' MIAN HAMID FAROOQ, J.--- This direct appeal, under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, proceeded against judgment dated 8-3-2002, whereby the learned Lahore High Court at Lahore passed a preliminary decree in respect of the property of Meraj Din mentioned in para.2 of the plaint, while suit regarding the property of Muhammad Tufail (mentioned in para.3 of the plaint) was dismissed.
2. Facts of the case capitulated in the impugned judgment are reproduced below:--- "On 24-4-1989, respondent No,1 filed a suit against the petitioner and the other respondents. In her plaint, she stated that Meraj Din was the owner of the property mentioned in para.2 of the plaint; that the said Meraj Din died on 31-10-1976 and was survived by respondent No,1 as daughter and Muhammad Tufail as son; that there was pre-deceased daughter, namely, Surraya Begum whose children are present respondents Nos.7 to 10; that Muhammad Tufail died after the death of his father on 25-6-1987 and was survived by two widows i,e, the petitioner and respondent No,2 and respondents Nos.3 to 5, the brothers of the said Meraj Din. In para.3 of the plaint it was mentioned that the said Muhammad Tufail was the owner of a house mentioned in the said para. Of the plaint and on his death it devolved upon the said two widows, the respondent No,1 and the said respondents Nos.4 and 5. With these averments, she sought a decree for a separate possession for partition of her share in the said properties mentioned in paras.2 and 3 of the plaint, respectively.
The suit was contested only by the petitioner. She admitted the averments made in the plaint regarding the house owned by Meraj Din mentioned in para.2 of the plaint. However, in reply to para.3 she stated that the plot underneath the house of Tufail was given to him by Muhammad Hafeez, a brother of the petitioner, thereafter it was filled up by her father; that Tufail gifted away the plot to her on 25-2-1986 by means of written document and that she accepted the gift; that at the time of gift there were only two in-complete rooms and a verandah on the said plot; that after the, delivery of the possession it was she who completed the construction and added a kitchen, stair case and a bathroom. She, therefore, prayed for dismissal of the suit regarding the property mentioned in para.3 of the plaint and made a prayer that her share in the said property mentioned in para.2 of the plaint be given to her. Following issues were framed by the learned Trial Court:--
(1) Whether defendant No,6 is necessary party to the suit and the suit is bad for non-joinder of parties? OPD.
(2) Whether property i,e, House No,29 Gali No,89, Pir Ghazi Road, Ichhara Lahore also owned by Muhammad Tufail, deceased? OPP.
(3) Whether suit is incorrectly valued; if so, what is correct valuation and with what effect? OPD.
(4) Whether House comprising of Khasra No,8853 measuring 5 Marlas was gifted to defendant No,1 and she has raised construction thereon by spending a sum of Rs,1,50,000; if so, its effect? OPD.
(5) Whether plaintiff is entitled to the decree for partition; if so, what are the shares of the parties?
OPP.
(6) Relief."
' Evidence of the parties was recorded. The learned trial Court, vide judgment and decree dated 21- 9-1995 proceeded to pass the preliminary decree in respect of both the said properties. Feeling aggrieved the petitioner filed a first appeal questioning the validity of the preliminary decree vis-a- vis the said property mentioned in para.3 of the plaint and also fixation of the share. The learned Additional District Judge mentioned the shares of the parties in his judgment but otherwise proceeded to dismiss the appeal on 8-9-2000."
' Respondents' second appeal (R.S.A. No,109 of 2000) was, however, allowed by the learned Lahore High Court at Lahore, vide impugned judgment dated 8-3-2002, in the following manner:--- "To my mind, this is a case of gross misreading of evidence on record by the learned Courts below.
The impugned judgments and decrees therefore, cannot be sustained in this R.S.A. The same is accordingly allowed. The judgments and decrees of both the learned Courts below are set aside and preliminary decree is passed as follows in respect of the property of Meraj Din, mentioned in para.2 of the plaint-
(1) Shamim Akhter, plaintiff.1/2
(2) Rasheeda Bibi, widow.1/16
(3) Riaz Begum, widow.1/16
(4) Defendants Nos.7 to 10 (children of Surraya Begum, pre-deceased daughter)1/4
(5) Defendants Nos.3 to 5, Collaterals.1/8 ' The suit regarding property of Tufail mentioned in para.3 of the plaint is dismissed."
' Hence, the present appeal.
3. Learned counsel for the appellant contended that respondent No,1 could not prove gift deed and two Courts concurrently held that the gift-deed was a forged and void document; that affirmative evidence led by the appellant was sufficient to rebut the evidence produced by respondent No,1 and to hold that gift deed was a forged document; that inheritance Mutation No,769 dated 31-5- 1988 was not challenged by respondent No,1 and therefore, appellant's suit qua the property left by Muhammad Tufail could not be dismissed. Reliance was placed on Muhammad Aslam v. Khuda Dad 1982 SCM R 511 and Ghulam Muhammad v. Ghulam Rasool 2002 CLC 620. He further submitted that the learned High Court grossly misread the evidence on record, inasmuch as, the statement of D.W.6 was completely ignored. He added that in fact regular second appeal before the learned High. Court was not maintainable. Learned counsel for the respondents, on the other hand, submitted that. Rasheeda Bibi, respondent No,1, proved the gift deed. (Exh.D/1) by producing sufficient evidence D.W.1 to D.W.5, who consistently stated that Muhammad Tufail gifted the house in favour of said respondent.
