' MAULVI ANWARUL HAQ, J.---On 23-2-1998 Mst. Fatima Bibi the late mother of the respondent (hereinafter to be referred to as the plaintiff) filed a suit against the petitioners. In the plaint, it was stated that the suit land mentioned in para-1 of the plaint being 1/3rd of the total joint holding measuring 891 kanals is owned by the plaintiff and she is in possession through her son Imtiaz Ahmad. The petitioners have got nothing to do with the suit-land. One month ago, in order to apply for a loan she contacted the Patwari to obtain the revenue documents when it disclosed that they have got the land transferred in their favour on the basis of a registered gift deed dated 3-1-1977.
She denied having made any gift to the petitioners or to have executed the document. Some incorrect facts stated in the gift deed were also pointed out. It was mentioned that she has no child whereas she has a son who is alive and is looking after her. She accordingly sought a declaration and a permanent injunction restraining the petitioners from interfering with her possession. Later the plaint was amended with the leave of court and relief of possession was sought with the plea that she has been dispossessed during the pendency of the suit. The petitioners in their written statement objected that the suit is barred by time. They pleaded that the plaintiff is their paternal aunt and out of love and affection she gifted the land and has executed the registered document.
It was further stated that since the son of the plaintiff was disobedient and was living separately and was not treating her properly, she had stopped meeting him. Regarding possession, it was stated that they are in possession under the gift. Issues were framed. Evidence of the parties was recorded. The learned trial court decreed the suit on 12-3-2003. A learned ADJ, Sheikhupura, dismissed the first appeal on 4-10-2004.
2. Learned counsel for the petitioners vehemently urges that the suit having been brought on 23-2- 1998 to challenge a gift made on 3-1-1977 was barred by time and the learned courts below have acted without jurisdiction while decreeing the suit. According to the learned counsel, notwithstanding the fact that the execution of the gift deed has not been proved, the evidence led to prove an oral gift which is permissible under the Islamic Law has been ignored by the learned courts below. He also urges that there is no evidence that the plaintiff was either in possession through her son or she was in receipt of the produce share and the learned ADJ has acted without lawful authority while proceeding to condone the delay in the filing of the suit on the ground that the .Plaintiff had been in receipt of the share produce. In the matter of limitation, primary reliance has been placed on the case of Ata Muhammad v. Maula Bakhsh and other (NLR 2000 SCJ 147)
(sic) in which judgment several earlier judgments of the Hon'ble Supreme Court of Pakistan have also been relied. According to him, the beneficiaries ought to have been given permission to get the signatures or thumb marked compared. Further contention is that non-appearance of the plaintiff in the witness box in the circumstances of the case is fatal. He relies on the case of Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCM R 137 while refers to the case of Binvameen and 3 others v. Chaudhry Hakim and another (1996 SCM R 336) in support of the plea that a party cannot be allowed to lead evidence in respect of a plea not taken in the pleadings. Learned counsel for the respondent supports the impugned judgments and decrees. According to them, it is not a case where there was doubt about the title of the plaintiff and the onus was squarely upon the petitioners to prove a valid execution of the gift deed by the plaintiff-lady. They point out to, the document itself to urge that wrong facts were mentioned therein. Further contention is that this was a case of admitted co-heirs or co-sharers and the possession was not relevant at all either for the purpose of the maintainability of the suit or to settle the question of possession.
