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 permanent injunction filed by the plaintiff/respondent was decreed by the trial Court vide judgment and decree dated 24-3-2005 and the appellate Court while concurring with the said judgment and decree dismissed the appeal of the defendants/ respondents vide judgment and decree dated 6-1-2006.
2. Petitioner No,1 and respondent are sister and brother while petitioner No,2 is the son and attorney of petitioner No, 1 . The legacy of Saadat Khan, the father of petitioner No,1 and respondent devolved upon them and Mst. Zarojan their mother and Mst. Marwari their unmarried sister as their Shari share according to Shariat. Mst. Zarojan died in 1993 whose legacy devolved upon petitioner No,1, respondent and Mst. Marwari through Exh.P.W.3/1 entered and attested at the behest of respondent.
On the death of Mst. Marwari in 1999 her legacy devolved upon petitioner No,1 and respondent through Exh.P.W.3/2 entered and attested at the behest of Afsar Ali. Both these inheritance mutations are sub judice herein.
3. Asmat Khan plaintiff/respondent filed a suit for declaration and permanent injunction against Mst. Razia Begum and her son. The petitioners/defendants seeking cancellation of inheritance Mutations No,2333 (Exh.P.W.3/1) and 2669 (Exh.P.W.3/2) attested on 23-2-1993 and 6-8-1999 respectively in favour of defendant/petitioner No,1 as the legacy of Mst. Zaro Jan her mother and Mst. Marwari her sister respectively on the ground that both of the deceased had transferred their shares in the joint property devolved upon them in the inheritance of Sahadat Khan their common predecessor regarding the land bearing Khasra Nos.930, 869, 1497/864/870, 448, 446, 870 and 871 through unregistered Tamleeq Nama/gift deed dated 30-7-1987.
4. The suit was contested by the defendants/petitioners on a number of legal and factual grounds.
On the divergent pleadings of the parties, the trial Court framed the following issues:-- ISSUES;
(1) Whether the plaintiff has got cause of action?
(2) Whether the suit of the plaintiff is time barred?
(3) Whether the plaintiff has come to the Court with clean hands?
(4) Whether the suit is bad for misjoinder of parties?
(5) Whether the suit is based on mala fide?
(6) Whether the suit is maintainable in its present form?
(7) Whether Mst.Zaro Jan/mother and Mst. Marwari/sister, the deceased had transferred before their death, their share through Tamleeq Nama, in favour of the plaintiff?
(8) Whether the attached deed i,e,Tamleeq Nama is forged, fake and fabricated?
(9) Whether the inheritance Mutations Nos.2669 and 2333 were attested due to misunderstanding, and are incorrect baseless and liable to be cancelled?
(10) Whether the possession of plaintiff on the spot is, as per his share and entry of the same in favour of defendant No,1 in the Revenue Record is incorrect and liable to correction?
(11) Whether the defendant No,1 is a lawful owner of the suit property according to the Mutations Nos.2333 and 2669 dated 23-7-1993 and 6-8-99 respectively?
(12) Whether the plaintiff is entitled to decree prayed for?
(13) Relief.
5. Both the parties adduced their respective evidence and at the close of trial after hearing the learned counsel for the parties, the trial Court vide judgment and decree dated 24-3-2005 decreed the suit of the plaintiff/respondent as prayed for which was challenged in appeal before the appellate Court but remained intact as noted earlier vide judgment and decree dated 6-1-2006.
6. This revision petition was admitted to regular hearing inter alia on the grounds that whether unregistered gift deed dated 30-7-1987 neither entered in the revenue record nor established as required under Article 79 of the Qanun-e-Shahadat Order, 1984 and taking possession of the suit property through inheritance Mutations Nos.2333 and 2669 attested on 23-2-1993 and 6-8-1999 respectively which were challenged through the suit filed in March, 2004 was or was not barred by time.
