AMIN-UD-DIN KHAN, J. - Through this single judgment, we intend to dispose of R.F.A. No. 33 of 2002/BWP (Mst. Moqbool Muhammad Din v. Mst. Manzoor Masood etc.) and R.F.A. No. 34 of 2002 (Mst. Maqbool Muhammad Din v. Mst. Saima Masood etc.) as both these appeals have been preferred against consolidated judgment and decrees dated 16.01.2002 passed in Suit No. 1055/2001 titled "Mst. Maqbool Muhammad Din v. Mst. Manzoor Masood and others" and the other suit No. 1054/2001 titled "Mst. Maqbool Muhammad Din v. Mst. Saima Masood and another was consolidated with that suit.
2. Suit No. 1055/2001 was filed on 08.04.1994 wherein property measuring 514 kanals 14, marlas falling in Khata No. 32/28, Khatooni Nos. 101 to 103, Khata No. 34, Khatooni Nos. 106, 107, Khata No. 33, Khatooni Nos. 104, 105, Khata No. 20, Khatooni Nos. 51 to 70, according to register Haqdaran Zameen in the year 1989-90 situated at Chak No. 52-A, Tehsil Liaquatpur, was challenged. Against this judgment and decree, Civil Revision No. 33 of 2002 has been preferred whereas in suit No. 1054/2001, which was instituted on 08.09.1993, the property detailed below was under challenge:- House No. 8-IV/1605 measuring 05-kanals falling in Khata No. 28, Khatooni No. 55, Khata No. 29, Khatooni No. 56, Rectangle No. 124/16, acre No. 16, 25-[(urdu text)], rectangle No. 144/4, acre No. 20--, 21-Min, situated at Mohallah Bani Garan, Circular Road, Bahawalpur.
3. The learned Trial Court framed consolidated issues on 23.07.2001 and ordered the proceedings in the suit titled "Mst. Maqbool Muhammad Din v. Mst. Manzoor Masood etc therefore, evidence was recorded in this suit. The issues are as follows:-
(1) Whether both the suits are within time? OPP.
(2) Whether the suits are not maintainable in present form? OPD.
(3) Whether the plaintiff is estopped by her words, etc. And conduct to bring the suit? OPD.
(4) Whether the suit is barred by the principle of res judicata? OPD.
(5) Whether the suit (in hand) is barred under Order 2, Rule 2 of CPC? OPD.
(6) Whether the suits have been improperly valued for the purpose of Court-fee and jurisdiction? If so, what is its correct valuation? OPD.
(7) Whether gift-deed No. 344 dated 03.06.1981 and Mutation No. 526, dated 04.02.1986 are fake, fictitious and benami without transfer of possession and the plaintiff is owner in possession of disputed property? OPP.
(8) Whether subsequent registered gift deed No. 780, dated 19.03.1986, executed by defendant No. 1 in favour of defendant No. 2 (in present case) is illegal, void and without jurisdiction and transfer of possession. Hence the same is inoperative upon the rights of the plaintiff? OPP.
(9) Whether the disputed property in consolidated suit has not properly been described? If so, what is its correct description and its effect? OPD.
(10) Whether registered gift deeds No. 463/I, 464/I and 465/1 all dated 08.04.198T and Mutations Nos. 128, 129 and 130 all dated 27.10.1981 are fake, fictitious and benami and hence the same are inoperative and liable to be cancelled because the plaintiff is in possession? OPP.
(11) Whether both the suits are false, frivolous and vexatious and the defendants are entitled to get special costs under Section 35-A, C.P.C.? If so, how much. OPD.
(12) Relief.
4. Learned counsel for the appellants have argued that learned Trial Court miserably failed to appreciate the evidence in its true prospective. State that it was a case of Benami transaction. The limitation was in no way hurdle for filing suit by the plaintiff-appellant. Further contend that appellant has fully proved her case with voluminous evidence. The learned Trial Court has ignored the basic principles and recorded findings against the appellant. Further submit that gift was never complete as the possession was not given to the donees, therefore, suit was liable to be decreed.
