' ASAD MUNIR, J.--- The facts relevant for the disposal of this 'writ petition are that land measuring 57 kanals and 8 marlas, bearing Khasra Nos. 1021, 1028, 1029, 1029 min, 1032, 1032 min, 1053, 1054 min and 622, situated in mauza Jawad Singh Wala, Tehsil and District Kasur, was jointly owned in equal shares by two brothers Hidayat and Bagga each of whom, therefore, owned 28 kanals, 9 marlas of land. By means of hiba made in September, 1990, Hidayat gifted his share of 28 kanals, 9 marlas to his daughter, respondent No,1, Aziz Bibi, whereafter Mutation No,229 dated 11-10-1990 was also sanctioned in favour of respondent No,1. Bagga died leaving behind the petitioner and respondents Nos.3 to 6, who filed a suit for declaration with consequential relief against Hidayat, respondent No,1, respondent No,2 and respondent No,3, asserting therein that they had remained in possession of the land in dispute wherefor no delivery of possession had taken place to constitute a valid hiba under Islamic Law in favour of respondent. No,l. In line with their stand in the plaint, the petitioner and respondents Nos.3 to 6, prayed as under:--- "It is, therefore, respectfully prayed that a declaratory decree with costs may kindly be granted in favour of the plaintiffs and against the defendants declaring the Hibba made in September, 1990 to be illegal, void, collusive and based on fraud and to be ineffective on the legal, ownership and possessory rights of the plaintiffs and consequential relief in shape of permanent injunction restraining the defendants from interfering in possession of the plaintiffs as such."
2. In their written statement, Hidayat and respondent No,1 asserted that the petitioners along with respondents Nos.3 to 6 were the joint owners to the extent of half of the land and their possession over the entire land was joint and that Hidayat, being owner of one half of the joint land, had gifted his share of the land through Mutation No,229 to his daughter, respondent No,
1. Along with the written statement, Hidayat and respondents Nos.1 and 2 filed, an application under Order VII, Rule 11, C.P.C., for rejection of the plaint on the ground that admittedly Hidayat, being the owner of one half of the land, had every right to alienate his property in any manner whatsoever and that the petitioner along with respondents 3 to 6 had no cause of action, right or locus standi to challenge the gift made by Hidayat in favour of respondent No,!. The learned Civil Judge, Kasur, vide order dated 25-2-2005 rejected the application on the ground that the controversy between the parties could not be decided without giving a finding on delivery of possession which required recording of evidence. Against order dated 25-2-2005, an appeal, filed by Hidayat and respondents Nos.1 and 2, has been allowed vide Additional District Judge Kasur's judgment dated 5-7-2005 along with special costs of Rs,5,000 with the result that the plaint has been rejected under Order VII, Rule 11, C.P.C. The learned Additional District Judge Kasur's judgment dated 5-7-2005 has been assailed by the petitioner only through this writ petition wherein Hidayat is not cited as a respondent as he has passed away and is survived by respondents Nos.1 and 2 as his legal heiRs,
3. Learned counsel for the petitioner has contended that the learned Additional District Judge in exercise of his powers as a revisional court had no jurisdiction to reject the plaint under Order VII, Rule 11, C.P.C. And in support of his contention has referred to Mst. Bilqees Begum v. Haii Ghulam Rasool (1994 CLC 2296). It was further contended that the hiba made in favour of respondent No,1 was dependant upon delivery of possession which was a question of fact as could only be resolved in the light of the evidence which was required be produced. In this regard, reference was made, to Messrs Sunley Developers (Private) Ltd. v. Messrs Umari Associate and three others (2009 CLC 708) where it was held that the trial court had rightly dismissed the application under Order VII, Rule 11, C.P.C., as none of the pleas raised therein could be determined without recording of evidence.
Learned counsel for the petitioner also cited Zakariya M. Fazil v. Messrs United Bank Limited Karachi (1997 CLC 705) wherein it was held that while adjudicating upon an application under Order VII, Rule 11, C.P.C., only the averments made by the plaintiff made in the plaint can be looked into for the rejection of a plaint and a plea raised by the party in defence cannot be considered. It is also contended that the plaint could not be rejected as the disputed land was in possession of the petitioner and respondents Nos.3 to 6 who were claiming adversely to the donor, Hidayat.
4. Learned counsel for the respondents while supporting the impugned order has objected to the maintainability of the writ petition on the ground that it is not the case of the petitioner that the learned Additional District Judge has acted without jurisdiction or in violation of any law laid down by the superior courts. Reference has been made to Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 5221) and Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139). In the latter case, the Hon'ble Supreme Court while interpreting the expression without lawful authority and of no legal effect has laid down that the expression refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law.
5. I have given due consideration to the arguments advanced by the learned counsel for the parties and have also with their assistance perused the relevant record.
6. As is evident from the prayer made in the plaint, the title or ownership of Hidayat in respect of the disputed land, measuring 28 kanals, 9 marlas, was not challenged but what was challenged was the hiba made by him of his share through Mutation. No,229 dated 27-8-1990, in favour of his daughter, respondent No,1. The jamabandi for the year 2000-2001 attached with the plaint also shows that the petitioners are the joint owners of the land wherein they own one half A share i.e. 28 kanals and 14 marlas while the remaining half stands in the name of respondent No,2. Learned counsel for the petitioners during the course of arguments has also not disputed the ownership of Hidayat but has only objected to the legality and validity of the gift of the land in dispute made by him to respondent No,1. Thus, admittedly, there is no dispute that Hidayat was a joint owner with one half share in 57 kanals, 8 marlas of land which was in possession of the petitioner and respondents Nos.3 to 6.
