MUHAMMAD AMEER BHATTI, J. --- Through the civil revision the petitioners have challenged the concurrent findings of both the Courts below whereby the suit of th respondent No. 1 has been decreed vide judgment date 15.10.2000 by the learned Trial Court and appeal filed by th present petitioners has been dismissed by the learned firs Appellate Court vide its judgment dated 18.3.2000.
2. The brief facts of the case necessary for the disposal of this civil revision are that one Ruken-i- Alam was the original owner of land measuring 291 kanals, 7 marlas. Out of this land, he gifted a piece of land measuring 65 kanals, 4 marlas in favour of the plaintiff/Hussain Bibi his wife through a registered gift deed dated 10.6.1947. It is not disputed that till his death, Ruken-i-Alam went on living with Hussain Bibi.
3. The plaintiff filed a suit 'for declaration on the basis of this registered gift deed against the Ruken- i-Alam to the effect that she was owner in possession about the disputed land and entries in the revenue record against her rights are illegal, unlawful and liable to be set aside.
4. Defendant Ruken-i-Alain filed the written statement wherein apart from other preliminary objections one to the effect he had already revoked the gift orally so the suit was not maintainable.
He also controverted the factual position of the case. However, during pendency of this suit. Ruken- i-Alain breathed his last in the year 1994. The plaintiff sought amendment in the plaint by filing an application dated 12.11.1995 but the learned Trial Court vide order dated 13.12.1995 not only dismissed the application of the plaintiff for amendment but also rejected the plaint. Against this, order the appeal was preferred which was accepted on 7.6.1999 and by allowing the amendment, the case was remanded back to the learned Trial Court for decision on merits. On 20.7.1999, the amended plaint was filed. However, the petitioners/defendants who had been impleaded after the death of Ruken-i-Alam as his legal heirs made the statement on 9.9.1999 for considering the earlier written statement as part of the record on their behalf. Issues were framed, parties were allowed to lead their evidence according to the issues. The learned Trial Court after completing evidence on behalf of both the parties and giving the opportunity of hearing in accordance with law, decreed the suit vide its judgment dated 15.11.2000. The present petitioners preferred appeal which was also dismissed by the learned ADJ vide his judgment dated 18.3.2000, hence this revision petition.
5. Learned counsel for the petitioners contends that the plaint has not amended although an opportunity of amendment of this plaint has been provided but even then the same/ditto copy of the earlier plaint has been submitted, hence the same is liable to be rejected. He has pointed out that earlier the suit has been filed on the basis of Khasra number which was changed in the wake of consolidation process held in the year 1970 but even then amended Khasra numbers have not been mentioned and the plaint does not bear the true description of property and the present land in dispute has no nexus with the controversy involved in the suit, hence the plaint was earlier rightly rejected and now again on the basis of this ground same is also liable to be rejected as they have not pointed out new description of the land in disputed in violation of Order 2, Rule 4, Order 7, Rule 3(g) read with Order 6, Rule 18, CPC. While relying on 1987 SCM R 624 contends that the law is clear if the land has not been correctly identified in the description it means that the plaintiff has no knowledge about the land, hence the suit on this ground must fail. He further contends that the owner of the land has specifically took the stand at the time of filing of the written statement that he had already revoked this gift and in the light of this statement the suit of the plaintiff was not maintainable. Further alleged that after revocation including the suit land through' independent gift deeds, land measuring 97 kanals, 8 marlas to Nazir Hussain and 48 kanals, 14 marlas to Bashir Hussain have been given by the donor. Even through the sale-deeds land measuring 27 kanals has been sold out to Fateh Muhammad and Nasim by the owner himself which confirms the effect of the revocation of the gift deed. Further contends that possession of the land in dispute is with the present petitioners and till filing of this suit, no one has raised any objection. Since the possession has never been delivered to the plaintiff according to his gift deed so the transaction is deemed to have not been completed according to the law. The non-delivery of possession means deficiency in the performance/completion of transaction and same cannot be considered a valid gift.
