1. ' ARSHAD NOOR KHAN, J.--- The plaintiffs have filed the suit for declaration and permanent injunction against the defendants in respect of their business in the name and style of Messrs Paramount Radio Service.
2. ' The facts as gleaned out from the plaint are that the predecessorin-interest of the plaintiffs namely Zafaryab Khan was tenant in respect of Shop Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrahe-Liaquat, Karachi at a monthly rent of Rs,400 and Rs,600 respectively. The deceased Zafaryab Khan who was the husband of plaintiff No,3 and father of the remaining plaintiffs died on 15-10-1999 leaving behind the plaintiffs as his legal heirs. It is further stated in the plaint that the deceased was regularly paying rent to defendant No,3 who is the landlord of the shops where the business of the plaintiffs is being run. It is further stated in the plaint that the defendants Nos.2 and 3 being the brothers of the deceased were inducted in partnership with the deceased in his business under the name am style of Messrs Paramount Radio Service. The deceased, withdrew himself from the partnership in 1981 and inducted his wife, plaintiff No,3 Mrs. Talat Shereen, as partner in the partnership. It is further stated in the plaint that the defendants Nos.1 and 2 failed to run the business and before the death of the deceased Zafaryab Khan took over the control of the business and on his death the plaintiffs are running the same in the same premises, the defendants Nos.1 and 2 started claiming their rights in the shop/room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-e-Liaquat, Sadder, Karachi without disclosing the basis of the claim. It is further stated in the plaint that on 21-4-2002, in family gathering, the defendants Nos.1 and 2 amicably settled the matter and agreed not to claim any right or interest in the shops in possession of the plaintiffs. It is further stated in the plaint that on 22-4-2002, plaintiffs Nos.1 and 2 opened the shop in the morning time at about 11-30 a.m. Both defendants Nos.1 and 2 came there and started shouting that the defendant No,2 is owner of the Shop/Room No,12-21 in Sohail Mansion, 237-Shahrah-e-Liaquat, Saddar, Karachi by virtue of declaration and confirmation of oral gift and showed photocopy of the same to the plaintiffs Nos.1 and 2. A cursory look at the documents reveals that the document is a forged one and they refused to hand over the copy of the said gift deed to the plaintiff therefore, the plaintiff lodged a written complaint at Police Station Artillery Maidan, Karachi. On 22-4-2002 in the evening time the plaintiff No,1 went to the defendant No,3 to tender rent and he gave a copy of declaration of confirmation of oral gift, supplied to him by defendant No,1 who sought a transfer of the Shop/Room No,12 and Room No,21 in Sohail Mansion, 237-Shahrah-e-Liaquat, Saddar, Karachi in his name, to which plaintiff informed to defendant .No,3 that the said document is fake, fabricated and forged one and subsequently on 23-4-2002 a legal notice was also served on him. It is further stated in the plaint that the plaintiff No,1 filed Succession Miscellaneous Application No,133 of 2001 for issuance of letter of administration in which particulars of the property bearing Shop/Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-e- Liaquat, Saddar, Karachi have also been disclosed and the said S.M.A. Was granted on 6-8-2001 but before completion of the formalities on the application of defendant No,1, further proceedings have not been undertaken in the said miscellaneous application. The plaintiffs alleged that the alleged gift deed is false and fabricated document, which does not bear the signature of the deceased and admitted signature of deceased appears on conveyance deed dated 13-6-1996, partnership deed, dated 1-7-1973 and letters dated 30-6-1993 and 30-7-1973, which the plaintiffs have produced along with the plaint as well as in their evidence, to compare signatures of the deceased on the allege gift deed with the admitted signatures on the aforesaid documents.
