' ALI BAQAR NAJAFI, J.--- Through this civil revision the petitioners have challenged the order. Dated 27-6-1997 passed by the Civil Judge Rajanpur as well as the order dated 10-3-1998 passed by the Additional District Judge, Rajanpur, whereby the suit of the respondent was decreed.
2. The brief facts giving rise to filing of this civil revision is that Farid Bakhsh the husband of Ameer Mai respondent was the original owner of agricultural land measuring 113-kanals and 2 marlas. He contracted third marriage with Ameer Mai on 8-3-1959 in lieu of Rs,52 as dower. The said Farid Bakhsh transferred the disputed land in favour of Ameer Mai, being issueless, through oral gift as additional amount of dower. On 25-9-1986 the respondent Ameer Mai filed a suit for declaration against her husband to the effect that she was owner in possession of the suit-land on the basis of gift in lieu of dower. On 29-9-1986 a counsel for the said Farid Bakhsh namely Muhammad Rafi Pachar, Advocate, submitted a power of attorney (Exh. P-1), who also submitted a consenting statement on 29-9-1980 (Exh.P-2) along with the list of legal heir showing the respondent as the only legal heir (Exh . P-3). On 3-12-1986 the respondent moved an application for recording the statement of Farid Bakhsh through a local commission upon which Malik Manzoor Ahmed Awan, Advocate, was appointed as a local commission who recorded his statement on 6-12-1986 which is on the file as Exh.DA/5. Resultantly, on 28-7-1987 the suit was decreed. On 10-3-1988 said Farid Bakhsh died and on 9-5-1988 the petitioners moved an application under section 12(2), C.P.C.
Against the judgment and decree dated 23-7-1997 on the ground that it was the result of fraud and misrepresentation claiming that petitioners being the nephews of the deceased Farid Bakhsh were entitled to inherit his property as he was Shia by sect, therefore, respondent could not inherit his property for being issueless; and that the land was not gifted to her as additional dower. The property thus mutated on 19-5-1994 vide No,1068 to petitioners was valid. On 24-5-1992 the said application was allowed, the suit was restored and the petitioners were consequently arrayed as defendants. On 2-1-1993 issues were framed. In the suit neither the documentary nor the oral evidence was produced by the petitioner but evidence was given by the respondent. On 9-3-1994 the suit of the respondent was dismissed but the appeal was allowed on 18-9-1995 and the case was remanded for a fresh decision. During the remand proceedings two additional issues were framed by the trial Court and the parties were directed to produce their evidence. The respondent adduced her evidence but the petitioners relied upon their previous evidence.
3. The respondent appeared as P.W.4, Malik Manzoor Ahmad Awan, Advocate appeared as P.W.2, Murid Hussain as P.W.3 (tenant in cultivating possession of land in question) while petitioners did not produce any evidence on the issue framed but relied upon the earlier evidence. On 27-6-1997 the suit was decreed by the Civil Judge Rajanpur and the appeal was dismissed on 10-3-1998 by the Additional District Judge, Rajanpur. Hence this revision petition.
4. Learned counsel for the petitioners submits that issues were not properly framed on the question whether Farid Bakhsh remained in cultivating possession till his death; that different modes were provided for gift under Shia Law; that the stance of the respondent is changing as somewhere she has stated the transaction as oral gift then it was described as additional dower, then discovered it as grant and finally considered it as a will and as such the respondent is not sure about its nature; the inheritance of the petitioners is admitted by the respondent; the nikahnama Exh.A-6 does not contain any reference of this land in lieu of dower; that the trial Court had failed to frame separate issues and also failed to give issue-wise finding.
5. Conversely, learned counsel for the respondent submits that there is no scope of revision petition under section 115, C.P.C. Against the concurrent finding, the application under section 12(2), C.P.C.
Filed by the petitioners was allowed whereafter there is hardly any question with regard to misreading or non-reading of evidence; that the evidence recorded during the pendency of application under section 12(2), C.P.C. Cannot be treated as evidence; there is no requirement to prove the increase of dower by her husband through witnesses; that the three prerequisites of a gift i,e, declaration, acceptance and delivery of possession are duly fulfilled and lastly submits that the questipn of faith of the deceased Farid Bakhsh is not relevant as during life tinrie there is no difference in making of a gift by Muslim. Shia or Muslim Sunni to the wife, whether issueless or otherwise, during his life time if he enjoys a proper health, no revision is entertainable against an order which was already appealed against; a compromise already signed and submitted in court is valid; increase of dower is not to be specifically proved; a gift by husband to wife is a Hiba-bil- Iwaz. He places reliance on Falak Khursheed v. Fakhar Khurshid and others (2006 SCM R 595); Ghulam Akbar v. Muhammad Ilyas and others (1992. MLD 2279 Karachi); Muhammad Ashraf v.
Shehzada laved Iqbal and 6 others (2001 PSC 765); Mian Aziz A. Sheikh v., The Commissioner of Income-Tax Investigation, Lahore (PLD 1989 Supreme Court 613), Inayat Ullah v. Perveen Akhtar (1985 'CLC 1454 (Lahore) and Mst. Charagh Bibi v. Mst. Mehraj Bibi and 2 others 1998 CLC 796. In rebuttal learned counsel for the petitioners submits that due to undue influence and other facts the gift becomes void.
6. I have heard the learned counsel for the parties and have perused the record.
7. The pivotal question is whether the respondent was gifted the land in question by her deceased husband, Karim Bakhksh. The consenting written statement of the deceased husband as well as his statement through the local commission admitting the gift is on record as Exh.P2 and Exh.P5, respectively. As it was an additional dower, in the form of gift, therefore, it was not required to be mentioned in the nikahnama Exh.PA/5 and even this increase is also not required to be proved through evidence as held in Mian Aziz A. Sheikh v. The Commissioner of Income Tax (PLD 1989 SC 613). A proper healthy Muslim cannot be invalidated on the ground that his legal heir were deprived of their share as he enjoys un fettered powers to make a gift as laid down in "PLD 2006 SC 15". All what he has to do is to fulfil the ingredients of gift i,e, offer, acceptance and transfer of possession.
In case of a gift by husband to wife, even transfer of possession is not essential. I am guided by the two judgments of the Apex Court on this issue which are reported as 2010 SCMR 342 and 2006 SCM R 50.
8. Viewing from another perspective, the evidence recorded during the pendency of an application under section 12(2), C.P.C. Cannot be treated as evidence in the suit on merits, as held by the Hon'ble Supreme Court in Muhammad Ashraf v. Javed Iqbal and 6 others (2001 PSC 765). Since this Civil Revision was filed against the order passed in an application under section 12(2), C.P.C. Upheld by the appellate court, therefore, the same is not competent. I again draw strength from the Hon'ble Supreme Court of Pakistan in the judgnient titled Falak Khurshid v. Fakhar Khurshid and others (2006 SCMR 595).
9. All questions raised in this Civil Revision are already correctly answered by the two courts below.
No additional issues was required to be framed. I do not find any misreading/non-reading of evidence resulting into illegality or any jurisdictional defect, therefore, this civil revision has no force and is dismissed with no order as to costs.