by the Appellate Court. The appellate judgment and decree are therefore, set aside maintaining the judgment of the trial Court. With this order the revision application is accepted at Katcha Peshi stage.