3. According to the plaintiffs the cause of action accrued to them in the first week of January, 2002 when defendants Nos.1 and 2 started claiming interest in the Shop/Room No,12 and Room No,21 in Sohail Mansion, 237-Sharah-e-Liaquat, Saddar, Karachi No,12 in which the business is being run by them and is continued day to day as well as cause of action accrued on 22-4-2002 when the plaintiffs started claiming the shop on the basis of allege gift executed by the deceased in favour of defendant No, 1 . The plaintiffs, therefore, prayed as under:-
(a) To declare that the document dated 15-5-1999 declaration and confirmation of oral gift in favour of defendant No,2 by late Zafaryab Khan is a forged document, null, void and of no legal effect;
(b) To declare that the plaintiffs and Samina Mansoor being legal heirs of late Zafaryab Khan are entitled to get the Shop/Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-eLiaquat, Saddar, Karachi mutated and or change of Rent Receipt in their names and the defendant No,3 is bound to mutate and or change the Rent Receipt in the name of the plaintiffs of Shop/Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-e-Liaquat, Saddar, Karachi according to law;
(c) To restrain the defendants from interfering with the peaceful possession of the plaintiffs of Shop/Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-e-Liaquat, Saddar, Karachi;
(d) To restrain the D3 from transferring changing and/or mutating Shops/Rooms Nos.12 and 21 to defendants or any other person except the plaintiffs and Mrs. Samina Mansoor jointly;
(e) Cost of the suit;
(f) Any other relief that this Honourable Court may deem fit in the circumstances of the case.
4. ' The defendants were served with the notice of the suit who appeared and defendants Nos.1 and 2 filed their separate written statements whereas defendant No,3, who is landlord of shops, in which the plaintiffs are running their business, has not defended suit.
5. ' The defendant No,2 Mustajab Khan, in his written statement has admitted the partnership in between all the three brothers in the disputed Shop/Room No,12 and Room No,21 in Sohail Mansion, 237, Shahrah-eLiaquat, Saddar, Karachi. He has also admitted the retirement of deceased Zafaryab Khan from the business of Messrs Paramount Radio Service vide deed of retirement dated 30-6- 1981 and induction of his wife Mrs. Talat Shereen as partner in the said business by deed of partnership, dated 1-7-1981 whereas the share of the partners were agreed as follows:- {{TABLE}}
(i) Mustajab Khan 34%
(ii) Aftab Khan 33%
(iii) Mrs. Talat Shereen 33% {{TABLE}} ' It is further stated in the written statement filed by defendant No,2 that the said partnership business was being run successfully by defendants Nos.1 and 2 and plaintiff No,3 upto 31st August, 2001 and net profit at the rate of Rs,40,000 was being earned out of the said partnership business.
6. On 1-9-2001 the plaintiff No,3 in collusion with plaintiffs Nos.1 and 2 forcibly took over the exclusive control of the said partnership business occupying the business premises Shop/Room No,12 and Room No,21 in Sohail Mansion, 237-Shahrah-e-Liaquat, Saddar, Karachi along with the articles lying there namely: T.V., V.C.R., V.C.P. Etc. Valued at Rs,2,70,000 and the plaintiff No,1 lodged a false F.I.R. It is further stated in the written statement by defendant No,2 that no declaration of confirmation of oral gift executed by deceased Zafaryab Khan during his life time in his favour or in favour of defendant No,
1. In para.9 of written statement, defendant No,2 specifically reiterated that no gift deed had ever been executed by deceased Zafaryab Khan either in his favour or in favour of defendant No,1 as alleged, as such para.10 of the plaint has not been set forth properly. Defendant No,2 has also made a claim of set-off, which is usefully quoted hereinbelow, for the sake of convenience:-- Profit not distributed since 1st September, 2001 by the plaintiff No,3 amongst the partners of Messrs Paramount Radio Service/House
(a) Profit earned @ Rs,40,000 p.m. From 1 September, 2001 to August, 2002 Rs,4,80,000
(b) Share of defendant No,2 @ 34% Rs,1,63,200
(c) Share of defendant No,1 @ 33% Rs,1,58,400
(d) Share of plaintiff No,3 @ 33% Rs, 1,58,400
(e) Share of defendant No,2 @ 34% pertaining to articles T.V., V.C.R., V.C.P., etc. Valued at Rs,2,70,000 Total claim of Defendant No,2 Rs,91,800
(i) Share of profit Rs,1,63,200
(ii) Share of investment in T.V., V.C.R., Rs,91,800 V.C.P. Total Rs,2,55,000 ' The defendant No,1 also filed his written statement, inter alia, stating therein that the suit as framed by the plaintiff is not maintainable in law and that no cause of action has accrued to the plaintiffs to file the present suit and the suit is hit under Order I, rule 10, C.P.C. And that the plaintiffs have no legal character or locus standi to file the present suit and that the suit is hit under sections 54 and 55 of the Specific Relief Act. He has not disputed the running of the business in the name of Messrs Paramount Radio Service in the disputed shops in partnership with his brothers deceased Zafaryab Khan and Mustajab Khan. He has also not denied the retirement of the deceased from the business and induction of deceased's wife Mrs. Talat Shereen as partner in the said business.