Reliance has placed on 2000 M LD 1729 and 1972 SCM R 50. Further contends that after the revocation the owner of the land Ruken-i-Alam had gifted the disputed land to the present petitioners on the basis of those gift deeds, the suit filed by the present petitioners in the year 1998 is still pending in the Civil Court. Further contends that it was the duty of the 'Trial Court that the suit of the present petitioners. And the suit of the plaintiff/respondents must have been consolidated as both suits related to the same disputed land. Reliance has placed upon 1993 SCM R 246. It is also argued by the learned counsel that no issue about the revocation of gift has been framed despite the specific objections no issue about the revocation of gift of the plaintiff/respondent No. 1 and subsequent gift made in favour of the present petitioners by the Trial Court and the effect of this non-observance of the provisions of law has also been over-looked by the learned first Appellate Court. The Courts below have wrongly applied Section 156 of Mohammedan Law although it was a case of Section 157 of Mohammaden Law, which has also prejudiced the case of the petitioner. On the basis of above submissions the counsel for the petitioner prays for the setting aside of the judgment and decrees of both the Courts below.
6. On the other hand, learned counsel for the respondent in support of the concurrent findings of the facts given by both the Courts below contends that the power provided under Section 115 can only be exercised where a jurisdictional defect has been pointed out and not against the concurrent finding of fact. He has relied on PLD 1994 SC 291. Further contends that reappraisal of evidence cannot be appreciated even if question of fact is involved as the. case of the petitioner is based on reappraisal of the evidence which cannot be exercised on the strength of the law laid down by the Honourable Supreme Court as relied PLJ 2006 SC 230 and 50.
Further contends that this revisional power cannot be exercised merely on the ground that another view is possible from the reappraisal of the evidence. Reliance is placed on 2001 SCM R 798 on the merits of the case. Learned counsel for respondent No. 1 contends that the gift has been admitted by the Ruken-i-Alam and he himself in the preliminary objection took the stand that the gift made in favour of the plaintiff had been revoked and this is sufficient to prove this fact that there was a gift which was revoked. Further to elaborate his arguments contends that the gift in favour of the plaintiff was through a registered gift deed so the revocation must have been executed through the same process otherwise mere oral assertion in the written statement in no manner affect the rights of the plaintiff/respondent No. 1. He further contends that it is nowhere, mentioned that where in whose presence and when the revocation had been made so it is nothing more than a verbal assertion and mere mentioning of this fact does not infringe on the rights of the plaintiff/respondent No 1. Hence the registered gift deed made In favour of the plaintiff still exists as a valid gift so much so from the evidence, the petitioner has made the effort to establish that there was no gift in favour of the plaintiffs/respondent No. 1 which is a diametrically opposed stance taken in the written statement. Since the donor himself filed the written statement and admitted about the gift as well as its revocation, hence the defendant/petitioner's evidence about the non- existence of the gift in favour of the plaintiff/respondent No. 1, cannot be considered as this plea is contrary to the stand taken in the written statement. However, explained that there is no evidence about the revocation produced by the present petitioner/defendant. Learned counsel for the respondent contends that the gift was made by the husband in favour of his wife through a registered deed and it is a settled law if the husband and wife are living together then the possession of the donee. Reliance has been placed on PLD 2006 SC 50. Further relying on 2003 CLC 1006 contends that in suchlike situation the delivery of possession is not required in another judgment it has been held that the mere mentioning of deiivery of possession in the gift deed is sufficient and physical delivery of possession is not the requirement in the case of husband and wife. Reliance is placed on 1995 CLC 1532.
Referring to the. Sections 152, 153, 155 and 166 contends that until a decree for revocation is passed in case of registered gift deed no body can exercise the right of revocation. Further contends that the main document is registered gift deed and if it has not been incorporated in the revenue record it will not lost his validity because it is the duty of the revenue hierarchy and non- incorporation its effect by them will not effect on the registered deed and it will not affect the rights of the plaintiff. Further contends that the khata of the petitioner and the respondent/plaintiff is the same and one so no limitation runs against the co-owner/cosharer.
