' SHAH JEHAN KHAN YOUSAFZAI, J.---This revision petition is directed against the concurrent findings of the two Courts below whereby the suit for declaration and perpetual injunction filed by Abdul Hameed and others, plaintiffs/petitioners against Abdul Ghafoor and others contestant defendants/respondents was dismissed by the trial Court vide judgment and decree dated 179- 2005 which was upheld in appeal by the lower Appellate Court vide judgment and decree dated 5- 5-2007. The defendants/respondents Nos.2 to 7 have also filed Regular First Appeal bearing No,34.
Of 2007 whereby their suit for the recovery of compensation amount was dismissed by the trial Court through the judgment and decree dated 11-1-2007. Since the parties and subject-matter of dispute is the same, therefore, both the matters are being disposed of through this single judgment.
2 . Precisely stating the facts of the case are that the plaintiffs/ petitioners filed a suit for declaration to the effect that the property fully described in the heading of the plaint situated at Mauza -Shahi Bala Tehsil and District Peshawar as per Jamabandi for the year 1992-93 measuring 1588 Kanal 17 Marla or any area discovered through revenue papers, left by their predecessor Abdur Rashid, is owned by them through Tamleeq Nama dated 28-114994. That the said Abdur Rashid after executing the Tamleeq Nama in favour of the plaintiffs/ petitioners, he had got no concern with it and the inheritance Mutation No, 2534 attested on 18-7-1996 after his death, is forged, fake, fictitious, wrong, against the facts and based on collusion, is liable to be set aside and the defendants/ respondents have got no concern with the disputed property or to disclose themselves as owners or possessors and the Revenue Record is liable to correction in this regard.
Also prayed for perpetual injunction against the defendants/respondents.
3. As per contents of the plaint, Abdur Rashid had three sons namely Abdul Qayyum, Abdul Ghafoor and Abdul Hameed and two daughters namely Mst. Irshad. Begum and Mst.Asima Begum. Abdul Qayyum had died issueless before the death of his father Abdur Rashid and was survived by his sole legal widow Mst. Zahida Begum. Mst. Irshad Begum had also died leaving behind Ali Akbar, Ali Asghar (Sons) and Mst.Zakiya Begum, Mst.Asia Beguin and Mst.Tahira Begum (daughters). Abdul Qayyum.Who died issueless whose property devolved upon his widow to the extent of 1/4th share and the remaining 3/4th went to his father Abdur Rashid. Abdur Rashid was allegedly residing with the plaintiffs/petitioners and defendant/respondent No,1 and had love affection with them. Abdur Rashid predecessor of the parties through registered power of attorney bearing No,985 dated 5-5- 1992 appointed Abdul Ghafoor defendant/respondent No,1 empowering him to sell, gift, exchange or mortgaged his property. Abdul Hamed plaintiff/petitioner No,1 and Abdul Ghafoor defendant/respondent No,1 had looked after their father and in response he gifted his entire property through Tamleeq Nama dated 28-11-1994 in favour of the plaintiff's/petitioners and defendant/respondent No,1 and they are exclusively owners in possession of it as donee. The plaintiffs/petitioners were in the process of giving effect to the Tamleeq Nama in the Revenue Record, meanwhile Abdur Rashid died and the contestant defendants/respondents in Order to deprive the plaintiffs/petitioners from their ownership entered into inheritance Mutation No,2534 which was attested on 18-7-1996.
4. The inheritance Mutation was contended to be that after gifting (orally) the entire property in favour of the plaintiffs/petitioners and defendant/respondent No,1 their predecessor Abdur Rashid had got no concern with the disputed property and the same cannot be held to his legacy, thus the said Mutation is wrong, based on fraud and collusion. Also contended that Abdur Rashid had appointed defendant/respondent No,1 as his attorney and the said power of attorney was never cancelled in his life time. The plaintiffs/petitioners claimed to be the exclusive owners in possession of the disputed property which was originally owned by Abdur Rashid the predecessor of the parties.
5. Abdul Ghafoor defendant/respondent No,1 submitted cognovit while Mst.Zahida defendant/respondent No,8 though did not deny the title of the plaintiffs/petitioners but has been arrayed as pro formal defendant in the suit. Only defendants/respondents Nos.2 to 7 have contested the suit by filing written statement wherein they raised legal and factual objections. The plaintiffs/petitioners also filed rejoinder to the written statement and the trial Court framed as many as ten issues including the relief wherein Issues Nos.2 and 6 to 8 are crucial and the learned counsel for the parties restricted themselves to these issues in the arguments. Evidence pro and contra was recorded and after hearing the learned counsel for the parties the trial Court vide judgment and decree dated 17-9-2005 dismissed the suit of the plaintiffs/petitioners. Dissatisfied with the above judgment and decree of the trial Court, the plaintiffs/petitioners preferred an appeal bearing No,33/13 of 2005 and the lower Appellate Court while concurring with the findings of the trial Court dismissed the same vide judgment and decree dated 5-5-2007 which is impugned herein through the instant revision petition.