7. He has also alleged that the deceased had gifted out his business to him because of love and affection and services rendered by him to his brother Zafaryab Khan who reposed confidence in him, therefore, the plaintiffs have no right to claim in the shape of said business. According to him the said oral gift was executed on 15-5-1999. He further stated that the plaintiffs on 22-4-2001 had forcibly taken over the possession of the said building and lodged a false F.I.R. Against them. He further stated in his written statement that the plaintiff No,3 in fact was a sleeping partner while he was working/dominating the entire business, such business lasted up to 31st August, 2001 as suchst the question of taking over possession of the business by the plaintiffs, as stated in wrongful manner does not arise at all. He has not made any claim of set off as claimed by defendant No,2.
8. ' On pleading of the parties, the following issues were framed by the Court:--
(1) Whether the suit as framed is maintainable?
(2) Whether the plaintiff has any legal character or right to file instant suit?
(3) Whether the suit is barred under law?
(4) Whether late Zafaryab Khan retired from the partnership and the plaintiff No,2 was taken up as partner under deed dated 1st July, 1991, if under what terms and conditions?
(5) Whether the declaration and confirmation of oral gift deed, dated 15-5-1999 by late Zafaryab Khan in favour of the defendant No,1 is forged document and of no legal effect?
(6) Whether the counter-claim is maintainable?
(7) Whether the defendant No,2 was ousted from the partnership business by the plaintiff?
(8) Whether the plaintiffs are liable to the defendants Nos.2 and 3 in any sum, if, so to what amount?
(9) Whether partnership firm Paramount Radio Service between, deceased Zafaryab Khan, Aftab Khan and Mustajab Khan was dissolved at any time, if so, when and under what terms and conditions?
(10) What were the assets and property of the partnership business?
(11) Whether the plaintiffs are entitled being legal heirs of Zafaryab Khan for any share in the partnership business if so, what amount?
(12) To what relief, if any, the partners are entitled to?
9. ' After framing the issues, plaintiffs examined Imran Khan son of Zafaryab Khan, who filed his affidavit-in-evidence and has produced the photocopy of general power of attorney vide Exh.P.W.2, photocopies of rent receipts vide Exh.P.W.3 to P.W.25; photocopy of partnership deed, vide Exh.P.W.26; photocopy of illegible document vide Exh.P.W.27; photocopy of legal notice dated 10-12- 2002, vide Exh.P.W.28; and its reply vide Exh.P.W.29; photocopy of deed of dissolution of partnership vide Exh.P.W.30; photocopy of application to S.H.O. Artillery Maidan, vide Exh.P.W.31; photocopy of confirmation of oral gift vide Exh.P.W.32 along with its legible typed copy; photocopy of legal notice dated 23-4-2002 vide Exh.P.W.33; photocopy of conveyance deed vide Exh.P.W.34; photocopies of letters addressed by the deceased to Income Tax Officer, vide Exh.35 and Exh.36; photocopy of certificate of Registration of Firm, vide Exh.P.W.37. He was cross-examined at great length by the learned counsel for the defendants Nos.1 and 2. He has not examined any other witness in support of their case.
