' SYED SAJJAD HASSAN SHAH, J.--- The instant revision petition has been preferred against the judgment and decree dated 11-3-2005 passed by Additional District Judge-I, Lakki Marwat whereby the appeal filed by the present petitioners against the .Judgment and decree of learned Civil Judge-III, Lakki Marwat dated 13-6-2003 was dismissed.
2. Brief facts of the case are that Shafiullah respondent/plaintiff instituted a suit against Ghulam Ishaq and others petitioners/defendants seeking the declaration to the effect that the constructed property consisting of houses, as detailed in caption of plaint. Was the ownership of their predecessor-in-interest namely Haji Ghulam Habib Khan. The respondent/plaintiff, present petitioner, defendant No,1 and the respondents Nos.1 to 6/defendants Nos.7 to 11 privately partitioned their above mentioned property as per their share, whereafter they are in possession as owners of their respective shares. To this effect an agreement deed dated 31.1-1999 was executed between the parties, thus, the transfer through gift deed dated 23-4-2001 from petitioner/defendant No,1 in favour of petitioner/defendant No,2 is ineffective and inoperative on the rights of respondents Nos.1 to 6. The petitioners/ defendants by show of force and after breaking the locks, took over the possession of the house fallen in the share of respondents Nos 1 to 6, rented in favour of respondents Nos.7 to 10, thus, the petitioners and respondents Nos.7 to 10 occupying the possession of the property without any rhyme and reason, thus liable 'to be ejected.
The respondents Nos.1 to 6 are also entitled for the decree of possession and the perpetual injunction.
' The averments made in the plaint are that the houses constructed on the suit property measuring 3 Kanals, 10 Marlas was the ownership of their father, who had purchased through sale Mutation No,6742 attested on 28-2-1982 and Mutation No,7200 attested on 21-4-1988, he had paid the sale consideration of the suit property, however, the mutations were attested in the name of the petitioner No,1 who was student and having no means to purchase the property. After death of their father, the suit property devolved upon his seven sons, thus, the mutations of sale were attested illegally and unlawfully.-It is further averred that after the death of their father in the year 1999, the suit property was equally partitioned between the petitioner No,1 and the respondents Nos.1 to 6 and to this effect an agreement was executed between the heirs of Haji Ghulam Habib Khan (the predecessor-in-interest of the parties). The respondents/ plaintiffs averred that the unregistered gift deed dated 23-7-2001 executed by petitioner No,1 in favour of petitioner No,2 is also illegal, amounted to the violation of said partition deed as the petitioner No,1 being one of the parties to the deed, agreed to the private settlement and duly signed the same. They have also questioned the forcible entry by petitioner No,1 in possession of the suit property by breaking locks and further rented the suit property in favour of respondents Nos.7 to 10.
3.. The suit was contested by filing written statement by the petitioner/defendant No,1, who has asserted that their father had purchased two Kanals of land and gifted the same in his favour, whereafter the construction was raised incurring his own expenses. He further asserted that 1 Kanal, 10 Marlas of land was purchased and the sale consideration was paid by the petitioner No,1 same is beneath the constructed property. In the light of the divergent pleas raised by the parties in their pleadings, the learned trial Court framed the issues on 7-12-2001. The evidence of both the parties was recorded. The learned trial Court decreed the suit in favour of respondent No,1 and respondents/pro forma defendants Nos.7 to 11. Feeling aggrieved, assailed the judgment and decree by filing appeal, same was also dismissed.
4. The learned counsel for the petitioners contended that the suit property was purchased by the petitioner No,1 and the above referred mutations were attested in his name not as the result of the Benami transaction as averred by the respondent No,1 and pro forma respondents/defendants Nos.7 to 10 but the predecessor of the parties Haji Ghulam Habib Khan purchased the suit property and then transferred through gift in favour of petitioner/defendant No, 1 .He further contended that some of the suit property was purchased by petitioner on his own expenses, thereafter constructed a big house over the suit property. He claimed the ownership of the suit property and stated that Abdul Rashid respondent/pro forma defendant is in occupation of a portion of house as tenant of the petitioner No,1 likewise refuted the' family settlement arrived at between the parties regarding the suit property. He further argued that allegations made in paragraph-1 of the plaint to the effect that the suit property was purchased by the predecessor-in-interest of the parties on payment of his own sale consideration; however, Mutations Nos.6742 and 7200 were entered and attested in the name of petitioner/defendant No,
1. This fact has been denied by the petitioner/defendant No,1 in his written statement, however, no issue framed by the learned trial Court. He urged that before proceeding further in the instant case, an issue may be framed, the case be remanded to the trial Court for taking further proceeding and deciding afresh. The petitioner No,1 has transferred the suit property through unregistered gift deed dated 23-4-2001.