7. Issues Nos. 1, 2 and 7 to. 11 were seriously contested before me. Learned counsel for the defendants/petitioners referred to certain portion of the cross examination of the plaintiffs witnesses and contended that unregistered gift deed dated 30-7-1987 Exh.P.W.2/1 is a fabricated document which was manipulated subsequently to deprive defendant/petitioner No,1 from the legacy of her mother and sister. He referred to the inheritance Mutation No,2333 attested on 23-2- 1993 Exh.P.W.3/1 column-13 of Jamabandi and submitted that the same was prepared at the instance of the plaintiff/respondent who had got no cause of action and the gift deed Exh.P.W.2/1 was manipulated in the back which date was not proved through marginal witnesses. The suit was brought with mala fide intent after the death of alleged donors Mst.Zaro Jan and Mst. Marwari. The alleged gift deed does not contain the Identity Card Number of the donors nor mark of any identification not known by the scriber of the deed. They were identified by one Sultan Mahmood, who was not produced in the witness box. Further contended that delivery of possession to the plaintiff/respondent as donee in consequence of execution of Exh.P.W.2/1 was also not established as the plaintiff/respondent and alleged donors were residing jointly and the plaintiff being the son and brother of the alleged donors was already in possession of their alleged share devolved upon them in the inheritance of their predecessor Sahadat Khan and no overt act of any sort was done to establish the requisite conditions of offer and transfer of physical possession. Further contended that respondent had no cause of action and estopped to bring the instant suit for declaration etc. As on his behest the impugned inheritance mutation Exh.P.W.3/1 was entered and attested. The suit is also barred by time being brought after more than six years from the date of attestation of mutation Exh.P.W.3/1. In support of his contentions, learned counsel placed reliance on the following authorities:-
(i) (PLD 2005 Supreme Court 658) (ii) (2005 SCMR 152)
(iii) (2006 SCMR 1144)
(iv) (PLD 2008 Supreme Court 73)
(v) (2008 SCMR 1384)
(vi) (2008 SCMR 1442).
8. In support of the impugned decree and judgments of the Courts below, learned counsel for the plaintiff/respondent contended that the gift made by lawful owner belonging to Hanfi sect need no registration and even verbal gift is permissible under Muhammadan Law provided the three essential conditions of offer, acceptance and transfer of physical possession are established. The marginal witnesses of the deed had died before the institution of the suit, therefore, only the Scribe of the deed was produced as P.W.2 and he has fully supported the contents of the deed Exh.P.W.2/1.The good relation of the 'plaintiff/respondent with his mother and sister (donors) and providing them shelter, food and protection, they with their free consent gifted their share in the legacy of Sahelat Khan entered and attested in their names in the revenue record. He further contended that every Jamabandi provides fresh cause of action and the defendants/petitioners who had acquired the disputed land on the strength of gift deed Exh.P.W.2/1 the donors were left with no title in the disputed property and it was wrongly devolved upon petitioner No,1 through inheritance Mutations Exh.P.W.3/1 and Exh.P.W.3/2. The cause of action arose to the plaintiff/respondent when petitioner No,2 who is the son of petitioner No,1 started interference in the possession of the plaintiff/respondent as owner and after approaching the revenue record he came to know of the disputed inheritance Mutation which was immediately challenged through the instant suit. In support of his contentions, learned counsel relied on the following authorities:--
(i) (PLD 1975 Peshawar 12)
(ii) (1977 SCMR 154)
(iii) (1987 SCMR 66)
(iv) (1987 SCMR 1403)
(v) (1988 MLD 1640)
(vi) (PLD 1993 Peshawar 127)
(vii) (PLD 1994 Supreme Court 650) (viii). (1995 SCMR 284)
(ix) (1999 SCMR 1328)
(x) (1999 MLD 1687)
(xi) (2001 YLR 2174)
(xii) (2002 CLC 1244)
(xiii) (2002 CLC 1327)
(xiv) (2003 CLC 110).
9. After hearing the learned counsel for the parties and going through the record I found that the plea of oral gift is taken for the first time in this Court. The claim of the plaintiff/respondent as spur out from the contents of the plaint is wholly based upon the unregistered gift deed dated 30-7- 1987 Exh.P.W.2/1, therefore, no issue was framed regarding the oral gift and the plaintiff/respondent cannot be allowed to take a plea which was neither taken in the trial Court nor in the lower Appellate Court as under section 115 of the Civil Procedure Code in its revisional powers of this Court only it is to be seen whether the impugned judgment and decree is the result of misreading or non-reading of the evidence led by the parties or any other legal infirmity or jurisdictional defect, therefore, no new plea or case can be made out at revisional stage.
