'ABDUL SATTAR GORAYA, J.--- This appeal calls-in-question the judgment and decree dated 7-10- 2006 passed by the learned Civil Judge, Lahore in a suit in the nature of declaration-cum- Permanent Injunction.
2. Facts as borne out of pleadings of the parties are that Muhammad Asif Khan son of Naubihar Khan was owner of plot measuring 5 Kanals 16 Marlas 223 sq.Ft. Comprising Khasra Nos.2522/2 and 2520/2 situated in Village Mian Mir known as Zaman Park, Sundar Dass Road, Lahore. Muhammad Asif Khan, it is stated, died issueless on 2-4-1991. The respondents-defendants are the legal heirs of said Muhammad Asif Khan. It is asserted in the plaint that Muhammad Asif Khan was maternal uncle of the suitor and he was unmarried and was living with his ailing mother with the parents of the appellant at 12-Rajgarh, Lahore. He died in the same house. Appellant and her mother took care of Muhammad Asif Khan and in recognition of their services, out of love and affection; he gifted a constructed house comprising 4 Kanals. It is stated that the appellant was given in marriage to Altaf Ahmad Khan but after some time irritant issue arose which resulted in separation.
It is asserted that Muhammad Asif Khan made an oral gift of 4 Kanals of land with all superstructures, buildings and the servant quarter raised thereon. It is stated that the gift was made in presence of the close relations and the family friends and possession of the property was handed over to the donee. It is the case of the appellant that she was in undisturbed possession of the said property without any let or hindrance from any side but after the death of Muhammad Asif Khan, mutation No,3515 was sanctioned on 5-10-1991 by which the property is shown to have devolved upon the legal heirs of the deceased. It was stated that the mutation of inheritance No,3515 was illegal, unlawful and inoperative qua the rights of the suitor. There was a hot contest by defendant No, 1 . Defendant No,2 who is the mother of the appellant, filed a conceding written statement. The remaining contested the suit. Divergent pleadings of the parties gave rise to as many as five issues including one of relief. Issues Nos.2, 3 and 4 are the core issues which were decided together. Onus of these issues was proposed upon the appellant and the findings on the said issues were returned against the appellant. Issue No,1 was answered in negative. In nutshell the suit was dismissed vide judgment and decree dated 7-10-2006.
3. Learned counsel for the appellant states that the learned Court below misread and misinterpreted the evidence available on the record. Bitterly argued that the appellant is in possession of the land for more than two decades without any disturbance and such a long possession over the suit-land in itself is sufficient to reach at a conclusion that the suit property had been transferred to the appellant by way of oral gift. Also argued that sufficient documentary evidence is available on the record to demonstrate that the utility bills were in the name of the appellant but while returning findings on issues Nos.2, 3 and 4, the learned Court below has fallen in serious error.
4. Mr. Muhammad Ashraf Bajwa, Advocate for the respondents stated that the impugned judgment and decree passed by the learned Court below is rich in detail. Each and every aspect of the matter has been dealt with. He argued that in fact, there was no oral gift at all in favour of the appellant.
5. We have given our anxious considerations to the arguments of learned counsel for the parties and with their assistance perused the record.
6. The main hub of the case of the appellant is that she was niece of the deceased Muhammad Asif Khan. She along with her mother was living at 12-Rajgarh, in the house of her parents. Appellant and her mother rendered services to Asif Khan and out of sheer love and affection, he made an oral gift of the property measuring 4 Kanals detail whereof has been given in the plaint.
7. In total six witnesses were produced in evidence. It is the case of the appellant that she is a teacher in Atchison College. Mahmood Hussain son of Bostan Khan appeared as P.W.1. He stated that he is employee in the Atchison College and is living in the quarter since, 1983. He stated that Muhammad Asif Khan in his presence orally gifted the suit property to Mst. Farzana Khanum. He stated that no body had questioned the ownership. Rustam Khan appeared as P.W.2. He is also an employee of the said College where the appellant is a teacher. He also deposed in the same terms.
P.W.3 Gulzar Khan stated that he had been visiting the said Bungalow. His nephew Majeed was living in the quarter. He stated that the appellant is putting up her residence and abode in the said house. Amanat Ali was got recorded as P.W.4. Mst. Shamim Afza is mother of the appellant; she appeared as P.W,5. She in her evidence reiterated the same stance which she took in the conceding written statement. She stated that the appellant developed acrimonious feelings against her husband and marital union resulted in separation. She stated that in 1968 when Asif Khan was living in his house at Rajgarh, he made an oral gift in favour of the plaintiff-appellant.
Appellant herself appeared as a witness of her own. She stated that in the year, 1968 oral transaction of gift was made' in her favour. She along with her husband had been living in the said house till 1974. She deposed in support of her plaint.
8. Sajjad Hussain appeared as D.W.1 and Muhammad Iqrar Khan son of Ayaz-ud-Din Khan also appeared as D.W.2. Both the witnesse negated the version of the appellant tooth and nail.