10. ' The defendant No,1 Aftab Khan filed his affidavit-in-evidence in support of his defence and filed photocopy of certificate issued by Karachi Electronics Dealers Association, vide Exh.D.1; photocopy of gift deed vide Exh.D.2; photocopy of his application under Order I, rule 10, C.P.C., in S.M.A. No,133 of 2001 vide Exh.D.3; as well as photocopy of C.M.A. No,1594 of 2002 vide Exh.D.4; photocopy of schedule of property, vide Exh.D.5; photocopy of Suit No,421 of 2005 Aftab Ahmed Khan v. Imran Khan and others, vide Exh.D.6. He has also been cross-examined by the counsel for the plaintiffs. He has also examined D.W. Muhammad Kamleen son of Muhammad Sulaheen, who filed his affidavit- in-evidence vide Exh.D.7 and D.W. Muhammad Tahir Qureshi son of Rahim Bux Qureshi, who filed his affidavit-in-evidence vide Exh.D.8, who both have been cross-examined by the learned counsel for the plaintiff. No other evidence has been led by the defendant, apart from these two D.Ws.
11. ' After recording of evidence in pro and contra to their respective contentions advanced by the parties I have heard Mr. Zain Jatoi, Advocate for the plaintiffs and Mr. Zahid Marghoob, Advocate for defendant No,l.
12. ' Mr. Zain Jatoi, Advocate for the plaintiff vehemently contended that the alleged gift deed dated 15-5-1999 is fake and fabricated document which has been prepared by defendant No,1 for wrongful gain and the deceased has not executed any such gift deed and that the alleged marginal witnesses of the gift deed have been set up by the defendant to strengthen his case. He further contended that the partnership in between the plaintiffs and defendants Nos.! And 2 came to an end and during the life time of the deceased Zafaryab Khan, he was retired from the business and by another deed his wife Mrs. Talat Shereen was inducted as partner in the business and subsequent to death of deceased, the partnership deed also came to an end, in view of a family settlement in between the parties. He further contended that defendant No,2 had also not supported the version of defendant No,1 regarding execution of gift deed by the deceased in favour of defendant No,1 and subsequently also the defendant No,2 Mustajab Khan did not contest the suit and withdrew it which also reflects on the case of the defendant No,l. According to him, his suit is not barred by any law and that the suit is very much maintainable. He further contended that defendant No,1 has not led any cogent convincing and plausible evidence in rebuttal to the claim of the plaintiffs as such the evidence led by the plaintiffs in support of their claim has not been refuted by defendant No,1 as such, there is no denial of the claim of the plaintiffs, through the evidence led by defendant No,1 as such the suit may kindly be decreed.
13. ' Mr. Zahid Marghob, Advocate for defendant No,1, vehemently contended that the plaintiffs filed S.M.A. No,133 of 2001 wherein they superessed correct fact about the shops in which the business is being run, being the property of the deceased, whereas the property in question was admittedly rented premises. He further contended that the deceased Zafaryab Khan during his life time had gifted the business to the defendant No,1 as a token of valuable services rendered by him to the deceased and that the plaintiffs have not sought the cancellation of the gift deed executed by the deceased in favour of defendant No,1 as such mere declaration of the gift deed will not suffice the matter. According to him the marginal witnesses of the gift deed have been examined by the defendant No,1 who both have fully supported the execution of gift deed executed by deceased Zafaryab Khan in favour of defendant No,1 and their evidence has not been disproved in their cross-examination. According to him the plaintiffs have forcibly occupied the business and shops in question and have also lodged a false F.I.R. Against the defendant and defendant No,1 also filed Suit No,421 of 2002, which is also pending adjudication before this Court. According to him the gift of the business by the deceased in favour of defendant No,1 has been fully established as such the suit is not maintainable on this score alone and is liable to be dismissed with costs.
14. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record. It will be appropriate to consider the respective contentions advanced by the learned counsel for the parties in the context of issues framed hereinabove. My findings on the above issues are, therefore, as under:-- ' Issues Nos.1, 2 and 3 ' The burden of proof of all these issues squarely lies on defendant No,1 to prove as to how the suit is not maintainable and the plaintiffs possess no legal character to file the present suit. The plaintiffs have alleged that deceased Zafaryab Khan was running the business in the name and style of Messrs Paramount Radio Service in the disputed shops wherein both the brothers namely Aftab Khan and Mustajab Khan were also partners and that the partnership came to an end during the life time of deceased in the year 1991 and the plaintiff No,3 was inducted as partner in the business of the deceased and that the deceased did net gitt the said business to defendant No,1 and the said fact was enlightened to them on 22-4-2002 when the defendants Nos.1 and 2 came to their shops and started shouting that the deceased had gifted the said business to them therefore, they have filed the present suit for declaration of gift after four days of their acquiring the knowledge of the same. The gift deed has not been disputed by the defendant No,1 allegedly executed by the deceased in his favour. The defendant No,2 in his written statement has also showed his ignorance about the execution of any gift deed by the deceased in favour of defendant No,
1. In such state of affairs, it has been established that even the plaintiffs were not in knowledge of existence of any gift deed allegedly executed by the predecessor-ininterest of the plaintiffs namely Zafaryab Khan in favour of defendant No,1 and defendant No,1 has all the valuable rights of challenge the said gift deed when it was surfaced at the behest of the defendant No, 1 . Learned counsel for the defendant No,1 has not cited any law to show that the suit as framed by the plaintiff is not maintainable and that they possessed any legal character or locus standi to maintain the present suit and that the suit is barred under the law of Specific Relief Act. All the issues are, therefore, answered in negative.
15. ' Issues Nos.4, 9 and 10 ' Since all the issues are interlinked with each other and evidence is also common, as such I propose to discuss on these issues, simultaneously.
16. ' The plaintiffs have alleged that the deceased Zafaryab Khan was running the business under the name of Messrs Paramount Radio Service wherein defendants Nos.1 and 2 were also partners and the said partnership came to an end in the year, 1981 when the deceased was retired from the partnership and his wife, plaintiff No,3 was inducted as partner and after the death of deceased on 21-4-2002 in a family gathering, defendants Nos.1 and 2 amicably settled the matter and they agreed that they will not claim any right or interest in the shops in dispute. Both the defendants have refuted the said assertion in their respective written statements filed by them separately. P.W.
17. Imran Khan in his affidavit-in-evidence at page 3, has stated as under:- "However, on 21-4-2002 at a family gathering the defendants Nos.1 and 2 amicably settled the matter and defendants Nos.1 and 2 agreed that they will not claim any right and/or interest in the Shops/Rooms Nos.12 and 21, Sohail Mansion, 237-Shahrahe-Liaquat, Sadder, Karachi."
18. ' The said specific assertion of the plaintiff has not been challenged by both the defendants in their lengthy cross-examination conducted on him. The said assertion of the plaintiff in his evidence, therefore, remain unrbuttal. The defendant No,2 has subsequently not contested the suit and withdrew it and the defendant No,1 who contested the suit, in his affidavit-in-evidence has not controverted the said piece of evidence alleged by the plaintiff. Since the claim of the plaintiffs that on 21-4-2002 both the defendants amicably settled the dispute in family gathering thereby relinquishing themselves not to claim any right or interest in the said business remains unrebutted.