7. While referring to paras 7, 9 and 12 of the learned ADJ, he has specifically mentioned that except issue Nos. 5 & 6, no arguments have been advanced so meaning thereby, the petitioners have abandon all other issues and now at this stage they have no right to argue the case except on issue No. 5 and 6. Reliance is placed on 1979 SCM R 630, 2007 SCM R 1131, PLD 2006 SC 318 and 2008 SCMR 546. So far as the pendency of the suit of the plaintiff is concerned the contention of learned counsel for the respondent while relying on NLR 1997 Revenue 87 and KLR 1984 Revenue 38 is that the suit has been filed during the pendency of this suit and even no stand has been taken in the suit of the plaintiff/respondent No. 1 about the gift. So on the basis of those gifts if this suit has been filed subsequently is liable to be straightaway discarded. About the description of land, the learned counsel for the petitioner relying on PLD 1973 L 637, PLD 1966 L 1171, 1970 Law Notes 873 and NLR 1981 Civil 68 contends that there was no need to mention the new numbers which have been changed by the Consolidation Operation because this does not destroy the vested rights of the holder of the valid deeds. So far as the contention of the learned counsel for the petitioner that the parties belong to Shia sect and Section 156 of the Mohammadan Law is not applicable. The learned counsel for the respondent in response to this argument contends that for holding any person to be a Shia the requirement of law is that he must plead himself, lead and make himself as Shia otherwise according to the law laid down by this Court as well as the Honourable Supreme Court, reliance is placed on AIR 1933 L 38, 1989 CLC 1591, PLD 1961 L 431., PLD 1965 SC 134, PLD 1975 L 46 and 2009 SCM R 644. The substance of these judgments is that unless it has not been pleaded and, proved the under Mohammaden Law, the presumption is that a Mohammaden is Sunni and 9overned by Hanafi Law until a contrary is proved on the basis of above contentions. The learned counsel for the respondent prays for the dismissal of this revision petition.
8. Arguments heard, record perused with the assistance of both the learned counsels. The main issue in this case according to my assessment is whether there is a gift in favour of the respondent No. 1 plaintiff and according to Mohammaden Law the ingredients of the gifts have been fulfilled or not.
9. From the record it is clear that the gift in favour of the plaintiff was made through a registered gift deed in the year 1947 as it has been categorically stated in the written statement by the donor himself that he revoked this gift. After this sentence, there is no need for respondent No. 1/plaintiff to make any efforts to prove of the factum of gift. In the given situation, the onus shifted to the shoulders of the petitioner /defendant to prove his case of revocation but there is no evidence available on the record rather the evidence on behalf of the petitioner/defendant that since the gift was invalid, owing to non-delivery of possession, and they are in possession of this suit land on the basis of ownership because this land after revocation had not only delivered physically but a gift has been made in their favour. The learned counsel for the defendant now has argued that on the basis of the documentary evidence the gift has been made in their favour although it was orally 30 years back at the time of execution of the document of gift which has been placed on record as Ex.D1 & D2. The contention of the learned counsel could not stand on its own legs because the documents spoke otherwise. I have minutely examined the Exhibits D1 and D2 with the assistance of the learned counsel for the petitioner where nothing has been mentioned about the oral gift. Even in this document, apart from the fact whether these documents can be read in evidence or not, these documents clearly depict the intention of the donor who made this gift at the time of execution of these documents. This has not been disputed with these documents have been executed on 6.7.1993 during the pendency of the suit. The position can be befittingly clarified about this alleged gift (Ex.D.1 & Ex.D.2), if the exact words of the documents are narrated here:--- {{URDU TEXT}} So the contention of the learned counsel for the petitioner that the land has been gifted to the petitioner 30 years back before filing this suit and they are in possession, is falsified from their own documents. So far as the benefit of nondelivery of possession to the plaintiff in connection with the disputed registered gift is concerned, the law is clear on this point. Since the land has been gifted- by the husband to his wife for that purpose, there is no need to deliver the physical possession . In such case, mere acceptance of and mentioning of the delivery of possession in the deed is sufficient as per law laid down by the Honourable Supreme Court reported as 2006 SCM R 50 Abdul Matin and others v. Mustakhia.
