' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal, with the leave of th Court has arisen out of the judgment of the High Court dated 30-11-2002, whereby the second appeal filed by the respondents, has been accepted.
2. The precise summary of the facts giving rise to this case is that initially Afsar Khan and 6 other plaintiffs filed a declaratory suit in the Court of Sub-Judge Pall andri on 27-11-1984 for cancellation of gift-deed registered on 7-12-1970 in favour of defendant-appellant relating to the suit-land comprising of Survey No, Nos.1627 (2603) measuring 10 kanals and 5 marlas, 1638 (2541 ) measuring 3 kanals, 1642 (2555/1) measuring 2 kanals and 14 marlas, 1771 (3512) measuring 24 kanals and 8 marlas, 1627 (2602) measuring 1 kanal and 3 marlas, 1628 (2603) measuring 20 kanals and 7 marlas 1773 (2494) measuring 18 kanals and 17 marlas, 1643 (2555) measuring 15 canals and 2 marlas, 1826 (3586) measuring 7 kanals and 7 marlas, 1349 (7846) measuring 18 kanals and 7 marlas, 1349 (2871) measuring 18 marlas, 1349 ( 2876) measuring 2 kanals and 3 marlas 1657/1 (3327) measuring 32 kanals and 16 marlas, 1706 (3474) measuring 47 kanals and 9 marlas, 1651 (2560) measuring 33 kanals and 1 marla, 1651 ( 2561) measuring 21 kanals and 19 marlas, 1790 (3521) measuring 6 kanals and 4 marlas, 1790 (3523) measuring 5 kanals and 5 rnarlas, 1790 (3522) measuring 4 kanals and 6 marlas, 1933 /1403 (3102), measuring 16 kanals and 10 marlas, 1934/1403 (3103) measuring 16 kanals and 11 marlas, 1933/1403 (3101) measuring 29 kanals and 16 marlas, 1934/1403 (3104) measuring 9 kanals and 5 marlas, 1794 (3532) measuring 6 kanals and 10 marlas and 1794 (3530) measuring 5-kanals and 17 marlas, total measuring 360 kanals situated in village Pattan Sher Khan, Tehsil and District Sudhunuti. The plaintiffs averred in their plaint that the alleged gift-deed is obtained fraudulently, secretly, and without delivery of possession of the gifted, property. It was further claimed in the plaint that the donee-defendant kept the alleged gift-deed secret till the death of the donor and almost after 14 years' period the mutation on the basis of this alleged gift-deed in favour of the defendant was got entered and attested in the Revenue Record.
This fact was disclosed when the plaintiffs approached the revenue authorities for attestation of inheritance mutation in their favour due to the death of Muhammad Hussain, donor.
3. The suit was contested by the defendant-appellant, who filed written statement on 16-2-1985. In the written statement the defendant averred that the suit is time-barred. The plaintiffs have got no, cause of action as they are not legal heirs of the donor. He also claimed that he is in possession of the suit property.
