' HAFIZ ABDUR REHMAN ANSARI, J.---Through this Civil Revision petition under section 115, C.P.C., petitioners Shaukat Hayat etc., have assailed the judgments and decrees dated 7-5-2003 and 17- 3-2004. Through the former judgment and decree dated 7-5-2003 the suit of the petitioners for declaration to the effect that the plaintiffs-petitioners are owners in possession of the suit property measuring 10 Kanals and gift Mutation No.312 dated 23-8-1980, allegedly gift made by the plaintiffs in favour of defendant No.2, is against law and facts, was dismissed by the learned Civil Judge, Multan. Through the latter judgment and decree dated 17-3-2004 the appeal filed by the petitioners-plaintiffs against the judgment and decree of the trial Court was also dismissed by the learned Additional District Judge, Multan.
2. Brief facts of the instant revision petition are that present petitioners filed a suit for declaration and permanent injunction that they are owners-in-possession of the suit property and the gift Mutation No.312 dated 23-8-1980 allegedly made by the plaintiffs-petitioners in favour of respondent-defendant No.2/Health Department, Government of the Punjab, is against the law and result of fraud and liable to be declared void and cancelled. It is further alleged in the plaint that the plaintiffs are owners in possession of the land measuring 10 Kanals situated in Khewat No.165 of the Revenue estate of Mouza Soman, Tehsil Shujabad, District Multan. It is further alleged that the defendants-respondents being collusive with the Revenue officials have fraudulently got attested the impugned mutation for the purpose of establishment of a dispensary but the dispensary has not been established by the defendant No.2/respondent therefore the impugned mutation is illegal, against the law and facts. It is further alleged that the plaintiffs-petitioners did not appear before the Revenue Officer for attestation of the impugned mutation.
3. Defendants-respondents did not file their written statements so their defence was struck off on 11-12-2002. Evidence of the plaintiffs-petitioners was recorded wherein they produced Muhammad Hayat as P.W.1, Muhammad Ramzan as P.W.2 and Karim Bakhsh as P.W.3. Power of attorney was filed as Exh.P.1. The impugned mutation had been filed as Exh.P.2, copy of record of rights as Exh.P.3, copy of Rapt Roznamcha as Exh.P.4, copy of Khasra Girdawari Exh.P,5 to Exh.P.9 and copy of record, of rights as Exh.P.10. As no written statement was filed, defence of the defendants-respondents was struck off, so no evidence was produced on behalf of the defendants-respondents in rebuttal of the evidence of the plaintiffs-petitioners. Anyhow, the learned trial Court vide judgment and decree dated 7-5-2003 dismissed the suit of the plaintiffs. The present petitioners filed an appeal before the District Judge, Multan on 14-6-2003, assailing the judgment and decree of the. Trial Court. The learned Additional District Judge, Multan vide judgment and decree dated 17-3-2004 dismissed the appeal of the plaintiffs, hence the instant revision petition.
4. The learned counsel for the petitioners submits that both the Courts below committed material illegality in dismissing the suit of the petitioners. Further submits that firstly the plaintiffs-petitioners never gifted the disputed land in favour of the Health Department, Government of the Punjab.
Anyhow, in Roznamcha Waqiati Exh.P.4 it is very much mentioned. Even if there was any collusive entry about the gift, even then that was conditional gift mutation that if the dispensary was not constructed the land in dispute would be reverted to the owners of the land.
5. On the other hand, the learned Assistant Advocate-General appearing on behalf of the Health Department opposed the contentions of the learned counsel for the plaintiffs-petitioners and vehemently supported the judgments of the two Courts below, and contended that the judgments of both the Courts below are based on record and no illegality or irregularity has been committed by the lower Courts while passing their judgments and decrees.
6. I have heard the arguments of the parties and minutely perused the record on the file. In both the Courts below respondents-defendants vehemently asserted that the land in dispute was in their possession. Basic ingredients of gift are offer, acceptance and delivery of possession. No doubt, in the Revenue Record the entry was manipulated that the land in dispute is in possession of the respondents. When the respondents' learned counsel was questioned that the possession of the disputed land was with whom, he after getting instructions from the Health Department, Multan replied to the Court that for the last near-about 29 years the physical possession of the land was still with the petitioners-plaintiffs, real owners of the land. The Health Department submitted comments in the instant civil revision in which in paras.2 and 3 it is mentioned that budget was sanctioned during the year, 2004-2005. The District Development Committee held a meeting on 26-10-2004; the District Government has required PC-1 of the development projects to be approved and executed in the current financial year, 2004-2005 from the Health Department. The preparation of PC-1 for establishment of Basic Health Unit a Bootay Wala, Dispensary at Peer Aolia Jalalpur Pirwala and MCH Centre at Mouza Soman, Tehsil Shujabad, District Multan are under process with the office of respondent No.2 for which the Government land is available. It is unfortunate that till the time of final hearing of the revision petition no steps have been taken to construct and establish the dispensary for the purposes of which land was allegedly gifted by the plaintiffs-petitioners, while the petitioners vehemently denied the execution of gift mutation and delivery of possession. It is very strange that during trial defendants-respondents/Health Department did not file their written statement and the defence was struck off, even then the learned trial Court on its own pleaded the case of the Health Department and dismissed the suit of the plaintiffs-petitioners. Same was situation in the lower appellate Court. The learned Additional District Judge dismissed the appeal of the petitioners-plaintiffs filed against the judgment and decree of the trial Court, although nobody on behalf of the respondents in the lower appellate Court contested the appeal.
7. In view of the above discussion, it is held that the physical possession of the disputed land measuring 10 Kanals is still with the plaintiffs-petitioners and physical possession of the said land was never delivered to the respondents-defendants, as such no gift was made in favour of the Health Department, Government of the Punjab. The entries made in the Revenue Record were fictitious, result of collusiveness of the officials of the Revenue Department with the Health Department. For this view I am guided by the dictum laid down in the cases reported as Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCM R 1121, Mian Muhammad Rafiq Saigol v. Trust Modarba 2003 CLD 634, Muhammad Sarwar and 3 others v.
Jahangir Ahmad and 5 others 2002 CLD 1865-Lahore (DB), Maula Dad v. Fazal Dad 2002 MLD 1101, Mrs. Saima Khatoon v. Manzar Hussain 1993 M LD 1542-Karachi, and Manzoor Hussain v. Raja Shah and others 1992 CLC 602. In the case of Muhammad Zaman (supra) the Honourable Supreme Court ruled that, "Ordinarily under the Muslim Law three requirements for a valid gift are (it) a declaration of gift by the donor (ii) acceptance of the gift express or implied by or on behalf of the donee, and (iii) delivery of possession of the subject-matter of the gift by the donor to the donee."
In all the other cited cases, same view was taken by High Courts.
8. Resultantly, this revision petition is allowed. The suit filed by the petitioners-plaintiffs is decreed.
No order as to costs.