6. Learned counsel for the plaintiffs/petitioners supported the averments of the plaint and contended that the plaintiffs/petitioners had established that their predecessor Abdur Rashid had gifted his entire holding in his life time in favour of the plaintiffs/petitioners and defendant/respondent No,1 and he had also appointed defendant/ respondent No,1 as his attorney empowering him to sell, mortgage, gift or transfer his property on his behalf.
7. In rebuttal learned counsel for the contestant defendants/ respondents submitted that Abdur Rashid had appointed Abdul Ghafoor his son defendant/respondent No,1 only to deal with PDA (in acquisition process) on his behalf as due to his old age and infirmity he could not pursue the matter with the PDA and he had not empowered him to sell, mortgage, gift or exchange of his property. The gift by Abdul .Ghafoor in capacity of attorney of his father Abdur Rashid in favour of Abdul Hameed plaintiff/petitioner No,1 and grand son plaintiff/petitioner No,2 for one half of the entire holding mentioned in the .Tamleeq Nama and -the remaining half in favour of five sons of Abdul Ghafoor, is forged, un-registered, fictitious, collusive and was not proved to be a genuine document through cogent evidence.
8. Both the learned counsel the contestant parties relied upon various case-law. To establish that concurrent findings are not sacrosanct immune from interference by this Court in its revisional jurisdiction. In this regard learned counsel for the plaintiffs/petitioners relied upon the followling authorities:--
(i) PLD 1989 Supreme Court 568,
(ii) 2002 CLC 300,
(iii) 2004 SCMR 1001 and 1668,
(iv) 2005 SCMR 774 = 2005 PLC (C.S.) 737
9. There is no cavil to the proposition that concurrent findings itself are not sacrosanct immune from interference by the High Court in its revisional jurisdiction. A close perusal of the cited judgments would reveal that though concurrent findings create a presumption but rebutable, if the findings are based on mis-reading, non-reading of evidence or given unsound reasons or acted without jurisdiction, the High Court shall interfere in the matter and would be competent to set aside the decree/judgment based upon concurrent findings. In the instant case learned counsel for the plaintiffs/petitioners failed to point out any mis-reading or non-reading of evidence or any jurisdictional defect in the concurrent findings of the two Courts below, therefore, the cited judgments are of no use for the plaintiffs/petitioners who had failed to succeed in establishing genuine gift in their favour by the predecessor of the parties the last full owner, they succeeded in establishing that Abdul Ghafoor his attorney was granted the powers to make gift on behalf of his father in favour of his own sons, brother Abdul Hameed and his son. Learned counsel for the plaintiffs/petitioners also produced case-law on the subject that under Muhammadan Law a gift, may be made verbally without reducing the same into writing and a gift though reduced into writing but not registered could not be termed illegal for want of registration. He also relied upon (1987 SCMR 1403), 2009 SCMR 623, (200:3 CLC 110) and (2009 SCMR 623). There is no denial to the contentions that under Muhammadan Law a Muslim can make a valid gift either verbally or through execution of a gift deed and registration of gift deed is not essential under sections 123 and 129 of the Transfer of Property Act, 1882 but for a valid gift the beneficiary of the alleged gift is charged with heavy burden to establish the three essential ingredients of the deed (i) offer of the donor, (ii) acceptance by the donee and (iii) delivery of possession. In the cited judgments and in so many other judgments produced at the bar the apex Court has repeatedly held that the person claiming to be valid donee shall establish the aforesaid three ingredients failing which the beneficiary of the alleged gift could not be granted any declaration of title as donee. It is established from the record that Abdur Rashid had good terms with all of his successors including the daughters and kids of the sons and daughters. He used to visit the house of his daughters and during his illness and admission in the Hospital, the living daughters and the sons and grandsons also the son-in-law used to attend him in the Hospital and all 'of them had served him till his last breath. Here the question will arise that why he authorised his son Abdul Ghafoor defendant/respondent No,1 to alienate his entire holding in favour of his (Agent) sons and his (Agent) brother Abdul Hameed and his only son Muhammad Tahir and depriving his remaining legal heirs. The plaintiffs/petitioners have miserably been failed to establish the factum of offer, acceptance and delivery of physical possession in favour of the donee, thus the cited judgments go against the contentions of the learned counsel for the plaintiffs/petitioners.
