' MAULVI ANWARUL HAQ, J.---On 6-6-1991 the petitioner filed a suit against the respondent. In the plaint it was stated that he is elder brother of the respondent and there are two other brothers as well. All are married and have issues. House mentioned in the plaint was transferred to the petitioner. The father of the parties owned another house No, 151-A which was not sufficient for the residence of the family. He asked the respondent to take up residence in the said house and himself shifted to the suit house. The said house No, 151-A has been sold by the father of the parties and possession was delivered to the vendee. He requested for vacation of the suit house whereupon the father suggested that another House No, P.739 will be reconstructed and thereafter possession will be delivered. He then stated that the respondent has fraudulently forged a gift deed in respect of the suit house, whereas he never made a gift in favour of the respondent and never delivered the possession. According to him the respondent never served him. He has his own children and is running his own business. He never executed any gift deed. With these averments he sought declaration that the registered gift deed, dated 16-10-1986 to be declared illegal and void and possession of the house be delivered. The respondent in his written statement pleaded valid gift in his favour. According to him in lieu of the gift he received consideration of house No, 151-A. Following issues were framed by the learned trial Court.
(1) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(2) Whether the suit is not maintainable? OPD.
(3) Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction? OPD
(4) Whether the suit is time barred? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the gift deed No, 14224, dated 16-10-1986 is result of fraud and as such is liable to be cancelled? OPD (6-A) Whether the suit of the plaintiff is hit by Order II, Rule 2 and Section-10 as well as 11 CPC? OPD.
(6-B) If issue No, 6 is proved, whether the plaintiff is entitled for the possession of the disputed house? OPP.
(7). Relief.
Evidence of the parties was recorded. Vide judgment and decree, dated 8-12-1994 the suit was decreed. A first appeal filed by the B respondent was allowed by a learned District Judge, Faisalabad, on 23-5-2007, who dismissed the suit of the petitioner.
2. Learned counsel for the petitioner contends that there is not even an iota of evidence on record in support of the gift so much so the original gift was never produced. Learned counsel for the respondent, on the other hand, contends that notwithstanding the insufficient evidence, the suit was liable to be dismissed being barred by Order II, Rule 2, C.P.C. And also being barred by time.
3. I have gone through the copies of the record with the assistance of the learned counsel for the parties. As noted by me above, I do find that the gift deed was not produced. A copy thereof was produced by the petitioner as Ex. PI. Muhammad Jameel one of the stated attested witnesses appeared as PW-1 and stated that no gift was ever made. The other witnesses is Jan Muhammad the father of the parties who appeared as DW-2. I may note here that learned District Judge has been influenced by the statement of the said Jan Muhammad DW-2. He has discussed his evidence in para-10 of the judgment. He observed that the said witness has admitted his signatures upon Exh.P-1 and has deposed that it was duly executed by the present petitioner.
4. I have examined the statement of the D.W.2 and I find that not a single word has been uttered by him regarding the gift deed or its execution by the respondent.
5. I, therefore, do find that there is no evidence on record in support of the fact that the suit house validly gifted by the petitioner to the respondent.
6. Coming to the said contention of the learned counsel for the respondent. So far as the objection as to Order II, Rule 2, C.P.C. Is concerned, it is true that a suit was filed on 6-6-1991. The plaint is Ex.DI.
It was for a declaration regarding the gift along with the prayer for injunction. The present suit was filed on 6-6-1991 while the said suit was withdrawn on 13-6-1991. To my mind, objection of the learned counsel is squarely answered in the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344). So far as the question of limitation is concerned, the same does not arise at all for the simple reason that whereas the petitioner has denied making any gift, conversely there is E no evidence on record in support of plea that the valid gift was made by the petitioner in favour of the respondent. The suit is for possession and as such rule laid down in the case of Ali Muhammad and others v. Qaisar Mehmood Shah and others (1991 SCM R 1114) would be applicable.
7. Having, thus, examined the record, I do find that the learned District Judge has, acted with material irregularity in exercise of his jurisdiction while proceeding to record findings without there being any evidence on record as to gift. Civil revision is accordingly allowed and the impugned judgment and decree, dated 23-5-2007 of the learned District Judge, Faisalabad is set aside while one passed by F the learned trial Court on 8-12-1994 decreeing the suit of the petitioner is restored with costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.