9. Much emphasis has been laid on the point that the appellant brought six witnesses in the witness box whereas two witnesses were brought by the defendants. It is stated that the quantity of the evidence is much more as compared to the defendants and witnesses are consistent on the point of oral gift. The argument has no force. The proposition of law has been settled by now that quality of the evidence is to be seen and not the quantity. All the witnesses barring one who is mother of the suitor are the employees in Atchison College where the appellant is a teacher. The evidence of these witnesses has been discarded by the Court below fundamentally for the reason that they are partial witnesses and not belonging to the family, therefore, their evidence does not inspire confidence. None from the family members have been brought on the record to demonstrate that Muhammad Asif Khan deceased made an oral gift. The oral gift alleged to have been made in the year, 1968 and till the death, the appellant who has been a teacher in the most illustrious Institution namely Atchison College never felt necessity to get the property transferred in her name through a registered deed. No doubt, oral gift is permissible in Islamic law but to prove the oral gift, strong evidence of unimpeachable character is required.
10. Learned counsel for the appellant relied upon Hakim Khan v. Aurangzeb and another 1979 SCMR 625 to contend that the gift becomes complete on delivery of possession and entries in the Jamabandi. The said case-law relied upon by the appellant utterly goes against him. The principle of law laid down in the judgment supra by the apex Court is that in the said case suit was instituted after 14 years which in circumstances was held to be barred by time. In the referred case, the gift was made through mutation which was attested by the revenue officer in pursuance whereof the delivery of possession took place but in the case in hand, the position is entirely different. The case of the suitor hinges on oral evidence. Learned counsel further relied upon Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2007 Lah.467, Mst. Naseeban etc. L.Rs, of Abdullah v.
Maqbool Ahmad PLD 1987 Lah.654 and Raghab Ilussain and 5 others v. Muzaffar Hussain and 6 others 2005 YLR 2605. In the latter case of Raghab Hussain, there was a mutation sanctioned in respect of gift way back in the year, 1970 and the dispute had arisen after death of the donor. In circumstances of the case it was held that the donor after making a gift, remained alive for ten years and during his lifetime no body came forward to contest the said mutation of gift. In the case in hand, there is no mutation or the registered instrument to reach at a conclusion that there was a valid gift made in favour of the suitor by Asif Khan. P.W.5 is the real mother of the appellant. She made a blunt statement that Asif Khan was not an educated man. When questioned the learned counsel for the appellant that the deceased during his lifetime ever made an application to the Excise Department or to some other Department where he made an admission that he gifted the property to the appellant, the answer was in negative. Learned counsel for the appellant laid much stress on the point that telephone connection was in the name of the appellant Farzana Khanum.
He criticized the findings of the learned Court below that in the utility bills, name of the appellant has been shown. Utility Bills have not been formally exhibited or brought on the record, however, there are certain Photostat copies available on the record to show that bill of water and sanitation was in the name of Muhammad Asif Khan. Similarly the electricity bill was also in the name of Muhammad Asif Khan. The natural witness belonging to the family of Asif Khan has not been brought on the record. Mere fact that P.W.5, mother of the appellant, filed a consenting written statement and also deposed in favour of her daughter, alone is not sufficient to conclude that there was a valid oral gift in favour of the suitor.
11. For whatever it has been stated above, we have come to the conclusion that the impugned judgment and decree of the Court below is based on sound judicial considerations. No case for interference is made out.
12. Before parting with this judgment, we deem it necessary to clarify that admittedly late Muhammad Asif Khan was survived by two brothers namely Muhammad Zulfiqar Khan and Muhammad Ayaz Khan as also a sister Mst. Shamim Afza. Thus each brother would get 2/5th share while sister would get 1/5th in the suit property. Out of the said persons i,e, the original defendants, Mst. Shamim Afza died on 14-10-2006 and survived by her L.Rs, also on record including Mst.
Farzana Khanum appellant-plaintiff. Muhammad Zulfiqar Khan died on 20-1-2007. He was survived by a widow namely Mst. Rafiqua Khanum and brother Muhammad Ayaz Khan. Out of his 2/5th share, 1/4th will go to the widow and 3/4 to Muhammad Ayaz Khan. Muhammad Ayaz Khan also died in June, 2008 and he was survived by three sons and a daughter who are on record. Said Rafiqua Khanum, widow of Muhammad Zulfiqar Khan, had also died and her L.Rs i,e, her three brothers have been brought on record. We may further note here that Mst. Shamim Afza in her lifetime conceded the claim of her daughter i,e, Mst. Farzana Khanum-appellant. In the said overall circumstances, the shares of the parties in the suit property would be as follows:-- Names. Shares.
Mst. Farzana Khanum 1/5 share or 2/10 Muhammad Ayaz Khan/L.Rs. 2/5 + 3/10= 7/10 Mst. Rafiqua Khanum/L.Rs. 1/10
13. The appeal has no merit and the same is hereby dismissed leaving the parties to bear their own costs.