5. The learned counsel for the respondents contended that the suit property was purchased by their predecessor-in-interest on payment 'of sale consideration but the above referred mutations were attested in the name of the petitioner/defendant No,
1. After his death, the suit property devolved upon all his heirs and the petitioners cannot claim the exclusive ownership of the property. He further argued that the petitioner has failed to bring an iota of evidence on the record in support of his claim of ownership in the suit property. Both the Courts below concurrently held that the claim of the petitioner is not tenable and the suit filed by the respondents was decreed.
The petitioner No,1 has no legal right to transfer through gift the property owned by the predecessor of the parties. More so, pre-requisites of gift have not been proved by the petitioner.
6. 1 have considered the submissions of learned counsel for the parties and perused the record carefully.
7. During the course of his arguments, learned counsel for the petitioner has strenuously urged that the petitioner is the owner of the suit property as he purchased vide afore-stated mutations. The suit property is rented out on behalf of the petitioner and he is receiving the rent from the tenants.
A perusal of record reveals that the claim of the petitioner is negated by his own pleadings and evidence produced in support of his claim, as the petitioner in his written statement, admitted that the suit property was purchased by his father; however it was gifted in his favour by his father whereas 1 Kanal, 10 Marlas of land was purchased by him on his own expenses. When the petitioner/defendant No,1 was examined as. D.W.2, he has not uttered a single word in his statement that he is the owner of the suit property and it was gifted in his favour by his father.
Moreover, no document has been relied upon whereby the ownership of the petitioner, as today claimed on his behalf by his counsel, could be substantiated. The petitioner himself has abandoned his claim of ownership while appearing in support of his stance taken in his written statement, therefore, the Court is not under any obligation to examine the plea given up by the party to the suit. The dictum laid in case Mst. Kharo and 2 others v. Sher Afzal alias Shery 1992 SCM R 1844 is r.Eproduced below:--- ' We do not agree with the learned counsel that if a party gives up a plea regarding facts of the case, it is still the duty of the Court to examine the same. For example, the learned counsel for the petitioner has given up the plea of petitioner regarding contiguity. When arguing the petition, it cannot be said that it is the duty of this Court despite his having given up the said point to examine it."
' Before closing this order, it needs to be clarified that when a party gives up a point particularly which relates to facts and circumstances of the case which are best known to the parties themselves, it is always possible to assume that such conduct of the parties might have been influenced by a realization about the actual realities, rather than what is stated in the formal pleadings."
' The claim of the petitioner/defendant No,1 to be adjudicated after scrutinizing the claim of the respondents in juxtaposition with the averment made in the written statement as well as his evidence brought on record during trial of the case.
8. In paragraph-1 of the plaint, the respondent No,1 in person and for other respondents Nos.2 to 7 has challenged the Mutations Nos.6742 and 7200 on the ground that the suit property was purchased by their father on payment of his own sale consideration, the above mentioned sale mutations were attested in the name of petitioner/defendant No,
1. In fact he has no concern with the suit property, as he was a student at the time or its purchase by father of petitioner No,1 and respondents Nos.1 to 7.
9. In reply, the petitioner admitted that two Kanals out of suit-land were purchased through sale transaction by his father and was transferred in his favour through gift, one Kanal, ten Marlas of land was purchased by petitioner/defendant No,1 through his own resources and thereafter constructed a house over the suit property.
10. The petitioner/defendant No,1 has not based his claim on the sale mutations, as challenged by the respondents in paragraph-I of the plaint. It appears that he abandoned the claim of ownership emanating in his favour through the, said mutations. However. He has raised new plea of gift of the suit property in his favour by his father. Now question arises that whether the petitioner/defendant No,1 has discharged his onus of proof that he acquired the property through gift in his favour. This question being of vital importance in adjudication of controversy in between the parties, same is to be decided after appraising the evidence available on record. In this regard, there is a sole statement of petitioner/defendant No,1 recorded as D.W.2. The careful examination of his statement reveals that he deposed about his claim of suit-land whereupon house constructed, in the following words:- {{URDU TEXT}} ' Again made departure from his pleading by asserting in the manner mentioned above and did not prefer the claim through gift in his favour and the purchase of the land out of the suit property.
The respondents have sought the annulment of the afore-mentioned sale mutations which were attested in favour of the petitioner. The necessary corollary of the stance of the petitioner/defendant No,1 would be that he took the different pleas at different times not supported by evidence worth the name, therefore, he has failed to prove his stance. The claim preferred by the respondents in their plaint has been admitted in written statement and further that same has not been disputed in his statement before the Court as such, it enjoys the legal sanction as enshrined in Article 113 of the Qanun-e-Shahadat Order as well as under Order XII, Rule 6, C.P.C.