10. It is well established principle of administration of justice that it is a primary duty of the plaintiff to substantiate the averments of the plaint through cogent evidence, there after the defendant would adduce evidence in rebuttal. It is also well established principle that it shall be the burden of the beneficiary of any document to establish its genuineness. There is no dispute B on the assertion that a Muslim belonging to Hanfi sect can make a valid gift of his title even orally in favour of an heir but up to /3rd even without executing any document but once a gift is reduced into writing its registration under the Registration Act is must when the value of the subject matter is exceeded Rs,100. In the instant case the gift was made through a written instrument Exh.P.W.2/1 and since the plaintiff/respondent is the beneficiary of the said document was required to establish its genuineness through cogent evidence. In the discharge of his said burden he produced one lbadullah Khan, Patwari Halqa as P.W.1. Who has produced the revenue record of the disputed property from 1968-69 up to 1996-97. The inheritance Mutation No,2333 Exh.P.W.3/1 reveals that in the column No,13 for the disbursement of legacy of Mst. Zaro Jan was prepared at the instance of plaintiff/respondent on 7-2-1993 and it was finally attested on 23-2-1993 when Liaqat Ali, son of Sultan Mehmood and Syed Zakir Shah son of Ahmad Shah the legacy of Mst. Zaro Jan was mutated in the name of the plaintiff/respondent being son two shares and petitioner No,1 Mst. Razia Begum and her sister Mst. Marwari were granted one share as daughters. Had there been a valid gift in favour of the plaintiff/respondent he was required to agitate the same at the time of preparation of inheritance Mutation Exh.P.W.3/1. The legacy of Mst.Marwari was devolved upon the plaintiff- respondent two shares being brother and petitioner No,1 one share being her sister. This mutation was attested on 6-8-1999 and once again the factum of gift in his favour was not agitated by the plaintiff/respondent. The suit in hand was instituted on 24-5-2000 in the civil court after seven years of the inheritance mutation Exh.P.W.3/1 while the law provides maximum period for declaration against the denial of title or against wrong entries in the revenue record six years. It is also pertinent to mention here that the plaintiff/respondent never challenged Exh.P.W.3/1 in the revenue hierarchy although the said inheritance mutation disclosing the legal heirs of Mst. Zaro Jan by the plaintiff himself as is evident in the column 13 of the said mutation Exh.P.W.3/1. It appears that the plaintiff/respondent was waiting for the death of all concerns and a forged, fictitious, fabrication and manipulated document in the past date was prepared and the same was made basis for bringing the suit against valid inheritance mutation to deprive petitioner No,1 from her Shari share in the legacy of her mother and sister.
11. Though the deed regarding immovable property worth more than Rs,100 is compulsory registerable but deed Exh.P.W.2/1 was never produced for registration nor it was produced to the revenue authorities for incorporation in the revenue record. The explanation offered by the plaintiff/respondent in his deposition is that due to financial weakness he did not produce the same for registration or incorporation in the revenue record but the explanation is not convincing as plaintiff in the witness box as P.W.3 has said that he filed the suit for giving effect to the gift deed Exh.P.W.2/1 in the revenue record. In this way, he has contradicted his stance in plaint wherein it was alleged that in view of the interference of petitioner No,2, he approached the civil Court for requisite declaration and consequential relief. The suit was brought after the death of Mst. Zaro Jan mother of the contestant parties and Mst.Marwari sister of the contestant party. Mst. Zaro Jan died in some where in 1992-93 while the gift deed was allegedly executed on 30-7-1987 and during this period the plaintiff/respondent did no overt act to assert a gift deed in his favour and the suit was filed after the death of two alleged donors. The disputed gift deed though contained the thumb impression of the alleged donors with no Identity Card Numbers or mark of identification the plaintiff could establish the genuineness of the thumb impression of the alleged two donors by sending it for verification through comparison to the Finger Print Expert with the undisputed thumb impression of the said alleged two donors but no such attempt was made. The gift deed bears the signature of two marginal witnesses but none of them was produced in the witness box nor was their death asserted while submitting the list of witnesses or during the course of plaintiff evidence.
