' JAWWAD S. KHAWAJA, J.---The petitioner-defendant, namely Nasreen Bibi, is the full sister of Rukhsana Bibi respondent-plaintiff. Nasreen Bibi impugns the concurrent decrees of the learned trial Court, dated 2-2-2006 and of the learned appellate Court, dated 24-4-2006 whereby a suit for possession filed by the respondent-plaintiff has been decreed.
2. It is not in dispute between the two sisters that a gift of three marlas by their father Ahmad Shah was made in favor of the respondent-plaintiff vide gift deed, dated 16-12-1997. The father died on 11-5-1998. Thereafter, on 23-6-2000, the petitioner-defendant filed a suit seeking cancellation of the aforesaid gift deed. The suit was dismissed on 30-4-2003. An appeal preferred by the present petitioner was also dismissed on 30-9-2003. The matter as to the gift deed, therefore, has attained finality.
3. The present suit was filed by the respondent-plaintiff on 10-11-2004 under section 8 of the Specific Relief Act wherein she claimed possession of one room which is in the possession of the petitioner. Both Courts below have decreed the suit of the respondent. They have, inter alia, held that the room, which admittedly is in the occupation of the petitioner, was part of the property gifted to the respondent through the aforesaid gift deed. The learned appellate Court has also noted that the petitioner-defendant did not take any steps for demarcation of the property to prove her defence that the room which is subject-matter of the present lis, was not part of the property gifted to the respondent-plaintiff.
4. Learned counsel for the petitioner argued that the reasons prevailing with the learned Courts below for decreeing the suit of the respondent are not legally sustainable for a number of reasons.
Firstly it was argued that the onus of proving that the gift deed included the disputed room was on the respondent-plaintiff. It was, therefore, for the respondent to firstly produce the gift deed and then to have the area demarcated to establish her claim that the room in question was part of the property gifted to her. Learned counsel argued that neither the giftdeed has been produced on record nor has the respondent produced evidence of demarcation on site, which could have shown that the disputed room in the petitioner's occupation was part of the gifted property.
5. Secondly, learned counsel for the petitioner argued that delivery of possession was an essential ingredient of a valid gift. Therefore, even if the gift deed describes the gift property in a manner, which would cover the disputed room, the gift to that extent was clearly invalid because even according to the respondent-plaintiff, the petitioner is in occupation of the room since long. This contention of learned counsel for the petitioner, however, cannot be accepted in view of the fact that in an earlier suit filed by the petitioner it has been held vide judgment and decree, dated 30- 4-2003 that the gift had been validly made in favor of the respondent-plaintiff by her father.
6. Learned counsel for the respondent argued that the area disputed in the present lis was included in the gift made in favor of the respondent. This stance has not been proved on record.
The gift deed admittedly is in respect of three marlas. It was for the respondent to prove through demarcation or other evidence that the disputed area was in fact part of the property gifted to the respondent. This has not been done by the respondent although the onus of proving the same squarely lay on her.
7. In the foregoing circumstances, I find that the decrees of the learned Courts below proceeded on erroneous premise and on a misreading of the evidence including the judgment of the learned Additional District Judge, dated 30-9-2003 passed in the above mentioned suit which had been filed by the petitioner-defendant. In this view of the matter, the impugned decrees are set aside and, as a result, the suit filed by the respondent-plaintiff is dismissed.