19. The claim of the plaintiffs that their predecessor-in-interest was running the business in the shops in the name of Messrs Paramount Radio Service is, therefore, admitted by the defendants and dissolution of the partnership firstly in the year 1981 when the deceased Zafaryab Khan retired from the partnership and inducted the plaintiff No,3 as a partner in the business, has not been refuted by the defendants and their assertion, as referred to above, has not been disproved by the defendant No,1 as such it has been established that the partnership in between them came to an end on 21-4- 2002. The defendants have not led any evidence to show that what were the assets lying in the shops at the alleged time of dissolution of partnership and in fact the evidence of either party is completely silent with regard to the assets and the property of the partnership business. Further, it is not disputed that the partnership business was being run in a rented premises, owned by the defendant No,3. The Issues Nos.4 and 9 are replied in affirmative and Issue No,10 has not been proved for want of sufficient evidence.
20. ' Issue No,5 ' This issue crux of the litigation in between both the parties. The defendants claim that deceased Zafaryab Khan executed gift deed in his favour on 15-5-1999 which has been disputed by the plaintiffs and their claim that the said gift came to their knowledge on 21-4-2002 when the defendants Nos.1 and 2 came at their shops and showed the said gift deed to them as well as to the defendant No,3, to whom they both have supplied a photocopy of the gift deed but the defendant No,3 did not change the receipts in their favour. It is pertinent to note that the parties have alleged that they were jointly running the business and have certain specific shares amongst the proceeds of the said business. Admittedly the deceased Zafaryab Khan was retired from the partnership in the year 1981 and his wife Mrs. Talat Shereen was inducted as partner in the year 1989 and the said partnership continued, till the death of the deceased. The said assertion contained in the plaint has not been disputed by both the defendants as such it is evident from the pleadings of the parties that deceased Zafaryab Khan was no more partner of this business in question and a person who is no more partner of the business or owner of the property could not make gift of the said in favour of anyone. The heavy duty cost upon the defendant, who alleged the execution of gift by the deceased Zafaryab Khan in his favour, to establish that the said gift was actually executed by the deceased in his favour. The defendant No,1 has not disputed retirement of the deceased from the business in the year 1981 as such question arise as to how a person who was no more partner in the business could gift it to defendant No,1 after the lapse of about 19 years viz. In the year 1999 when allegedly gift deed was executed on 15-5-1999 in favour of defendant No,1, even otherwise a perusal of the gift deed shows that deceased Zafaryab Khan declared himself to be the exclusive, rightful and lawful proprietor of business and trade under the name and style as Messrs Paramount Radio Service, situated in Shops/Rooms Nos.12 and 21, Sohail Mansion, 237-Shahrah-e-Liaquat, Saddar, Karachi and in para.4 of the gift deed he out of love and affection and to avoid future complications and litigation, gifted out the said business and property to defendant No,1. The said alleged assertion, in declaration of oral gift, Exh.D.2, is much against the spirit of alleged partnership in between the parties as according to the partnership, the plaintiff No,3, defendants' Nos.1 and 2 were the partners of the said business and the deceased who neither was a partner of the business nor proprietor of the business nor owner of the property in which business was being run as such his declaration of gift was beyond his own powers/rights.
21. The defendant No,1 in his affidavit has alleged about the execution of the gift by the deceased in his favour and has also examined the marginal witnesses of the alleged gift D.2 namely; Muhammad Kamleen and Muhammad Tahir Qureshi and they both in their cross-examination have admitted that they are friends of defendant No,1 and they had seen the deceased Zafaryab Khan but they did not know about his family. They both have admitted in their cross-examination that they know defendant No,1 since last 40 years as well as to his family. In case, if they both are old friends of defendant No,1 and claim to know their family, they must aware about the deceased and his family also. They both have also admitted that they rarely used to .Visit the shops where the defendant No,1 used to sit and deceased executed oral gift in his favour. The question arises that the deceased did not know both these marginal witnesses properly, how he will execute such gift deed, in presence of these witnesses to whom he do not know very well. In case the intention of deceased Zafaryab Khan was to gift the business, it was very easy for him to make such declaration in presence of his close relatives and well-wishers. The evidence of both the marginal witnesses seems to have been set up by the defendant.
