' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners-plaintiffs have challenged the judgment and decree dated 13-3-2004 passed by the Addl. District Judge, Bahawalnagar, whereby the appeal filed by the respondents-defendants was accepted against the judgment and decree dated 14-10-2000 passed by the Civil Judge 1st Class, Minchin-Abad, whereby the suit filed by the petitioners-plaintiffs for declaration was decreed.
2. Briefly, the facts as arising out of this civil revision are that the petitioners-plaintiffs on 17-11-1993 filed a suit for declaration seeking therein a declaration on the basis of alleged gift deed dated 10-5-1993. They claimed that defendant No,1 (Ali Muhammad), their, father gifted the land measuring 670 kanals 10 marlas mentioned in the plaint to them. All other expected legal heirs of said Ali Muhammad were made party as defendants Nos.2 to 9 in the suit. The plaintiff No,2 was minor and filed the suit through his mother Mst. Momnan Bibi, defendant No,9 in the suit and afterward she was transposed as plaintiff No,3 on 8-9-2000 in the suit.
' The said Ali Muhammad s/o Hassan Ali (defendant No,1) was having three wives and he was also having issues from these wives. The defendants Nos.2 to 5 contested the suit, whereas defendants Nos.6 to 8 consented for the decree of suit. The original defendant No,1, the alleged donor, who was alive at the time of filing of the suit, has not filed any written statement. He died on 21-8-1994.
' From the divergent pleadings of the parties, the trial court on 20-7-1995 framed the issues and invited the parties to produce their evidence. Both the parties adduced their oral as- well as voluminous documentary evidence. After hearing the parties the trial court vide judgment and decree dated 24-10-2000 decreed the suit in favour of petitioners-plaintiffs. The respondents-defendants filed an appeal, which was accepted by the Addl.
District Judge, Bahawalnagar vide judgment and decree dated 13-3-2004, which is under challenge before this Court in this civil revision.
3. Learned counsel for the petitioners-plaintiffs argued that the donor Ali Muhammad gifted the property to the plaintiffs; that as many as 7 witnesses have been produced to prove the gift in favour of petitioners-plaintiffs and also certified copy from the judicial record of another suit for specific performance were produced to prove the case of plaintiff's and they succeeded fully in proving their case; that the judgment and decree passed by the trial court are in accordance with law, whereas the first appellate court fell in error while reversing the findings recorded by the trial court.
4. On the other hand, learned counsel for the respondents-defendants contended that the alleged gift deed is forged one and the suit was filed in the life of original owner and the expected legal heirs of said donor were and made party to the suit as defendants; that this fact speaks volumes against the petitioners- plaintiffs. Further stated that it is admitted position that' Ali Muhammad; was owner of total land measuring 670 kanals 10 marlas and not a single inch remains for inheritance if the plaintiffs proved that suit property has been gifted to them; that petitioners-plaintiffs absolutely failed to prove the gift and that alleged deed of gift Exh.P-1 does not create or confer any rights in favour of plaintiffs as it is unregistered document.
5. I have heard the learned counsel for the parties and also gone through the record with their able assistance.
6. The plaintiff of a suit claiming a declaration of ownership on the basis of any gift, first of all, he will prove the factum of gift independent of any instrument, secondly, he is bound to prove the instrument if his claim is based upon any instrument.
' In this case, the plaintiffs have based their claim on a written gift, deed. .I have minutely scrutinized the evidence produced by the plaintiffs as well as pleadings. In paragraph No,4 of the plant, which is available on record. It is amended plaint dated 8-9-2000, no other plaint has been produced. The plaintiffs have stated that near about 6 before filing of the suit, defendant No,1 offered to gift the suit property to the plaintiffs. It is not mentioned that the figure 6 indicates 6 days, 6 weeks, 6 months or 6 years. They pleaded that then on 10-5- 1993 a writing was also made with that regard. As I have noticed that the plaintiffs were bound to prove the facum of gift first and they were also bound to plead B the same in their plaint. They have not pleaded the factum of gift in accordance with law, as neither the date of gift nor the names of witnesses have been mentioned In the pleadings. The same is the position of statement of P.W.6, Muhammad Arshad, one of the plaintiffs. His statement is not up to the mark to prove his contention of making of gift by his father in favour of plaintiffs. No witness of event of offer and acceptance of gift has been produced by the plaintiffs and the alleged witnesses of Exh.P-1 stated about the execution of this document only, They are not the witnesses of any event of gift prior to the incorporation of alleged gift in Exh.P-1. Even the reason given in Exh.P-1 for transferring whole of the property in favour of plaintiffs by the donor that the 3rd wife Mst. Munawar Bibi, daughter and sons of donor from Mst. Munawar Bibi are disobedient, therefore, he is depriving them. Admittedly, there are other issues of Ali Muhammad from Mst. Momnan Bibi and even there is a sister of Muhammad Arshad plaintiff.