In his list of witnesses the plaintiff/respondent mentioned the name of Sher Zaman one of the marginal witness but he was not produced. Taj Malook, Murad Khan and Hayat Khan are also mentioned in the list of witnesses but apart from Patwari Halqa and Petition Writer no other person was produced in the witness box. After appearing himself in the trial Court as P.W.3 and producing Patwari Halqa and Scribe of the deed as P.W.1 and P.W.2, the plaintiff/respondent has closed his evidence on 14-4-2004. The scribe of the deed while facing the cross examination has stated that two donors were not known to him and they were identified through Sultan Mehmood. The name of said Sultan Mehmood is neither mentioned in the list of witnesses nor he was produced in the witness box. He further stated that deed Exh.P.W.2/1 is duly entered at Serial No,1093 in his Register on 1-8-1986 and it was his practice that he used to scribe the deed and after getting its photo copy the contents are entered in his register maintained for the purpose. The authenticity of the entry in the register is highly doubtful in the circumstances that some of the entries in the said Register were not in his own handwriting. As regard entry at Serial No,986 he expressed ignorance regarding the handwriting and submitted that he used to incorporate the contents of deed in the register through any literate person. However, the deed is allegedly scribed by him personally. A number of pages in the register were admitted to be blank. Pages Nos.964, 965, 1001, 1021, 1035, 1046, 1054, 1063 and 1073 were found blank. The said Register also does not contain the page numbers. However, he denied that he used the blank pages for scribing fictitious/manipulated documents in the past date. The alleged donors were not known to him and he conceded that executant of a deed was identified through marginal witnesses of the deed. He did not ask for mark of identification nor did he ask their relationship with the plaintiff/respondent donee. The description Hof the gift property was ascertained though fard Jamabandi. However, there is no mention of the said Jamabandi or its period in the gift deed Exh.P.W.2/1, the alleged donors were deposed to have sit at a distance from his place near the boundary wall of Tehsil building. Against the deposition of the plaintiff/respondent P.W.2 has given an explanation that the need of execution of the deed Exh.P.W.2/1 was felt because its subject matter was already mortgaged with Agricultural Bank and the revenue staff refused to enter and attest the gift mutation.
12. The plaintiff/respondent has not discharged his burden to establish the averments of plaint and the evidence produced by him is deficient to hold he impugned gift deed Exh.P.W.2/1 as genuine document. Though the learned counsel for the respondent/decree holder forcefully argued that a valid gift can be effected orally under Muhammadan Law and has produced case-law as well but as recorded earlier that party to the suit cannot be allowed to deviate from the stance taken in plaint or written statement at revision stage, but if stance taken is allowed even then the respondent/decree holder cannot establish verbal gift from record. There is no evidence of offer by alleged donors nor acceptance nor transfer of possession as consequence of gift.
13. The trial Court of Civil Judge has put the burden of proof on the plaintiff regarding Issue No,7 but the same was answered in positive despite deficient evidence. Regarding issue No,8 which burden was placed on the defendants/petitioners was answered in negative although the sole witness of the plaintiff/respondent who was Scriber of the deed and produced as P.W.2 and his deposition was shattered in the cross examination. Neither the Register maintained by P.W.2 contained the entry of the deed Exh.P.W.2/1 is believable nor his evidence is sufficient to hold that the deed Exh.P.W.2/1 was in ,fact thumb impressed by the alleged two donors/executants for want of their Identity Card Numbers or mark of their identification or being personally known to him and the identifier of the two donors/executants was never produced and one of the marginal witness whose name appears in the list of witnesses was never produced by the plaintiff/respondent and no 2 inability of their production in the witness box was stated while appearing as P.W.3.
14. In case reported as 2006 SCMR 1144 (Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others) relied upon by the learned counsel for the petitioner, it was held that defendants (the donees) were to prove their predecessor-in-interest has validly gifted the suit property in terms of disputed gift deed but the defendants produced neither any marginal witness of the gift deed nor its scribe and even the person who identified the predecessor-in-interest was also not produced, thus it was held that defendahts had failed to prove their case. It was further held that the trend of cross-examination of plaintiffs indicates that relations between donor and excluded son were cordial. No circumstance was brought on record to indicate that the relations were strained to warrant interference or the donor had any tenable reasons to exclude father of plaintiffs from inheritance. In the case in hand, the respondent-decree holder did not produce the marginal witness or identifier of the donors in the witness box to face cross-examination of the petitioners, who were allegedly excluded to get share in inheritance. There is also nothing on record to suggest that the relations between the mother and sister of petitioner No,1 were strained then why they were to be excluded from getting their shari share on the death of alleged donors.
15. In case reported as 2008 SCMR 1384 (Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others) relied upon by the learned counsel for the petitioners, it was held that registration of a gift deed carries a presumption but no presumption can be drawn there from that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. It was further held that all the four donors who were simple villagers, Pardanashin ladies and according to the custom had never appeared in public, had taken plea of fraud and one of them had stated that they were made to thumb-mark on the documents which were presented to them to be in another connection and question arose of their making gift in favour of the alleged donors. Also held that gift deed executed by Pardanashin ladies, the following points in three ingredients of gift are to be taken into account.