5. On the other hand, learned counsel for the respondents vehemently opposed the arguments advanced by the learned counsel for the appellant and argued that findings recorded by learned Trial Court were absolutely in accordance with law as the plaintiff-appellant was graduate and thus was an educated lady, she gifted the property to the respondents with her free will and consent, the gifts were complete. Further states that form of the suit was not correct as after completion of registered gift deeds, the declaration cannot be sought against that. Further that under Muhammadan law, there is no provision of Benami gift. Further states that Court is bound under Section 3 of the Limitation Act to dismiss the suit on the basis of limitation. Submitted that suit was hopelessly time-barred, therefore, the learned Trial Court has rightly dismissed both the suits. Further that stand taken by the plaintiff-appellant in her suits is not only self-contradictory but is against the admitted position of judicial record and admissions made therein by the plaintiff-appellant. Contends that respondents are in possession of the gifted land. Further that the original documents were in the possession of the defendants- respondents.
6. We have heard learned counsel for the parties at full length and have perused the whole record with their able assistance as the record of the case is very voluminous as is 15 witnesses have been produced by the parties and in shape of documentary evidence, more than 250 documents are on the file.
7. The facts in detail have been mentioned in the judgment of the learned Trial Court, therefore, no need to reproduce here. So far as the limitation is concerned, admittedly the suit was filed on 04.08.1994 and other suit on 08.09.1993 whereas the documents against which suits have been fired, were registered on 08.04.1981 and 03.06.1981. The plaintiff was bound to prove that she has filed suit within the limitation provided under the law. Article 120 of the Limitation Act provides six years limitation for declaratory suit. Execution of gift deed has never been disputed by the plaintiff- appellant. When confronted to learned counsel for the appellant that as to whether there is any written acknowledgment available by the defendants- respondents with regard to the stand taken by the plaintiff- appellant in her suits and in these appeals, that these gift deeds were got registered as Benami transaction, the answer of learned counsel for the appellant was in negative.
Against the admitted documentary evidence in shape of registered gift deeds by the plaintiff- appellant herself, she wanted to create a case against that declaratory evidence on the basis of oral assertions and she has tried to prove the case just on the basis of oral evidence, whereas the registration of the documents is admitted and is in the knowledge of the plaintiff-appellant. The oral evidence does not exclude the documentary evidence. Furthermore, in the cross-examination, she has taken another stance which is even self-contradictory to her whole stand. In her cross- examination, she states that four years after the registration of gift deeds (Exh. D:2 to Exh. D:4), she came to know that she has gifted out this property. If from this assertion, period of limitation be counted, even then suit of the plaintiff- appellant is time-barred. Actually, for the purpose of period of limitation, in the circumstances of this case, period of limitation with start from the day of registration of the alleged gift deeds. The plaintiff-appellant herself got issued the proclamation in the newspaper which is Exh. D:84 and this proclamation was admitted by her as PW:10. The findings of learned Trial Court that the limitation was provided for this suit under Article 120 of the Limitation Act, is six years and the suit has been Hied even after the expiry of 12 years, therefore, suit was time- barred, does not call for interference.
8. Learned counsel for the respondents has not filed any cross-objections but he has argued that findings of learned Trial Court on issue No. 2 are not in accordance with law. Learned counsel state that the plaintiff-appellant should have filed suit for cancellation of the documents under Section 39 of the Specific Relief Act, 1877.
9. So far as right to argue the case against findings recorded by the learned Trial Court on issue No. 2 without filing of cross-objections is concerned, learned counsel for the appellant objected that learned counsel for the respondents has no right to argue his case for reversal of findings recorded by the learned Trial Court against defendants-respondents without filing cross-objections. In our view, when no part of the decree is in favour of the plaintiffs-appellant on the basis of findings recorded on issue No. 2, therefore, respondents have a right to agitate these findings without filing cross-objections but we do not fully agree with the contention of learned counsel for the respondents that this suit should have been filed for cancellation of the documents. We believe that this was not a case of plaintiff appellant that the instruments challenged through these suits were void or voidable. The case of the plaintiff-appellant is that she validly got registered the impugned gift deeds arid these were transferred as Benami and she was entitled to the return of the property. In this way, the findings of the learned Trial Court are not against law.