7. The three ingredients i,e, offer, acceptance and delivery of possession in accordance with Para No, 49 of the Mohammadan Law by Mulla for making the gift, are missing in this case. It is also pertinent to. Mention here that in the alleged gift deed Ex.P-1 there is no mentioning that how much property the alleged donor is giving to each of the alleged donees. This fact has also not been mentioned in the plaint and the evidence. It is admitted fact that Ali Muhammad never filed written statement in the suit. He even remained alive after filing of the suit for a period of about 9 months. The statement Exh.P-12 was not recorded on the date of hearing. Furthermore, the counsel (P.W-7) who identified the said Ali Muhammad at the time of recording of statement, has admitted that Ali. Muhammad was not prior to the making of statement known to him. The other suit which has been relied by the learned counsel for the petitioners-plaintiffs and the documents from which, the certified copies have been placed on this file, titled "Ali Sher v. All Muhammad" suit for specific performance, in that suit it is not proved that the statement was made on the date of hearing. In this view of the matter, the alleged statement of Ali Muhammad in suit in hand and in the other suit are not free from doubts because in the normal course of proceedings these were not got recorded by Ali Muhammad. The certified copies from the file of other suit have also not been proved in accordance with law, therefore no evidentiary value can be given to these documents when defendants of suit in hand were not party in that suit.
8. The reasoft given in the document for non-registration of this gift in favour of donees has beer given that due to the week financial position this could not be got registered. This has been written on a- stamp paper of Rs,10.
I find that at the time, when alleged gift deed was prepared, no stamp duty or any transfer fee was required .For registration, of gift deed or transfer of the agricultural property through gift by a donor in favour of .Expected legal heirs. On a simple plane paper the registered deed of gift in favour of expected legal heirs was competent.
The impugned gift deed also relates to agricultural property. Therefore, the reason given in this deed is also wrong. No doubt a Muslim can gift his property orally according to Para No,147 of Mohammadan Law by Mulla, but when the D instrument is in writing it must fulfil all the legal formalities.
9. The contention of learned counsel for the respondents that when the petitioners-plaintiffs claimed this document to be a gift deed and claimed complete transfer of rights in their favour in inimoveable E property the value of which is more than Rs,100/-, therefore according to sections 17 and 49 of the Registration Act, the registration of this document was necessary, has weight. Admittedly, the alleged gift was not . Incorporated in any 'revenue record and the petitioners-plaintiffs sough a declaration from the Civil Court on the basis of that alleged gift deed by filing suit for declaration under section 42 of the Specific Relief Act I of 1877. I find that a declaratory decree can be passed under section 42 of the Specific Relief Act for declaring a pre-existing right G No new rights can be created, if the alleged gift deed was sufficient to transfer the rights in the- immoveable property and the alleged donor was also alive and willing. What was the necessity to file a suit for declaration on the basis of alleged gift deed. Certainly the alleged gift deed was not a document transferring the ownership rights in favour of donees. Therefore, they were forced to file a declaratory suit and they tried to get their rights created in the suit property by the court through a declaratory decree for which I have already given the findings that a declaratory decree cannot create a new right. It just declares a pre- I existing right. Therefore, the suit filed by the petitioners-plaintiffs was not competent and decree granted by the trial court was nullity in I j the eyes of court.
10. As the petitioners were bound under the law to produce complete certified copies of pleadings, evidence etc. Of the case with this revision, therefore, for non-production of certified copies of original as K well as amended plaint, the loss will certainly be suffered by them. This Court has to decide this revision petition on the basis of available record.
' Accordingly the findings have been recorded on the basis of copy of/k plaint available on the record of this file.
11. In view of the above circumstances, learned counsel for the petitioners failed to show any misreading, non- reading or defect in the impugned judgment and decree passed by the first appellate court. Resultantly, this civil revision is dismissed with costs throughout.