Moreover, the petitioner/defendant cannot deviate from his pleading. On the other hand, the respondents produced their evidence which was authentic and confidence inspiring. None of the witnesses, who has narrated the facts of the case in examination-in-chief, has been cross examined on behalf of the petitioner/defendant No,1. As such, the evidence produced by the respondents/plaintiffs has also been admitted by the petitioner/defendant No,
1. As by now it is well-settled principle of law that the statement or its portion if not cross-examined, it would be deemed that same has been accepted by the other party.
11. The learned Courts below have relied upon the statement of P.W.3 Mst. Shan Bibi widow of Haji Ghulam Habib Khan who has categorically stated that the suit property was the ownership of Ghulam ,Habib Khan and he had constructed a big house over an area of 3-1/2 Kanals and the construction was so designed that all his legal heirs may live peacefully and amicably in their share. She is the real mother of the parties and deposed without any fear and favour therefore, her statement is given full credence. Nothing has been brought on record to discard the evidence of the respondents/plaintiffs. The above circumstances lead to the irresistible conclusion that the suit property was owned by Ghulam Habib Khan, the predecessor of the parties, and after his death, all his legal heirs are entitled in his legacy in accordance with their shari shares.
12. The respondents/plaintiffs have claimed the private partition of the suit property as devolved upon all the heirs of Ghulam Habib Khan. In this respect, a deed containing private settlement was executed which is Exh.P.W.2/1, whereby all the heirs have partitioned the property left by their father including the suit. Property. This deed was also accepted by the present petitioner/defendant No,1 and was duly signed by him. Besides two affidavits Exh.P.W.2/2 and Exh.P.W.4/3, another document (Exh.P.W.2/3) has been brought on record in the shape of letter written by Muhammad Gul to all his brothers regarding the sale of his share in the suit house. Same was also signed showing that petitioner/defendant No,1 has no objection to the sale of the property. The signature of the petitioner/defendant No,1 was duly examined and compared by the learned trial Court in terms of Article 84 of Qanun-e-Shahadat Order and reached to the conclusion that the signatures on the documents are similar to those admitted signatures of the petitioner/defendant No,
1. The Court has the power to compare the questioned signature with the admitted one in terms of Article 84 of Qanun-e-Shahadat Order, 1984 which read as under:--- "84. Comparison of signature, writing or seal with others admitted or proved.-- (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person, may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
13. ............... Moreso, besides Mst. Shan Bibi P.W.3 the mother of the parties, rest of, the witnesses have also affirmed the factum of ownership as well as the partition of the suit property amongst the heirs of Ghulam Habib Khan. However, this fact has not been challenged by the other party during cross-examination, therefore, it is presumed that the statement has .Been admitted as correct.
14. It was further argued that in paragraph-1 of the plaint, the respondents/plaintiffs averred about the transfer of the suit property in favour of petitioner No,1 by his father who had purchased the same, but even after denial of the said assertion. No issue was framed by the learned trial Court that "as to whether the transfer of property vide sale Mutations Nos.6742 and 7200 made in favour of petitioner No,1 as Benami", therefore, prejudice caused to the petitioners/defendants Nos.1 and 2 in defending his rights in the suit property.
15. The above stated objection at this stage is not tenable, as the petitioners have not agitated the same either before the trial Court or before the appellate C\ourt. Moreover. It is held in the earlier part of the judgment that the property was the ownership of Ghulam Habib Khan and same has been privately partitioned by all the heirs and are occupying its possession according to their shares. Even otherwise both the parties were fully aware of the controversy existed between them and have produced their evidence without any objection thus the objection has no force. Reliance placed in Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1995 SCMR 2018 wherein it was observed that:--- "The pleadings and issues as originally framed show that the parties were fully aware what was the subject matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non- framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Askari and others PLD 1971 SC 82 that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of issue is not illegal. That has been the established law in the subcontinent as would appear from Seer Muhammad v. Fatteh Muhammad (22 Indian Appeals 4.)"
15. As far as the claim of petitioner/defendant No,2 regarding the gift of suit property in her favour by her husband petitioner/defendant No,1 is concerned, it has also become redundant firstly because not proved in accordance with law and secondly; the claim of petitioner/defendant No,1 has been declared as against the law and not maintainable, therefore, any superstructure built upon such claim would be bound to fall to the ground.
16. The findings rendered by the learned trial Court were examined G by the learned appellate Court and arrived at the conclusion that the judgment and decree passed by the learned trial Court are in accordance with law and facts obtained on the record. In such eventuality, no interference can be made with concurrent findings of the two Courts below on the question of fact.
Reliance placed in the case titled Kanwal Nain and 3 others v. Fatteh Khan and 2 other PLD 1983 SC 53.
17. Resultantly, the findings of both the learned courts are not suffering from any misreading or non-reading of evidence muchless jurisdictional error, thus, maintained and the revision petition being devoid of merits is hereby dismissed.