Mst. Nusrat Zohra v, Mst, Azra Bibi, arc. PLD 2006 SC 16 The Hon'ble Supreme Court held that "Donor was entitled to gift whole of his property to one of his legal heirs and no bar had been imposed under Islamic law"., The relevant part of this judgment is as under:- "Further contended that neither there was offer nor acceptance of gift and possession of the suit was also . Not handed over to the donee validity of the donor and donee being husband and wife living together and management of agricultural land was under the control of donor as donee could not personally engage herself in the cultivation of land. In law the donee would be deemed to be in possession of the land under the gift"
Mst. Waziran v. Kalu etc.. 1995 CLC 1532.
This Court held "In case of gift from husband to wife, the change of possession was complete if it was merely written in the gift deed".
Sikandar Ha at etc. v. Ahmed Sher etc. 2003 CLC 1006.
This Court held Gift---Property gifted by husband to the wife was a share in Khata--- Delivery of possession proof --- Strict proof of delivery of possession in favour of wife was not required.
Waheed Gul v. Mst. Saida Jan 1998 M LD 3. Gift-Proof-Strict proof of delivery of possession when not necessary---where donor and donee lived jointly in one house as wife and husband, no strict proof of delivery of possession would be necessary for donee would be considered in possession of property in question though donor even if donee's name was not specifically entered in revenue record.
10. Now according to the law laid down by the Honourable Supreme. Court and this Court, it was the duty of the plaintiff to. Prove the execution of,the documents and fact of living together in the same premises. The execution of documents has not been denied by the donor as he himself categorically mentioned in his written statement that he has revoked his deed, so meaning thereby the document existed, that is why the, necessity arose for its revocation. As regards the factum that both the .Spousei lived together, it has been admitted by the DW-1 Nazir Hussain at, page 70 of this file in cross-examination. {{URDU TEXT}} Even from this evidence, it is clear that even durinthe pendency of this suit =the parties were living in the same premises and the donor used' to live with Hussain Bibi plaintiff. So this is otherwise not the case of the petitioner that there was any dispute between the spouses and they. Were living separately. So the law laid down by the Honourable Supreme. Court and this Court in judgments mentioned above is fully applicable in this case. So far as the objection of the learned counsel for the petitioner that the respondent has not made any amendment in the suit after remand, the learned counsel, has misread the plaint as the following addition has been mentioned in the Plaint:- {{URDU TEXT}} The fresh description was inserted after the remand which is sufficient for the identity of the land.
Even otherwise, this Court in a series of judgments has held that the consolidation operation does not affect the rights which have been accrued through the valid documents. In this behalf, the judgments relied by the learned counsel for the petitioner PLD 1973 L 637, PLD 1966 L 1171, 1970 Law Notes 873, NLR 1981-68. The other point which has not been pleaded by the petitioner nor taken in their pleadings about the factum of Shia and now at this stage he has tried to argue that Section 157 .Is applicable for the Shia sect not the Section 156 of the Mohammaden Law, this argument cannot be raised at this stage as the law laid down by the Honourable Supreme Court and this.
Court is very clear - "the presumption is that Mohammaden is Sunni and is governed by Hanfi Law".
According to these judgments the law laid down by the Honourable Supreme, Court and this Court is clear that unless any person pleads and proves himself otherwise, he will be presumed to be sunni. On this account, the petitioner cannot get any benefit at this stage by merely raising this ground and for that purpose the judgments are AIR 1933 L 38, 1989 CLC 1591, PLD 1961 L 431, PLD 1965 SC 134 and PLD 1975 L 46. In view of my exhaustive discussion in the foregoing paras, I am not inclined to dilate upon any other grounds or points raised by the petitioner's as well as the respondent's counsels because it will have no material effect on case of either party.
11. For what has been discussed above, I fully concur with the view/findings delivered by both the Courts,' below and this revision petition being meritless is dismissed accordingly.
Civil revision .