3. I have examined the copies of the records, with the assistance of the learned counsel for the parties, in the light of the respective submissions made above. The material contents of the pleadings have already been stated above. The gift deed dated 3-1-1977 is Exh.D.1. At the very beginning of the document, it is stated that it is a gift in favour of lawful heirs. The preamble narrates that since there is no male child A of the donor and the petitioners are her brother's sons and serving her well and she apprehend that after her death, some dispute may not arise regarding her inheritance, she is making the gift in their favour. In view of the admitted facts that the lady has a son, the said statements made in the document are patently false. There is no question of the petitioners being the legal heirs of the lady at the time of execution of the document and a son being there, there was no question of any dispute to arise in case of her death. Be that as it may, document is purported to be thumb-marked by Fatima Bibi plaintiff and attested by Muhammad Din son of Ibrahim and Abdul Rahim, Lambardar, Hinjranwala, Tehsil Sheuikhupura (the lady is stated to be resident of the revenue estate of Laveray, Tehsil. Hafizabad and the suit-land is located in Ajnayanwala, Tehsil Sheikhupura). The document bears the stamp and register number of a Wasiqa Navees. The said Lambardar was not produced and the learned counsel explains that he died by the time the evidence commenced. Muhammad Din appeared as DW-1 and stated that Fatima Bibi had put her thumb-impressions on the document (Ex.D.1) which is attested by him. In his cross-examination, he stated that he is operating a Photostat Machine near the Gate of the Tehsil Office and at the time he attested the document he was working with Anwar Shah, Scribe. He expressed ignorance as to how many brothers and sisters Fatima Bibi had. He did not know the name of the father or husband of Fatima Bibi. When confronted he stated that in the family of Fatima Bibi her brother Allah Bakhsh and nephews i,e, the petitioners are known to him. He stated that he did not know Fatima Bibi before the writing of Exh.D.1 and she has never met him after the writing of the said document. He stated that Abdul Rahim, Lambardar, had identified Fatima Bibi. He admitted that Abdul Rahim is the Lambardar of Hinjranwala and belongs to Arian family while Fatima Bibi is from Ajnayanwala and belongs to Jat Gru tribe. He could not say as to how Fatima Bibi was known to Abdul Rahim. He admitted that the document has not been attested by any person from the village of Fatima Bibi. He admitted that the NIC of Fatima Bibi was not seen neither any inquiry was made in this behalf. Finally, he admitted that he did not know Fatima Bibi and signed Exh.D.1 upon the asking of Maqbool petitioner and since he does not know Fatima Bibi he is not aware as to who was the woman who was presented before the Sub-Registrar.
4. Muhammad Anwar son of Inayat Ullah is D.W.2. He stated that the stamp papers of Exh.D.1 were sold by him to Fatima Bibi. He then scribed the document upon her asking and read over the document to her whereafter she put her thumb impressions. In cross-examination, he admitted that a note that the document has been read over to the lady has not been made in Exh.D.1. He did not have a license to scribe documents. When asked about the register, he stated that he had misplaced the same. He also did not bring the stamp vending register. He then admitted that he did not know the parties. He also admitted that he had not asked for the NIC of Fatima Bibi neither did he mention the number in the document. According to him, Fatima Bibi was accompanied by his brother and nephews. He did not know the name of the brother. He was confronted with the document and he admitted that he has written in Ex.D.1 that Fatima Bibi has no male child. He stated that the other witness was Muhammad Din who used to work with him. He had not asked Abdul Rahim, Lambardar, as to how he knew Fatima Bibi. Maqbool Hussain petitioner appeared as D.W.6. He stated that on 2-1-1977 the plaintiff made an oral gift and delivered possession and that at that time Allah Bakhsh and Fatima were present along with Younas and Akram. On 3-1-1977 Fatima Bibi purchased the stamps and got the gift deed (Exh.D.1) written and then she thumb- marked. He also stated that Abdul Rahim, Lambardar, had died 16 years ago. In his cross- examination, he admitted that Imtiaz aged 50 years is the son of Fatima Bibi plaintiff. He was confronted with the gift deed and he stated that it was written that Imtiaz is disobedient and is not the son of the plaintiff-lady. According to him, they were sitting in their house and Fatima Bibi had come to visit them. Younas had come for water while Akram had come to claim the money for some clothes. He was not aware as to when the husband of Fatima Bibi died. Regarding Muhammad Din he stated that he was sitting with the Scribe. He admitted that the plaintiff used to live with her husband in Lovarian. According to him, the report regarding delivery of possession was not made to the Patwari. He admitted that Fatima Bibi is not well since 2/3 years and cannot move.
She had come alone to their house and Imtiaz was not with her. He admitted that since the death of her husband, Fatima Bibi is living with her son Imtiaz. He opined that Fatima Bibi must be looked after by her son.
5. This is the entire evidence pertaining to the execution of the gift deed. To my mind, the learned courts below cannot be said to have misread or failed to read the evidence while holding that the execution of the gift deed by the plaintiff-lady has not been proved.
6. So far as the evidence regarding oral gift is concerned, learned counsel has himself pressed the rule of secundum allegata et probata with reference to contention qua receipt of produce share.
