MAZHAR ALAM KHAN MIANKHEL , J.--- The petitioner, being aggrieved of the judgment and decree dated 16-9-2010 of Additional District Judge-V, Kohat whereby her appeal against the judgment and decree dated 16-9-2010 of Civil Judge-X, Kohat was dismissed, has impugned the above said concurrent findings of the two Courts below through instant petition.
2. The predecessor of respondents Nos.1 to 8, namely Shah Mehmood, had filed an eviction petition against the petitioner before the Rent Controller, Kohat for her eviction from a Balakhana No, 226, Mohallah Sikandar Khan, Kohat City on the ground of non-payment of rent and personal need. The petitioner had denied the relationship of landlord and tenant, which resulted into framing of a preliminary issue. After recording evidence, the ejectment petition was dismissed as the relationship of landlord and tenant was not in existence. The predecessor of respondents filed an appeal before the District Judge, which was allowed and the petitioner was directed to vacate the premises within three months. The petitioner assailed the above judgment of the appellate Court through Writ Petition No, 741 of 2000, which was decided on 7-5-2002. The writ petition was allowed as the relationship between the parties was declared as that of a licensor and the licensee and not of a landlord and tenant. It was held that a licensee cannot be ejected from the suit premises in proceedings under the West Pakistan Urban Rent Restriction Ordinance. The proper remedy for the owner of property against a licensee is a civil suit for possession. The predecessor of respondents was, therefore, directed to have recourse to other remedies permissible under the law.
In the light of above judgment of this Court, the predecessor of respondents brought the instant suit for possession against the petitioner, which was decreed by the trial Court and the appeal of petitioner was also dismissed by the appellate Court.
' The learned counsel for the petitioner contended that findings of the Courts below are not in accordance with law as the very suit of respondents for possession simplicitor was not maintainable without asking for declaration of their rights in the suit property by way of gift. The onus of proof was on the respondents to have proved the transaction of gift but neither the ingredients required for proving the transaction of gift were asserted nor the same were proved.
Admittedly, the possession of the suit property was not delivered to the respondents and the Courts below have wrongly admitted the ownership of respondents only on the basis of an alleged registered deed. The suit of respondents was further bad for mis-joinder/non-joinder of necessary parties, as the minor son of petitioner namely Ishtiaq was not impleaded in the suit. Similarly, the respondents have sold the suit property to another person, who was also not made a party to the suit. The learned counsel in support of his arguments placed reliance on the cases of Ashiq Hussain and another v. Ashiq Ali (1972 SCM R 50), Mst.Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCM R 818), Mst. Bandi V. Province of Punjab and others (2005 SCM R 1368), Asif Raees Ahmad v. Mst.Zubaida Bibi and another (2005 YLR 2761) and Haji Allah Bukhsh and others v. Muhammad Yar and others (2007 M LD 601).
3. On the other hand, the learned counsel for the respondents argued that as per decision of this Court in Writ Petition No, 741 of 2000, which was duly made as part of the record, the status of petitioner was declared as that of a licensee under the Easements Act and the predecessor of respondents was declared as owner of the suit property. The respondents have duly proved the factum of gift through oral as well as documentary evidence and the suit property being not an inherited property, the son of petitioner was not a necessary party. Similarly, the suit property was sold by respondents after the decree passed by the Civil Court in their favour, hence no question of the impleadment of new vendee was arising at .That time. The learned counsel in support of his arguments placed reliance on the cases of Fazal Hanan v. Mukarram Jan and others (2007 CLC 894) Gauhar Rehman v. Jan Ashbi and another (1990 SCM R 1586), Saida v. Pinnu and another (PLD 1979 SC (AJ&K) 245), Habibullah Jan and others v. M. Hassan. Khan and others (1991 M LD 25), Niaz Warjan v. Gul Nawaz 2007 YLR 1723, Allah Dad V. Mehmood Shah (1990 CLC 33), Sahibzada Muhammad Salim and another v. Mst. Bibi Zuhra and others (1996 M LD 1409) and Pardool and 3 others v. Gulzada and others (PLD 1995 SC 410).
