TARIQ JAVED, J. - This civil revision is directed against the judgment and decree passed by Ch. Saeed Ahmed, Additional District Judge, Vehari dated 18.4.2000.
2. The judgment impugned herein was passed in appeal arising out of civil .Suit titled Sardar Muhammad v. Balanda etc. Which was decided by the learned Trial Court vide judgment and decree dated 2.5.1994 and the suit of the plaintiff for pre-emption was decreed, In appeal the findings were reversed and suit was dismissed on the ground that the alleged vendor had in fact gifted the suit property to one Balanda and, hence there was no pre-emptable sale.
3. Learned counsel for the petitioner contended that the first Appellate Court has erred in arriving on the decision that it was a gift and, hence suit for pre-emption could not have been filed.
According to the learned counsel for the petitioner the suit land was sold in consideration of Rs.
80,000/- and the petitioner soon thereafter made Talabs under the law of pre-emption and, hence he was entitled to the judgment and decree in his favour. Our divergent pleadings of the parties the learned Trial Court framed the following issues:-
(1) Whether the plaintiff has no cause of action and locus standi? OPD
(2) Whether the property in dispute is preempt able? OPP
(3) Whether the suit is barred by time? OPD
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the plaintiff is estopped to bring present suit by his word and conduct? OPD
(6) Whether the plaintiff has superior right of preemption? OPP (6-A) Whether the disputed transaction was sale and not a gift? OPP
(7) Whether the plaintiff has duly formed the stages of Talabs? OPP
(8) Whether Rs. 100,000/- were fixed in good faith or actually paid? OPD
(9) What was the market value of the suit land? OPD
(10) Relief.
The evidence was led by the respective parties. The learned Trial Court decreed the suit for pre- emption on the ground that according to the deposition of the witnesses the suit land was sold in the sum of Rs. 80,000/- and that the plaintiff/petitioner having superior right of pre-emption was entitled to the decree as prayed for. This judgment was assailed before the first Appellate Court.
The learned first Appellate Court came to the conclusion that registered gift deed being registered document was more confidence inspiring as against the oral testimony of the witnesses.
4. The plaintiff produced as many as i.e PWs. Similarly the defendant also produced i.e witnesses and produced the registered gift deed in support of his claim. PW-1 Muhammad Siddique son of Karim Bakhsh deposed that he was Councilor of the areas and Ali Muhammad wanted to sell his land measuring four acres. He further deposed that the demand of the money was Rs. 25,000/- per acre, however, the bargain was concluded with Balanda in consideration of Rs. 20,000/- per acre and Rs. 80,000/- were- given to the vendor. However, he admitted that he was not present at the time of execution of sale-deed. He further deposed that Sardar Muhammad as soon as came to know about the alleged Sale raised his talab and said that he would i.e suit for pre-emption if the sale-deed is executed. A similar testimony was given by the remaining PWs. The petitioner further maintained that the gift deed executed in favour of Balanda was a falsely executed document to defeat the right of pre-emption and in any event it was without consideration.
5. On the other hand in respondents produced DW-1 Noor Ahmad who is Record Keeper, DW-2 Ch. Akbar Ali, Advocate, Zila Katchery, DW-3 Muhammad Yousaf, DW- 4 Muhammad Hussain and DW- 5 Muhammad Wakeel, DW- 1 Noor Ahmad stated that he was in possession of record of Registry No. 55 Behi No. 1 Book No. 6 and the said gift deed was registered at P-192, dated 19.12.1987, Behi No. 1 Pages 192, 104 are recorded. According to him Ali Muhammad donor has executed the registered gift deed in favour of Balanda son of Allah Rakha which was Exh. D-1, Exh. D-1/1 was the thumb mark of Ali Muhammad, Exh. D-1/2 was the signature of Ali Muhammad and Exh. D-1/3 was the thumb mark of Balanda whereas signatures of Muhammad Yousaf, Lamberdar of Chak No. 80-W were at Exh. D-1/4. DW-2 Ch. Akbar Ali stated that he was son of Muhammad Ali Stamp Vendor and he identified the handwriting of his father who was scribe of the Exh. D-1 and, identified the signatures of his father at Exh. D-1/5. He further stated that Exh. D-1 was the gift deed executed by Ali Muhammad donor in favour of Balanda donee. DW-3 Muhammad Yousaf deposed that he is Lamberdar of Chak No. 80-WB and the gift deed Exh. D-1 bore his signatures at Exh. D-4/1 which apart from him Ali Muhammad donor had also thumb marked along with Balanda. DW-4 Muhammad Hussain deposed that he was special attorney of Fatima Bibi, the wife of the donee of the suit property. Balanda, donee subsequently executed another gift deed in favour of his wife Fatima Bibi, It was also admitted that Balanda was issueless. DW-5 Muhammad Wakeel deposed that Balanda developed the suit land as it was Banjar Qadeem and purchased by the donor from the Government. Balanda developed the whole of the land and in consideration of said development, the donor Ali Muhammad gifted four acres there from to Balanda.
6. It was also contended on behalf of the respondent that during pendency of the suit, Balanda died. However, before his death he had gifted the suit property to his wife Mst. Fatima vide Tamleek Mutation No. 381, dated 16.12.1990. The suit was decreed on 2:5.1994 and the appeal was filed by Mst.
Fatima. However, during the pendency of the appeal Mst. Fatima also expired and this appeal was pursued by her legal heirs.
7. The learned counsel for the petitioner having doubted the said "Tamleek" in favour of Mst. Fatima has vehemently argued that after demise of Balanda Fatima being the only legal heir of Balanda who being issueless was entitled to 1 /4th share and hence the appeal was competent only to the extent of 1 /4th share and as far as remaining 3/4 share of the suit property is concerned there was no appeal filed in the eyes of law.
8. Perusal of the record shows that Ali Muhammad who purchased the land from the Government handed over the same to Balanda for development and Balanda had developed the land.
Testimony of DW-4 does not stand controverted by any of the witnesses appearing on behalf of the petitioner, therefore, it appears that Ali Muhammad in consideration of development of land had gifted four acres there from to Balanda, therefore, the findings of the learned first Appellate Court that the suit land was not pre-emptable appears to be sound and based on testimony of the witnesses as well as documentary evidence produced by the parties. Regarding petitioner's objection suffice it to say that Balanda before his demise had gifted the suit land to his wife, therefore the land holding of suit property devolved upon Mst. Fatima and it cannot be said that she being the only legal heir was entitled to 1 /4th share of inheritance of Balanda. Under Islamic Law Balanda could, during his life-time, make gift to his wife. He chose to gift the whole of the suit land to his wife Fatima which was never impeached in any legal proceedings, therefore, gift to Fatima of the suit land has not been doubted and is absolute, It also appears from the record that appeal was filed by Mst. Fatima against the judgment and decree passed by the learned Trial Court. During the pendency of the appeal Mst. Fatima also died. Since the property in dispute had already been gifted to her, therefore, same was prosecuted by her legal heirs, In these circumstances, findings recorded by the learned first Appellate Court do not call for interference in exercise of Revisional jurisdiction of this Court; hence this civil revision having no merits is dismissed with no order as to costs.