' IQBAL HAMEED UR RAHMAN, J.---By means of instant petition, the petitioner has called in question the impugned judgment, dated 6-11-2009 passed by learned Additional District Judge, Samundri, District Faisalabad; whereby while dismissing his appeal, the order, dated 22-10-2009, passed by the learned Civil Judge was kept intact.
2. Facts of the case succinctly required for determination of above civil revision are that the petitioner as plaintiff filed a suit against the respondents/defendants for declaration. In the suit, the petitioner as plaintiff also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. For grant of temporary injunction. The learned trial Court seized with the matter after affording proper hearing to both the parties, dismissed the application. The petitioner being aggrieved of the order of learned Civil Judge, assailed the same through filing appeal before the learned Additional District Judge, Samundari, District Faisalabad. The learned lower appellate Court while affirming the order of the learned trial Court, dismissed the appeal in terms of judgment, dated 6-11-2009. Hence, this civil revision.
3. Learned counsel for the petitioner submits that the order, dated 6-11-2009, passed by the learned Additional District Judge is illegal and unlawful. It is further submitted that both the learned lower courts below while refusing the temporary injunction to the petitioner failed to appreciate that the possession of the property is still with the petitioner and three essentials of gift i.e, (i) declaration of gift by donor, (ii) acceptance of gift by donee, and (iii) delivery of possession of subject-matter of gift by donor to donee as depicted under section 149 of the Muhammadan Law are not made out in favour of the respondents. It is urged that the petitioner shall definitely suffer irreparable loss if the property is alienated.
4. As against above, learned counsel for the respondents has vehemently opposed this petition and has supported the order of the learned trial Court and affirming judgment of the learned Additional District Judge, Samundari, District Faisalabad. It is contended that gift is from father to his son. It is also submitted that neither in stay application before the learned trial Court nor before the learned Additional District Judge, it finds mentioned that the petitioner is in possession of the property or the respondents are not in possession of the same and it is for the first time that the petitioner has urged this point through the instant petition that the essentials of gift have not been completed as the property is still with the petitioner. Learned counsel further argued that only petitioner Muhammad Saeed son of Muhammad Latif is challenging the mutation and against the same all the other legal heirs (respondents Nos.1 to 11) of Muhammad Latif deceased are supporting this gift in favour of respondent No,
1. On the point of preferential gift in favour of respondent No,1, learned counsel for the respondents has contended that as per dictum of law laid down in PLD 2006 SC 15, the matter has been determined in detail and the case-law favours the stance taken by the respondents as the mutation was not challenged during life time of the donee as is in the instant case. Learned counsel further submitted that there are concurrent findings of the facts by the learned Courts below in favour of the respondents and learned counsel for the petitioner has failed to establish any jurisdictional error committed by the learned lower courts calling for interference by this Court and moreso the scope of civil revision is very limited, therefore, the instant petition deserves dismissal.
5. In rebuttal, learned counsel for the petitioner has submitted that the gift has been mutated on the basis of fake documents and as such balance of convenience lies in favour of the petitioner.
Controverting the contention of learned counsel for the respondents that the question of possession of the petitioner has been agitated before this Court first time, learned counsel for the petitioner has submitted that law points can be raised at any stage. Learned counsel also stated that all the ingredients required for grant of temporary injunction lie in favour of the petitioner and he shall suffer an irreparable loss if the stay is not granted, therefore, interference by this Court in the illegal/unlawful impugned orders of the learned Courts below is made out.
6. Arguments advanced pro and contra have been heard. I have also gone through the record available on file as well as the impugned orders passed by the learned Courts below with the able assistance of learned counsel for the parties.
7. The point involved in the instant case is the validity of preferential gift mutation made in favour of respondent No,1 by his father to whom the petitioner as well as all the respondents are legal heirs and undisputedly respondents Nos.2 to 11 are not disputing the mutation of gift in favour of respondent No, 1 . The stance of respondent No,1 is based on duly sanctioned gift mutation; whereas, the case of the petitioner is that the gift mutation is result of misrepresentation and forgery. In my view the gift mutation is presumed to be solemn till it is proved to be tainted with fraud, forgery or misrepresentation through leading cogent evidence, therefore, I find no substance in the arguments of learned counsel for the petitioner that balance of convenience lies in favour of the petitioner or he has good prima facie arguable case in his favour. There is also no denial to the fact that respondent No,1 is enjoying his possession over the suit property since sanction of mutation in his favour as for the first time this point has been agitated by the petitioner after more than eight years that the mutation is fake and that's too after the death of donee. Moreover, the other legal heirs of deceased father of petitioner as well as of respondents are supporting the stance taken by respondent No,1 although fact remains that in case the mutation is set aside, they would be directly beneficiaries of the same as reasonable share would lie in their favour.
8. On the point of preferential gift, in a similar matter reported as Mst. Nusrat Zuhra v. Mst. Azhra Bibi and others (PLD 2006 SC 15) the Hon'ble Supreme Court of Pakistan has held as under:- "It is well-settled by now that the powers of a Muslim to dispose of the property by way of gift are unfettered. A gift cannot be invalidated only because the heirs are deprived of their shares."
In the same case it was also held:-- "(7) It thus becomes clear that no prohibition whatsoever has been laid down under the Islamic Law that a preferential gift cannot be made though a few jurists are of the view that it was not prohibited..."
9. The scope of revisional jurisdiction under section 115 of the Civil Procedure Code, 1908 is very limited as interference only in such findings can be made suffering from jurisdictional defect, illegality or material irregularity. Reference in this regard can be placed on the case of Umar Zad Shah and 2 others v. Karim Dad Khan (2004 CLC 1811). Moreover, against the concurrent findings, revisional jurisdiction under section 115, C.P.C., is exercised when the subordinate courts have exercised the jurisdiction not vesting in them under the law or have failed to exercise the jurisdiction so vested in them or material illegality/ irregularity has been committed. I have gone through the order and judgment passed by the learned Courts below and the stance taken by both sides. To my mind the concurrent findings of facts advanced by the learned Courts below are just having been passed in a lawful manner. No interference in exercise of revisional jurisdiction is called for in the concurrent findings of the learned Courts below. Reliance in this regard is placed on: 2009 SCM R 54 "Alamgir Khan through L.Rs, and others v. Haji Abdul Sattar Khan and others"
2008 SCM R 756 Amir Abdullah v. Kafaitullah Khan
10. The upshot of the above discussion is that the instant civil revision being devoid of merit is hereby dismissed.