AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners have challenged the judgment and decree dated 20.11.2000 passed by the Addl. District Judge, Liaqat Pur, whereby the appeal filed by the petitioners was dismissed and also the partial decree granted in favour of petitioners- plaintiffs was also set aside, and the judgment and decree dated 01.03.1994 passed by the Civil Judge, Liaqat Pur, whereby the suit filed by the petitioners-plaintiffs was partially decreed and partially dismissed.
2. The facts of this case are that the petitioners-plaintiffs on 08.03.1992 filed a suit for declaration alleging therein that they are owner in possession of suit property on the basis of Tamleek Nama dated 15.12.1972 by Mst. Jannat Khatoon, mother of plaintiff No. 1 and paternal grandmother of plaintiffs Nos. 2 and 3.
The defendants Nos. 2 and 4 appeared and filed consenting written statement on 20.03.1993, whereas defendants Nos. 1, 3, 5 to 16 filed contesting written statement on 05.12.1992. Record shows that on 25.04.1993 respondents Nos. 1, 5 to 7 also filed a compromise in writing for admitting the suit and after that got recorded statement in the Court on 31.07.1993 wherein they resiled from above- mentioned compromise filed in the Court. Therefore, the Trial Court, out of the divergent pleadings of the parties framed issues and invited the parties to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence. Vide judgment and decree dated 01.03.1994 the Trial Court partially decreed the suit against defendants Nos. 2 & 4 and dismissed the suit to the extent of rest of the defendants. An appeal was preferred by the plaintiffs before the first Appellate Court, whereby the first Appellate Court vide judgment and decree dated 20.11.2000 not only dismissed the appeal but also set aside the partial, decree passed by the Trial Court in favour of plaintiffs. Hence, this civil revision.
3. The respondents Nos. 8 to 16 were proceeded against ex parte on 30.01.2001. Respondents Nos. 1, 3, 5 to 7 are represented by Malik M. H. Zafar Mission, Advocate whose name is notified in the cause list but he has not turned up, therefore, these respondents are also proceeded against ex parte.
Respondents Nos. 2 and 4 have filed consenting written statement and no one is present on their behalf, therefore, ex parte arguments have peen heard.
4. Learned counsel for the petitioners-plaintiffs states that petitioners have fully proved the execution of gift deed dated 15.12.1972 (Ex.P-1); that admittedly the property situates in a joint Khata and it has not been denied by the defendants that plaintiffs Nos. 1 and 2/petitioners Nos. 1 and 2 are in possession of joint Khata; that both the Courts below fell in error while non-suiting the plaintiffs on the basis that they have not proved the delivery of possession under the alleged gift deed.
Learned counsel has also argued on the point that once a party admits the claim of other party, afterwards it cannot resile from the admissions made before the Court. In this behalf he has relied upon "PLD 1994 Karachi 52 (Rana Abdul Ghafoor v. Government of Sindh and others), 1997 MLD 2180 (Farid Gul and others v. Gul Mast)".
It has been further stated with regard to non-delivery of possession that no specific issue was framed and in this view of the matter learned counsel relied upon "PLO 1977 Supreme Court 144 (Muhammad Ismail v. Barkhurdar) and 1997 MLD 130 (Muhammad Sarwar and 6 others v.
Muhammad lqbal and 2 others)".
Learned counsel for the petitioners further states that the donor was also having immovable property in shape of agricultural land measuring near about 100 kanals even after transferring the suit property in favour of plaintiffs and therefore by no stretch of imagination this gift can be invalidated on the ground that she was not entitled to disinherit the other legal heirs. On this point he has relied upon "PLD 1994 Supreme Court 650 (Noor Muhammad Khan and 3 others v.
Habibullah Khan and 27 others) and NLR 1994 SC 592 (Noor Muhammad Khan, etc. v. Habibullah Khan. Etc.)".
5. I have heard the learned counsel for the petitioners at full length and also gone through the record.
6. I have observed that gift deed is a written document dated 15.12.1972. Mst. Jannat Khatoon died in the year 1973, whereas mutation of her inheritance No. 318 was passed on 05.11.1991 and two of the defendants have filed consenting written statement even some other defendants also filed a consent application but afterwards they resiled from their filing of that writing. Though learned counsel for the petitioners has placed the case-law and also argued this point at full length but I think that this will be an academic question when the other important issues are available to be discussed.
The case-law relied by learned counsel for the petitioners relates to the point that when a party to the suit enters into a compromise and afterwards resiles, then Court is bound to give opportunity to prove the compromise to the party pressing for the same. This was not conducted by the Trial Court. Most of the emphasis for non-suiting the plaintiffs by both the Courts below is that the possession of gifted land has not been transferred to the plaintiffs under the gift. The findings recorded by the Courts below are result of misreading, as D.W-1 is the witness of defendants, who are bound by his statement, has admitted that donees/plaintiffs Nos. 1 and 2 are in possession of land and also admitted that the land is situated in a joint Khata. In this view of the matter, the case-law referred to by learned counsel for the petitioners coupled with the statement of D.W-1 are helpful to the case of petitioners, therefore, light can safely be taken from the case-law mentioned supra. The admitting possession of petitioners-plaintiffs over the suit land is sufficient to hold that possession was with the plaintiffs under the gift, even D.W-3 has admitted the possession of petitioners-plaintiffs. It is recognized principle of law that the fact admitted need not be proved. In this eventuality, I have no doubt in my mind that petitioners-plaintiffs fully proved the gift and their possession under the gift over the suit land and the findings of two Courts below against legal as well as clear factual admission of witness of defendants, are against the law. Therefore, the findings recorded by both the Courts below are result of misreading and non-reading of material evidence available on record.
7. For the foregoing reasons, this civil revision is allowed . The findings recorded by the Courts below against the petitioners-plaintiffs are reversed and the impugned judgments and decrees passed by the Courts below are set aside. The result would be the suit filed by the petitioners-plaintiffs shall stand decreed with costs throughout.
Civil revision .