22. ' A perusal of the affidavit-in-evidence filed by defendant No,1 shows that he has reiterated the contents of para.1 to para.17 from the plaint of his Suit No,421 of 2005 Aftab Khan v. Imran Khan and others which shows that assertion made by the plaintiff in his plaint as well as the assertion of the witnesses of the plaintiff namely Imran Khan in his affidavit-in-evidence remain uncontroverted by defendant No,1 as reproduction of the contents of Suit No,421 of 2005 verbatim in affidavit-in- evidence in the present suit is quite contrary to the averments contained in the present suit as well as in the affidavit-in-evidence of P.W. Imran Khan. Since the affidavit-in-evidence of the defendant No,1 is completely silent with regard to rebuttal of the claim of plaintiff contained in the present suit as such it has been established that the claim of the plaintiffs remains uncontroverted by the defendant No,1 and since the evidence led by the plaintiff as well as the contents of the plaint remain uncontroverted in affidavit-in-evidence of defendant No,1, as such, it tantamount to acceptance of whole claim of the plaintiff by the defendant No,1 in view of Article 133 of Qanun-e- Shahadat Order, 1984. The assertion made by the witness in examination-in-chief not controverted in cross-examination or where the fact stated by one party remains unchallenged in cross- examination, the same amounts to admission on the part of the other party. In case 'any authority is needed, reference may be had to the cases of Mst. Farooq Bibi v. Abdul Khaliq reported in 1999 CLC 1358, Central Bank of India v. Syed Muhamamd Abdul Jalil Shah and others reported in 1990 CLC 671 and Muhammad Akhtar v. Manna and others reported in 2001 SCM R 1700.
23. ' In view of the aforesaid circumstances, it appears that defendant No,1 has not disputed the evidence led by Imran Khan, in his affidavitin-evidence and all the contents of affidavit-in- evidence of defendant No,1 are the replica to his Suit No,421 of 2005 as such the claim of the plaintiff remains unrebutted. There is, therefore, sufficient evidence available on record to adjudge the alleged oral gift, Exh.D.2, allegedly executed by the deceased Zafaryab Khan in favour of the defendant as illegal. The point is, therefore, answered in affirmative and it is declared that alleged gift deed, dated 15-5-1999, Exh.D.2 is fake, fallacious, fabricated document, having no legal sanctity and legal effect against the plaintiffs.
24. ' Issues Nos.6, 7 and 8 ' All these issues have been framed at the instance of defendant who subsequently has withdrawn his claim, vide order of this Court dated 4-4-2006, which is usefully quoted hereinbelow, for the sake of convenience.:-- "Defendant No,2 Mustafa Ali Khan is present in person, has filed the listed application (C.M.A.
25. No,2356 of 2006), under Order XXIII, rule 1, C.P.C. Seeking to withdraw the counterclaim made against the plaintiffs unconditionally. It is stated that defendant No,2 proceeding abroad will not be contesting the suit. It is stated that defendant No,2 withdrew from the claim in respect of the shop under the purported gift deed dated 15-5-1999. There appears to be no impediment to the grant of listed application. Defendant No,2 has produced the original National Identity Card and a copy of the same is retained and -acknowledgment of signature on the affidavit in support of the application. Accordingly, the application is allowed and the counter-claim is disposed as withdrawn with no order as to costs."
26. ' In view of the aforesaid circumstances, all these issues have, therefore, become redundant.
27. ' Issues Nos.11 and 12 ' In view of my findings on the aforesaid issues, I am of the opinion that the plaintiffs are entitled to have a decree in their favour. The suit is, therefore, decreed, as prayed, with no order as to costs.