4. We have heard the learned counsel for the parties and examined the available record. The appellant filed a composite suit claiming her share from two houses, one owned by Meraj Din House No,25, Gali No,14, Malik' Muhammad Din Street, Qila Gujjar Singh, Lahore measuring 4 Marlas (being his daughter) and the other owned by Muhammad Tufail (House comprising of Khasra No,2853 Khatooni No,571, Khewat No,187, Mauza Ichhra, Lahore constructed on 5 Marlas of land) (in the capacity of his sister, as Muhammad Tufail died issueless). Respondent No,1 in his written statement claimed that the plot was "given" to Muhammad Tufail by his real brother namely Muhammad Hafiz and thereafter Muhammad Tufail, on 25-2-1986, gifted the said plot to her, vide a written gift deed and thereafter she constructed kitchen, Staircase, Bathroom and renovated the Verandah as well as two rooms by incurring a sum of Rs,1,50,000. Although the learned trial Court framed five issues, yet for the purposes of resolving the present controversy Issue No,4 was relevant, onus of which was upon the defendant/respondent namely Rasheeda Bibi, who claimed that the house was gifted to her by her deceased husband namely Muhammad Tufail. Obviously the said gift was denied by the other party, therefore, respondent No,1, was under an obligation to prove that the gift was validly made and Muhammad Tufail executed the gift-deed Exh.D/1 in her favour. In support of her case, respondent No,1,' produced five witnesses (D. W.1 to D.W.5), which were duly discussed, referred to and rightly appraised by the learned High Court in para.5 of the impugned judgment. It may be noted that respondent No,1 produced the scribe and the attesting witnesses of the document, whose statements could not be discredited. The learned High Court after overhauling the entire evidence produced by respondent No,1 and the appellant in a threadbare manner rightly concluded that the findings of both the Courts on Issue No,4 were result of misreading of evidence and that respondent No,1 proved gift and execution of gift-deed. It may be noted that the appellant in order to rebut the said voluminous evidence produced by respondent No,1 did not adduce even a single witness, thus the conclusion would be that respondent's witnesses went un-rebutted and she proved the execution of gift deed. Now coming to the question as to whether the affirmative evidence produced by the appellant was sufficient to annul respondent's evidence, as canvassed by learned counsel. The appellant produced one witness (P.W.1), who did not state anything about the gift, execution of gift deed and that Muhammad Tufail did not gift the said house to Rasheeda Bibi or gift deed was a forged document, inasmuch as, the appellant when herself appeared as P.W.2 did not state even a single word about the gift and that Muhammad Tufail did not gift the property to respondent No,1 or/and the gift deed was a forged document. On the other hand, a very apt suggestion was put to the appellant in her cross-examination that Muhammad Tufail in his life time gifted the property to Rasheeda Bibi, who obtained the possession of the house under the gift. The learned High Court after evaluating the evidence of the parties on issue No,4 rightly held that both the Courts misread the evidence on record, while holding that respondent No,1 could not prove the factum of gift. In view of the evidence of the parties, as noted above, the only conclusion, which could be drawn, is that the evidence produced by respondent No,1 went un-rebutted and that she successfully proved issue No,4.
5. As regards non-challenging of Mutation No,769, suffice it to say that no suggestion was put to any of the respondent's witnesses to the effect that inheritance Mutation No,769 was attested in favour of legal heirs of Muhammad Tufail, inasmuch as, no such suggestion was even put to Rasheeda Bibi, when she appeared as D.W.S. On the other hand, a specific suggestion was put to Shamim Akhtar, the appellant, when she appeared as P.W.4 that Exh.P.W.2/5 (Mutation No,769) is a forged document and that it was not with regard to the transfer of House No,29. Furthermore, the appellant did not produce sufficient evidence to prove that Exh.P.W.2/5 was a genuine document, inasmuch as, and neither the record was summoned nor any witness from the revenue department was summoned to prove the veracity and legality of Exh.P.W.2/5.
6. Adverting to the next contention regarding non-maintainability of the second appeal before the learned High Court. The appellant contested the said appeal, but no objection was raised by her before the learned High Court with respect to the competency of appeal. The appellant has raised the objection for the first time before this Court. The appellant by not raising the said plea before the leaned High Court, in fact, acquiesced over the said objection and that ground deemed to have been waived of by her, therefore, now she is estopped to urge the said plea before this Court.
7. As regards the plea of misreading and non-reading of the evidence on record. It may be noted that the learned High Court discussed each and every witness produced by the parties, as noted above, and then held that both the judgments are result of misreading and non-reading of the record of the case. No glaring misreading and non-reading of evidence was pointed out by the learned counsel. In the said perspective, we have examined the impugned judgment and find that the learned High Court, while accepting respondents' appeal did not commit any illegality.
8. In view of the above, the present appeal, being devoid of any merits, stands dismissed leaving the parties to bear their own costs.