10. So far as the findings on issue No. 3 are concerned, learned counsel for the plaintiff-appellant failed to show any infirmity in the findings recorded by the learned Trial Court on this issue. The learned Trial Court has referred the admissions of the plaintiff-appellant made before the Court as PW.10 and also the admitted documentary evidence such like proclamation and written statement filed in another suit, which is available as Exh. P:79. In that written statement, plaintiff-appellant has categorically admitted the impugned gift deeds and there is no condition attached to the validity of the impugned gift deeds, therefore, findings recorded by learned Trial Court are correct.
11 The findings recorded by learned Trial Court on issue Nos. 4, 5, 6, 9 and 11 have not been challenged by the respondents, therefore, there is no need to comment upon these findings, which are validly recorded by the learned Trial Court.
12. The intention of the plaintiff-appellant by filing these suits seems that she wants to get back the property gifted by her through the registered gift deeds, The execution of the impugned deeds in both the suits has been admitted by the plaintiff-appellant. She has not denied the recitals of the deeds. Through these suits, the stand taken by the plaintiff-appellant is absolutely contradictory to the recitals of impugned documents though the impugned documents stand admitted by her. It is not the case of the plaintiff-appellant that at the time of registration of the impugned deeds, she has conveyed her intention that she is giving the property through the registered tamleek deeds to the defendants-respondents as Benami and she will be the real owner of the suit property and will be entitled to get the tamleek deeds cancelled when the need be. First time, at the time of filing the suit, plaintiff-appellant came with this stand that she got the impugned gift deeds executed and registered as Benami. When the recitals of the gift deed is admitted, the oral claim of the plaintiff- appellant that she never transferred the possession of the suit property to the donees, cannot be believed. It seems that through this suit, plaintiff-appellant wants that a right be created in her favour through the declaratory decree. We are afraid that it is not permissible under the law because a declaratory decree just declares a pre-existing right and a declaratory decree cannot create or confer a new right in favour of any party. Statement of the plaintiff-appellant as PW.10 is contradictory to her pleadings and even at two places 'in her statement-in-chief, she has changed her stance. There are certain limitations for proving the transaction as Benami transaction. The most important is the intention to transfer as Benami. The case built by the plaintiff-appellant for proving the impugned transaction as Benami transaction is also against the plaintiff-appellant.
She has given the reason that she was second wife of her husband Maher Imtiaz Hussain, who was already married and wanted to grab her property, therefore,. Their relations were strained and she has filed suit for dissolution of marriage against him and she was having fear in her mind that her husband would kill her to grab her property. The documentary evidence shows that gift deeds were made in the year 1981 whereas suit for dissolution of marriage was filed on 13.05.1982 and plaint of that suit is as Exh. P:14 and suit was withdrawn on 06.01.1983. This documentary evidence clearly negates the version of the plaintiff-appellant! The other material point, that if rt was a benami transaction, the original documents should have been with the plaintiff-appellant but the position is that the original documents were in the custody of the defendants- respondents. Further, we have observed that under Muhammadan Law, there is no concept of Benami transaction of gift.
Even for revocation of gift, under Muhammadan law, there are certain limitations. It has also come on record that the plaintiff-appellant has gifted 200 kanals of land to her husband namely Maher Imtiaz Hussain and some other land to her niece and even she has admitted this during her cross- examination.
13. There is another fact that Mst. Maqbool Muhammad Din died during the appeal, now her husband Imtiaz Hussain is the appellant.
14. In this view of the matter, the plaintiff-appellant has failed to prove that possession of the impugned property has not been transferred under the impugned gift deeds to the donees. As onus of these issues was upon the plaintiff- appellant, the learned counsel for the plaintiff- appellant miserably failed to shatter or show any defect in the findings recorded by learned Trial Court on issue Nos. 7, 8 and 10.
15. In the light of what has been discussed above, we see no merit in both these appeals, therefore, the same stand dismissed with costs. R.F.A. Dismissed.