7. The question which arises for determination is if the petitioner and respondents Nos.3 to 6 have any right, cause of action or locus standi to question the hiba made by Hidayat in favour of respondent No,2 on the ground that the possession of the disputed land had not been delivered by the donor to the donee as the petitioners were admittedly in possession of the disputed land. It is admitted position of law that during the life time of the donor, no person except a donor has any right to challenge the hiba even if such person is in possession of the land which is the subject-matter of the hiba. In support, reference may be made to Fazal Ahmad v.
Rakhi (PLD 1958 Lahore- 218) wherein it was Observed by B.Z. Kaikaus J, as under --- "As an ordinary rule of Muslim Law a gift is to be'followed by delivery of possession, that is, don& is to deliver to the donee whatever possession he has, but the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee."
8. In another case Muhammad Bukhsh and others v. Hosseni Bibi and others (1 L R 15 Cal. 684), a hiba was held to be valid by the Privy Council even though the donor had gifted the property but had not transferred its possession at all as she herself was not in possession. It was held by the Privy Council, while following the rule laid down in Kali Das Mullick v. Kanhaya Lal Pundit and others (I L R 11 Cal. 121), that where the donor supports the gift, the person who disputes it claiming adversely to both the donor and the donee, the gift is not invalid for the mere reason that the donor has not delivered possession of the subject matter of the gift.
9. In the instant case; there is no need to record any evidence as there is no dispute as to the non- delivery of possession as admittedly the possession of the land in dispute had remained with the plaintiffs and could not have been delivered by the donor to the donee at the time the hiba was made. However, in the light of the afore-mentioned authorities, there is no doubt that the absence of delivery of possession does not invalidate the hiba as the donor, Hidayat, who is also the owner of the land in dispute, has given his full support to the hiba in his written statement as well as though the application under Order VII, Rule 11, C.P.C. For the rejection of plaint which was accepted vide impugned judgment passed in revision. It also follows that the petitioner along with respondents Nos.3 to 6 were vested with no cause of action, right or locus standi to object to or challenge the hiba made by late Hidayat in favour of respondent No,1 despite being. In possession of the land in dispute. It is not surprising that it is only the petitioner who has filed this writ petition while respondents Nos.3 to 6 appear to have accepted that they have no cause of action, right or locus standi to object to the hiba in question.
10. The plea that a revisional court has no jurisdiction to reject a plaint is also devoid of any merit. It is settled law that an order for rejection of plaint by the trial court is appealable while an order refusing to reject a plaint is subject to revision where the trial court has refused to exercise its jurisdiction under Order VII, Rule 11, C.P.C., to reject a plaint barred by law or for failing to disclose a cause of action. Here, one may draw support from Mian Muhammad Akram and others v.
Muhammad Rafi (1989 CLC 15) and Atta Muhammad Khan and another v. Lasbela Cement Limited (1999 CLC 1795) wherein it was held that the powers of the trial court and those of the revisional court are coextensive and where the trial court has refused to reject the plaint, the revisional court can order rejection of the plaint. I find that Mst. Bilqees Begum v. Haji Ghulam Rasool (1994 CLC 2296), relied upon by the learned counsel for the petitioner, is distinguishable as it did not involve rejection of plaint by the revisional court after such rejection had been refused by the trial Court.
11. In view of the discussion in paras 7 to 9 above, the impugned order passed by the revisional court can by no means be regarded as void, coram non judice or without jurisdiction which' is the sine qua non for invoking the constitutional jurisdiction of this Court as has been laid down in Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322). In the circumstances, I would agree with the learned counsel for the respondents Nos.1 and 2 that the writ petition is not maintainable as the revisional court's impugned judgment falls within the scope of its powers under section 115, C.P.C.
12. Another argument advanced by the learned counsel for the petitioner is that the plaint could not be rejected as the disputed land was in possession of the petitioner and respondents Nos.3 to 6 who were claiming adversely to the donor. A reading of the plaint does not disclose any such claim as the ownership of Hidayat has never been challenged but only the hiba made by him to respondent No,1 has been challenged for non-delivery of possession. As such, the petitioner's plea of adverse ownership is untenable. An application under Order VI, Rule 17, C.P.C., has also been filed to introduce the plea of joridar ownership of Bagga and Hidayat. However, such a plea merits no consideration as it is totally inconsistent with the stand taken in the plaint and sets up a new case. Lastly, it was pleaded by the learned counsel for the petitioner that the revisional while rejecting the plaint has not confined itself to the contents of the plaint but has looked outside the plaint. In the face of the admitted fact as to the ownership of Hidayat to the extent of 28 kanals and 14 marlas, which was also borne out by the jamabandi attached with the plaint, there is no basis to take exception to the rejection of the plaint. In any case, it has to be said that the rule has undergone a change and even material outside the plaint or produced in defence can be considered while rejecting a plaint in view of the dicta laid down by the honourable Supreme Court in Nazir Ahmad v. Ghulam Mehdi (1988 SCMR 824) and Muhammad Akhtar and others v. Abdul Hadi and others (1981 SCMR 878). Needless to state that the said authorities have to be followed even though Zakariya M. Fazil v. M/s United Bank Limited Karachi (1997 CLC 705), cited on behalf of the petitioner, appears to suggest otherwise.
13. In the light of the foregoing discussion, There is no reason to interfere with the impugned judgement whereby the plaint has been rightly rejected for failing to disclose' any cause of action or any right to sue.
Accordingly, the writ petition is dismissed leaving the parties to bear their own costs. .