The petitioners have not at all pleaded an oral gift. They have stated in response to para-2 of the plaint that the lady made a gift in favour of the petitioner through the said gift deed executed by her on 3-1-1977 and was delivered possession. Be that as it may, I have examined the statements of Muhammad Akram D.W.3 and Muhammad Younas D.W.4. Both of them have made identical statements that the deceased-lady had made a gift in favour of the petitioners on 2-1-1977 and delivered possession. In their cross-examination, they stated that ever-since Fatima Bibi got married she was residing in village Lovaray, Tehsil Hafizabad. She was married to Ghulam Nabi and had only one son, namely, Imtiaz. She used to live with her husband and then with her son. She stated that her husband has contracted another marriage and her son is an addict and that she is afraid that he will waste the land. They had not asked Fatima Bibi the nature of the addiction. He admitted that Imtiaz is the real son of Fatima Bibi and ever-since her husband had contracted the other marriage, she is living with Imtiaz who is looking after her. They have admitted that Imtiaz is also looking after his own property in village Lovarian. Allah Bakhsh is D.W.5. He is the father of the petitioners. Having, thus, examined the entire evidence, the execution of the gift deed has not been proved and so is the case with the un-pleaded oral gift. The reasons pleaded for the gift by the lady, whose husband as admittedly died before the gift and who was living with her only son, have not at all been proved rather stand disproved in the statements of D.Ws. Themselves.
7. Coming to the said contentions of the learned counsel, it is true that the observation made in the said case of Atta Muhammad being relied upon by the learned counsel for the petitioners on the question of limitation do go to support the said contention of the learned counsel. However, in all humility, I may state that the relevant observations are with reference to the distinctive facts of the said case repeatedly referred to by their lordships in the said judgment. The case filed by the plaintiff was found to be false in its inception and the judgment proceeded accordingly. The case pertained to an inheritance mutation. This Court had held that, of course with reference to a judgment of the honourable Supreme Court that in cases of inheritance limitation would not be relevant. However, their lordships found as a fact that the plaintiffs were not the heirs of the last owner and were found to be strangers and the rule applicable in case of joint lands vis-a-vis possession was held to be not applicable.
8. In the present case, subject matter of the gift forms 1/3r.d of a joint estate, which devolved upon Fatima Bibi and her brother Allah Bakhsh, the father of the petitioners. In the copy of Register Haqdaran Zamin for the year 1968-69 (Exh.P.2) at a point of time before the registration of the gift deed both the brother and sister are recorded in the column of ownership and most of the land is recorded to be in possession of the said co-sharers while remaining land is recorded to be cultivated by non-occupancy tenants. In copy of Register Haqdaran Zamin for the year 1990-91 most of the land is recorded to be in possession of Allah Bakhsh as a co-sharer while remaining land is recorded to be in possession of tenants under one or other of the petitioners who were substituted in the column of ownership by Fatima Bibi. Similar is the case with the Khasra Girdawari.
The rule laid down in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) is squarely applicable i,e, mere non-participation in the profits would not constitute ouster of a co-sharer or a co-heir.
9. So far as the non-production of Mst. Fatima Bibi is concerned, it has come on record in the statements of the D. Ws. Themselves that she was very ill during the relevant period and was unable to move. Besides I find that the son and attorney of the deceased-lady had answered all the relevant questions in the cross-examination.
10. As to the question of comparison of thumb-impression, the available evidence having been produced and duly considered it was not obligatory upon the courts below to have ordered the same. Besides in the attending circumstances of the case apparently on the face of record it was not at all necessary to refer the matter to an expert.
11. Regarding the inconsistent pleas in the plaint and the oral evidence led by the plaintiff-lady, I do agree with the learned counsel that first it was stated that the possession is with the son of the lady and thereafter the plaint was amended to include the relief of possession. I may note here that the evidence was led accordingly. Somehow or the other the learned ADJ came to observe in his impugned judgment that she had been in receipt of the produce. However, the matter is to be considered in the light of over all evidence on the record. I have already referred to the Revenue Records above produced by both the parties. The lady herself was not in exclusive possession. The Khata being jointly owned by the brother and the sister and there was no question of her delivering the possession to the petitioners. In this view of the matter, nothing turns on the said inconsistency.
The fact remains that the plaintiff-lady was a co-heir/co-sharer and in the absence of proof of any valid gift having been made by her, she will be deemed to be in joint possession of the admittedly joint land.
12. Having, thus, examined the records, I do not find any grounds being made out to interfere with the ultimate conclusions arrived at by the learned courts below upon a proper reading of the evidence on the record. The civil revision accordingly is dismissed. However, no orders as to costs.