(i) Whether the plaintiff had any friendly advice before executing the deed and by a person whom the court considers as being genuinely interest in her welfare?
(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?
(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(iv) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
' In the present case, the scribe P.W.2 has stated in unequivocal terms that the two ladies (donors) were not known to him and they were sitting near the boundary wall of the courts when he entered the gift deed Exh.P.W.2/1 in his register. There is nothing on record to show that the alleged donors had any friendly advice to gift their entire holding to the plaintiff-donee or that the donors had the capacity of understanding the consequences. The plaintiff has failed to discharge their burden to establish a genuine gift in his favour.
16. In case reported as 2005 SCMR 152 (Anwar Ahad v. Mst. Nafis Bano through legal heirs), non- production of marginal witness of the deed due to death was considered and it was held that for execution of document, non-production of marginal witness on mere assertion of their death without calling for secondary evidence was found fatal to draw influence against the parties who relied upon the document. In the present case, one of the marginal witness mentioned in the list of witnesses indicate that he was alive but not produced and no secondary evidence was adduced even if the marginal witnesses were in fact dead at the time of examination of plaintiff's evidence.
17. In case reported as 2008 SCMR 1442 (Muhammad Ashraf and others v. Mst. Sairan Bibi through L.Rs and others), it was held that when plaintiff denied the execution of gift deed in favour of defendants and the defendants failed to produce any marginal witness of the deed and the scribe of the deed admitted in evidence that he did not know the donor personally. The court was found justified in not acting upon the alleged gift deed. In the present case, despite inability of the plaintiff-decree holder to produce marginal witness of the gift deed and admission of the scribe that the donors were not personally known to him but the courts below have decreed the suit of the respondents on the basis of gift deed Exh.P.W.2/1 which was not proved through marginal witnesses and production of identifier of the donors.
18. In case reported as PLD 2005 Supreme Court 658 (Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai), it was held that beneficiaries of the documents executed by ignorant/illiterate/Pardaobserving ladies, have to prove by overwhelming evidence, the execution of such documents by such ladies and they have to further prove that such transaction and such documents were explained to the executants who had independent advice at the relevant time.
The illiterate Pardanashin ladies are entitled to the protection of law governing such ladies and the courts were to be conscious enough in recording finding as to the execution of any such deed by Pardanashin ladies and it would not be sufficient to show that document was read over to the Pardanashin ladies but it must be proved that she understood its nature and effect. In the present case, no concern was observed by the two courts below in granting decree to the respondents on the basis of unregistered/unproved gift deed Exh.P.W.2/1.
19. In case reported as PLD 2008 Supreme Court 73 (Allah Diwaya v. Ghulam Fatima), 1977 SCMR 154 (Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others) and 1999 MLD 1687 (Mst. Hamida Bibi v.
Wali Muhammad) wherein it was held that gift deed was not compulsorily registerable it could be effected even orally or under its unregistered instrument. As it is observed in the preceding paras that it was not the case of plaintiff- respondent that the subject-matter of dispute was gifted to him orally rather it was asserted that the donors who are equally related to the plaintiff and petitioner No,1 transferred their entitlement through unregistered instrument but its genuineness was not established through marginal witness of the deed.
20. In case reported as 2002 CLC 1244 (Ghulam Siddique v. Mst.Ajaib and others) relied upon by the learned counsel for the respondent/decree holder it was held that onus was on the plaintiff to prove by positive evidence that the disputed receipt was forged and fabricated. In the instant case, the plaintiff failed to discharge his burden to establish the genuineness of document Exh. P. W.2/1 and in rebuttal, the petitioners-defendants have brought sufficient evidence from mouth of plaintiff's witnesses to disbelieve the alleged gift deed Exh.P.W.2/l.
21. In 2003 CLC 110 (Abid Hussain v. Mst. Kalsum) it was observed that generally transfer of property by way of gift takes place in favour of donee by donor out of love and affection or because of the services sincerely rendered to the donor by the donee and the concurrent findings in favour of plaintiff, who had challenged a gift mutation allegedly executed by her in favour of defendants was concurrently decreed and the High Court did not interfere in the said finding. In the case in hand, the unregistered/unproved gift deed Exh.P.W.2/1 was made basis for grant of decree in favour of respondent and there is no evidence that the alleged donors had any ill will towards the petitioners real daughter and sister or donors. It is an admitted fact that the donors who were found in advance age as stated by the scriber were living with the plaintiff/respondent and their property devolved upon them from their predecessor Saadat Khan remained in his possession and utilization so they were provided shelter and necessities of life in consideration of utilization of their land. No special love and affection were either agitated by the plaintiff or established through evidence.