10. It was observed in a case reported as (PLD 2003 Supreme Court 494) that transfer of property by an attorney holder as agent of the principal casts a burden upon the agent that in case of selling on behalf of principal much less a sale in favour of agent himself, the general attorney must take special permission from the principal while transferring his principal's property in his own name or in the name of his close fiduciary relations. The stance of the plaintiffs/petitioners is that Abdur Rashid their predecessor had gifted his entire property in favour of the plaintiffs/petitioners and defendant/respondent No,1 and they were in process of giving its effect in the Revenue Record that Abdur Rashid had passed away. Had it been the position then what was the need of executing general power of attorney in favour of defendant/ respondent No,1 and when the entire property of the Principal, his father was gifted, how he again gifted the same in favour of the plaintiffs/ petitioners and his sons. This conflict in the stance of the plaintiffs/ petitioners in the trial Court is itself sufficient to refuse them the requisite declaration etc. Against the disputed inheritance Mutation.
11. In another case reported as 1997 SCMR 1811 it was observed as follows:-- "In order to establish a valid gift of property by donor in favour of donee where gift, is made through a person authorised by donor, intention of donor to make gift must be established in clear terms-- In such a case authority given by donor in favour of another person to make a gift of his property besides containing power to make gift must also clearly specify property and donee-Law propounded by Supreme Court on scope of holder of a General Power of Attorney in alienating property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be agent himself, he should in his own interest obtain consent of principal failing which principal is at liberty to repudiate transaction."
12. In another case of this Court reported in (PLD 1996 Peshawar 86) the same principle enunciated in the aforesaid judgment of the apex Court, a gift made in favour of wife by the agent through a General. Power of Attorney on behalf of his principal was not considered a valid gift.
13. In a case reported as (1994 SCMR 818) it was held that for a valid gift love and affection being consideration of gift cannot be expressed by any attorney as Agent on behalf of principal/donor, such sentiments must be established to have come from donor (the Principal).
14. In the instant case the alleged attorney has made a gift as Agent in favour of his sons, his brother and his brother's son in consideration of love and affection with the principal who happened to be the father of the agent.
15. In (1994 CLC 1690) it was held that transaction or acts done under power of attorney without knowledge and consent of the Principal; by holding power of attorney on behalf of his principal selling land owned by the principal in favour of his own sons without the knowledge and consent of the principal, was held to be a sham and void transaction, and would not be a valid merely because the principal had not challenged the same during his life time, such transaction or act which was otherwise illegal, as the factum of transfer by the agent in favour of his sons on behalf of the principal may not have come in his knowledge during his life time.
16. In the light of the aforesaid cited judgments and there are also plethora of judgments on the subject that transfer by agent in favour of his (Agent) own successors or in deprivation of some of the legal heirs of the Principal, requires most cogent evidence for establishing a genuine transaction. In the instant case the plaintiffs/petitioners have miserably been failed to establish that Abdur Rashid common predecessor of the parties had so much love and affection with the donees coupled with hatefulness towards the deprived legal heirs was not established. Though Abdul Ghafoor defendant/respondent No,1 was appointed by his father Abdur Rashid as general attorney only for limited purpose to represent him in the execution process by PDA for the compensation of acquired land for the rehabilitation of Afghan Refugees due to his old age and infirmity. This much authority of defendant/respondent No,1 is also admitted by the contestant defendants/respondents and the gift by the attorney defendant/respondent No,1 (as Agent) in favour of his own sons, brother Abdul Hameed and his son Muhammad Tahir on behalf of the principal Abdur Rashid was not established through cogent evidence.
17. So far as the connected Regular First Appeal filed by Mst.Asma Begum and others, appellants (respondents Nos.2 to 7 herein) is concerned, the petitioners in the instant revision petition have challenged the inheritance Mutation No,2534 attested on 18-7-1996 of Abdur Rashid the common predecessor of both the parties on the ground that the said Abdur Rashid had no property left and on the basis of the above noted inheritance Mutation the present appellants have filed the instant suit for the recovery of compensation of the disputed property and the said suit and appeal of the petitioners Abdul Hameed etc. Have been dismissed by the Courts below and now their revision petition is also going to be dismissed, therefore, the appellants in the appeal (now respondents Nos.2 to 7 herein) are also held entitled to receive the compensation amount prayed for to the extent of their shares which have been received by Abdul Hameed etc.
18. In the wake of the above discussion, I found no illegality, material irregularity, mis-reading or non-reading of evidence or any jurisdictional error in the concurrent findings of the two Courts below which needs no interference by this Court in its revisional jurisdiction. Resultantly, this revision petition is dismissed leaving the parties to bear their own costs. The connected Regular First Appeal is accepted, judgment and decree dated 11-1-2007 is set aside and the suit of the appellants is decreed as prayed for.