4. The learned counsel for the parties were heard and record of the case was perused.
5. As per record, the suit property was originally the ownership of one Laiq Shah, paternal uncle of Shah Mehmood (predecessor in interest of respondents). Said Laiq Shah through a registered General Power of Attorney bearing No,44 dated 9-9-1961 had authorized his brother Rafaqat Ali Shah (father of Shah Mehmood, plaintiff) to act on his behalf as general attorney to look after his properties and for alienating his property by way of mortgage, sale, exchange, gift etc. The father of Shah Mehmood in view of above Power of Attorney disposed of the property in favour of Shah Mehmood, his own son, by way of registered gift deed No,172 dated 14-12-1981, Exh.P.W.1/1. The petitioner is the step-mother of Shah Mehmood, the plaintiff and Ishtiaq is his stepbrother. The petitioner's oral assertion is only to the effect that the suit balakhana was given to her by her husband. However, she could not either produce documentary proof in this regard or to prove that the property was ownership of her husband Rafaqat Ali Shah or for that matter it was an ancestral property of the two brothers, Laiq Shah and Rafqat Ali Shah. The onus to prove this fact was on the petitioner but she failed to discharge the same in her evidence. The petitioner even in his reply to ejectment petition had not claimed her ownership on the basis of any document. As against that, the predecessor of respondents through cogent evidence not only had proved his title over the suit property in the ejectment proceedings but in the instant suit too has proved his ownership through overwhelming evidence available on file. The alleged claim of ownership of the petitioner in the ejectment proceedings was categorically turned down and Shah Mehmood was acknowledged as owner on the basis of evidence on record. This Court in its judgment delivered in Writ Petition No,741 of 2001 has dealt with this aspect of the case as under:-- "From the registered gift deed and the entry in the register maintained by the Excise and Taxation Office, which had gone unchallenged, it is clear, at least for the purpose of rent proceedings, that Shah Mahmood was the owner of the property. Mst. Shahnaz Begum has not disputed that the property originally belonged to Laiq Shah, uncle of Shah Mahmood. The property was therefore not owned by Rafaqat Ali Shah. Thus neither Rafaqat Ali Shah had the right to allow Mst. Shahnaz Begum to continue to reside in the property or to alienate it in her favour nor could the son of Mst.
Shahnaz Begum inherit part of it. It may be stated that the question of inheritance by Ishtiaq Hussain was taken for the first time in the evidence and no suit has been filed on behalf of the child to claim the property on the basis of inheritance. Mst. Shahnaz Begum has therefore not created a serious or genuine doubt regarding the title of Shah Mahmood to the property. It may be clarified that these findings are relevant for the purpose of the rent proceedings only."
' The respondents in the instant proceedings too, relied upon the same evidence, i,e, registered gift deed bearing No,172 reproduced in Register No,1 Volume No,212 at Page-89 dated 14-12-1981, extract of the same as Exh.P.W.1/1 whereas the copy of original registered deed, Exh.P.W.1/2, Power of Attorney, Exh.P.W.1/D-1 attested on 9-9-1961, permission for re-construction of house/shops, extract from register maintained by MC, Kohat dated 23-12-1985, Exh.P.W.3/1, sanction granted to predecessor of respondents for reconstruction of talakhana', Exh.P.W.3/2, PT-1 regarding payment of property tax, Exh.P.W.4/1 and extract from relevant register of the Excise Department showing possession of the predecessor of respondents on the suit premises since the year 1987, Exh. P.W.4/2.
The petitioner again failed to create any doubt in the veracity of aforesaid documents. The only contention of the petitioner, as raised by learned counsel in the arguments, was that the registered deed being a gift deed was required to have been proved by producing witnesses of the offer and acceptance as well as delivery of possession etc. So far as the question of possession is concerned, the same is duly answered in rent proceedings. The petitioner's occupation of the suit 'balakhana' was declared as that of a licensee under the respondents and in such circumstances physical possession of respondents was neither possible nor necessary. It is also well settled that gift without delivery of possession can only be impeached by a donor and not by a third person as well as a person claiming hostile possession against donor and donee. It is an established fact that the property in dispute was not owned by husband of petitioner, Syed Rafaqat Shah. He was the attorney of the original owner Syed Laiq Shah. Had he been the owner of the property then the question of validity of gift and inheritance of the property would have been the valid and legal one but when he was mere an attorney of the original owner, then no question of entitlement of petitioner or any other legal heir of said Syed Rafaqat Ali Shah would arise. Similarly, in the given circumstances the petitioner or any other legal heir of Syed Rafaqat Shah the attorney are bereft of locus standi to question the validity of the gift.
6. No doubt that there are some discrepancies and deficiencies in the evidence led by the parties like no date of death of Laiq Shah. But the same would have no direct bearing on the merits of the case. Yet another aspect also creates a sense of doubt regarding the validity of gift in favour of a son by a father, who was attorney of the original owner, as was held in the case of Asif Races Ahmad v. Mst. Zubaida Bibi, (2005 YLR 2761). But that too would not yield any benefit to the petitioner as she or any other legal heirs of the above named attorney had no locus standi and the validity of the said gift was also not challenged by any competent person having any legal right in the property. So, the case-law relied upon by the learned counsel for the petitioner would not be applicable in the circumstances of the case.
7. So, the arguments of the learned counsel for the petitioner being misconceived are not worth acceptance. Though decision in this case was deferred on 15-4-2011 as the case file had revealed that the step-brother of the plaintiff and son of the present petitioner had filed a declaratory suit against the respondents after overcoming the legal disability by attaining the age of majority, so the case was fixed for further arguments to determine the effect of that suit on the suit in hand but today the learned counsel for petitioner could not offer any plausible reply, so decision in this case can hot be delayed further. Since suit of the son of the petitioner is pending adjudication before a competent Court of law, instead of discussing the merits of the case, propriety demands that the same be dealt with by the said court itself.
8. The learned counsel for the petitioner was unable to make out a case for interference within the frame work of section 115 of C.P.C. So, in absence of any misreading or non-reading of evidence or jurisdictional defect in the concurrent findings of facts of the two courts below, this Court cannot intervene in exercise of its revisional jurisdiction. Hence this revision petition, being meritless, is hereby dismissed as such with no order as to costs.