22. In case reported as 2002 CLC 1327 (Muhammad Malik and 3 others v. Mst. Rasool Bibi and 6 others), the dispute was regarding registered gift deed which is not an issue in the case in hand. In case reported as PLD 1994 Supreme Court 650 (Noor Muhammad and another v. Habibullah Khan and 27 others) gift during "Marz-ul-Maut" was examined which is not an issue in the present case.
In 1995 SCMR 284 (Wali and 10 others v. Akbar and 5 others) it was held that suit for declaration is governed by Article 120 of Limitation Act, 1908 and the starting point of limitation was the date when right to sue accrued. In the present case, the legacy of mother of petitioner No,1 and respondent/ decree holder was entered at the behest of respondent/decree holder as evident to show from column 13 of Jamabandi Exh.P.W.1/1 and was attested on 23-2-1993 whereby the gift in favour of respondent was denied but the suit was brought on 24-5-2000 beyond the prescribed six years period.
23. In PLD 1993 Peshawar 127 (Atta Muhammad v. Nasir-ud-Din) it was held that wrong entry in Jamabandi would give a fresh cause of action for filing a suit for declaration or correction or wrong entry to be filed within six years. The plaintiff/decree holder cannot get benefit of these findings as the inheritance mutation was entered by the respondent/plaintiff himself and the property owned by their mother as per revenue record was devolved upon all her legal heirs including petitioner No,1 as his daughter.
24. In 2001 YLR 2174 (Mst. Faiz Elahi v. Muhammad Anwar) of Lahore jurisdiction is not relevant. In 1987 SCMR 66, inheritance mutation was challenged after 24 years which was though decreed by the trial Court but the same was dismissed in appeal on the ground of limitation. The Hon'ble Supreme Court in the circumstances of the case held that the lady plaintiff being an illiterate widow and remained in possession throughout was not in the knowledge of sanctioning of mutation in her absence but in the present case the inheritance mutation was entered at the information of plaintiff who is male and cannot be extended the benefit of cited judgment. The same principle was also followed in 1999 SCMR 1328 and it was held that no limitation would run against female plaintiff and that wrong mutation would confer no right of property.
25. In 1987 SCMR 1403 it was held that no writing of a gift is required if made by a Muslim and only declaration of the gift by donor, acceptance by the donee and delivery of possession as consequence of gift would be sufficient. In PLD 1975 Peshawar 12, the same principle has been applied and it was held that unregistered gift deed in favour of Muslim donee is admissible in evidence but subject to establishing its genuineness through marginal witnesses.
25. In 1988 MLD 1640 (The Southern Gas Company Ltd v. Messrs Karim Silk Mills Ltd.), presumption envisaged in Article 118 of Qanun-eShahadat, 1984 and interpretation of Articles 61, 72, 73 and 78 were discussed. The plaintiff/decree holder was required to substantiate through the forger print expert the genuineness of thumb impression of the donors by making a comparison of the same with their undisputed thumb impression as both the donors had passed away earlier than the institution of suit. In PLD 1976 Karachi 316 (Mir Haji Ali Ahmad Khan Talur and 9 others v. Government of Sindh and 2 others), an elaborate judgment was delivered that how to establish a gift as genuine document.
26. After . Discussing the evidence of the parties and case-law produced by the learned counsel for the parties, I found that the trial Court has wrongly decided Issues Nos. 1, 2 and 7 to 10 and thus due to misreading and non-reading of evidence, the plaintiff respondent was granted decree as prayed for under Issue No,10. Though the Appellate Court has concurred with the finding of the trial Court but with no speaking judgment and the appeal of petitioner was dismissed in cursory manner, thus it is held that neither the Appellate Court has gone through evidence of the parties nor thoroughly scrutinized finding of the trial Court, therefore, the impugned judgment is found not qualified to be a concurrent finding of fact.
27. The crux of the aforesaid discussion, this Revision Petition is accepted, the impugned judgments and decrees of the two courts below are set aside and the suit of the plaintiff/respondent is dismissed with costs throughout.