4. The pro forma respondents Nos. 15 to 19 (as entered in original plaint) according to record, initially submitted written statement and supported the version of the defendant, Muhammad Aziz, however, later on they filed application for transposing them as plaintiffs in the suit. The application was resisted by the real defendant. After conducting due legal process, the trial Court resolved this controversy in the terms that except Muhammad Hanif and Muhammad Younis, rest of the pro forma respondents, neither engaged nor authorized any counsel to submits written statement on their behalf, therefore, the written statement allegedly submitted on their behalf is without any authority and of no legal effect. The application for transposing as pro forma respondents in the line of plaintiffs was accepted. After resolution of this controversy the trial Court framed issues in the light of pleadings of the parties and the parties were allowed to produce evidence in support of their respective contention. After completion of required legal proceedings the trial Court decreed the suit vide judgment dated 6-1-1990 in favour of the plaintiffs except Muhammad Hanif and Muhammad Younis. The defendant feeling aggrieved, challenged the propriety of the judgment and decree of the trial Court in appeal before the Additional District Judge Poonch/Pallandri. The first appellate Court, through its judgment and decree dated 31-5-1992 accepted the appeal and set aside the findings of the trial Court. The plaintiffs-respondents filed appeal in the High Court against the judgment and decree of the Additional District Judge Poonch, but the same was dismissed by the High Court vide judgment and decree dated 15-5-1999. However, on appeal this Court vide judgment dated 24-8-1999 set aside the judgment of the High Court and remanded the case to the High Court with the following observation for fresh decision:-- "After giving due consideration to the points raised at Bar, we are of the view that some important aspects of the matter have not been the properly adverted to by High Court. The question as to what would be the effect of the evidence of Muhammad Aziz Khan, respondent, if any, that his wife lived with the donor in his life time when no such point has been raised in the written statement by the defendant-respondent. Similarly; the question as to how the suit is hit by law of limitation because, prima facie, .The suit is governed under. Article 91 of the Limitation Act according to which the limitation for setting aside an instrument or the cancellation of the same would start from the date when the plaintiff had the knowledge of the facts which entitle him to challenge the instrument. It is also important to point out that if donor or donee were residing together at the time of gift deed in the house built over the property gifted, formal delivery of possession may not be necessary but in the instant case irrespective of the fact that the point was not pleaded in the written statement, the wife of the donee. Lived with donor and not the donee. Thus, the question arises as to whether the defendant-respondent would be deemed to be in joint possession with Muhammad Hussain, donor in the aforesaid circumstances.
' In the light of what has been stated above, We accept the appeal set aside the impugned judgment and decree of the High Court and remand the case with the directions that it shall rehear the arguments in light of the observations made above and decide the same afresh according to law. The High Court after receiving the file shall give notice to the parties or their counsel before hearing the appeal".
5: After remand, the leaned Chief Justice of the High Court through the impugned judgment accepted the appeal by setting aside the judgment of the first appellate Court while cancelling the gift-deed declaring it ineffective due to non-delivery of possession. Thus, this appeal is brought before this Court. During the hearing a moot point regarding the status of plaintiffs-respondents was attended and on 13-12-2010 the following order was passed:-- "After hearing the parties at some length and during that course perusing the record we have noted that a specific objection was raised in the written statement by the appellant-defendant, herein, that Muhammad Hanif and others, respondents-plaintiffs, are not heirs of Muhammad Hussain, therefore, they being not legal "heirs, couldn't file the suit. When the replication was filed, it was pleased by the respondents Muhammad Hanif and other that they are related with the donor in the pedigree-table but no details of exact relation were stated. This objection and observation goes to the roof of the case, therefore, we direct the District Judge Rawalakot to record evidence of the parties on the following newly-framed issue:-{{URDU TEXT}} ' While transmitting the original file of the Court to the District Judge Rawalakot he is directed to record evidence of the parties positively within two month from the date of receipt of the file. The appeal remains pending and shall-be placed before the Court when the finding of the District Judge on the above framed issue is recorded."
' Through the above mentioned order, the case was sent to District Judge Poonch for determination of the newly-framed issue. The District Judge, on 19-3-2011 re-submitted the case after recording evidence of the parties on the issue and gave findings declaring the plaintiffs-respondents as legal heirs of the donor. After submission of the findings of the District Judge, the parties were called for arguments. The appellant has submitted his written arguments, whereas the counsel for the respondent argued the case.
5-A. The most important controversial point involved in this appeal is whether the respondents fall within the pedigree-table of legal heirs of the donor, Muhammad Hussain or not? After remand of the case by this Court to the learned District Judge the parties were provided opportunity to adduce evidence on this specific issue. The respondents have produced both; the oral and the documentary evidence. The plaintiffs-respondents' witness named Liaqat Ali and Altaf Husain (one of the plaintiffs) have unanimously stated that the plaintiffs-respondents and donor are interrelated. The plaintiff, Sahib Jan is undisputedly real sister of deceased Muhammad Hussain, whereas the other plaintiffs are descendants of Said Ali Khan, the true grandfather of the deceased. The respondents have also brought on record a certificate issued by the revenue authorities regarding non-availability of the pedigree-table's record which is annexure "AA". A pedigree chart annexure "BB" prepared by Muhammad Riaz Bhatti, the local public pedigree writer, has also been tendered in evidence. The respondents through this oral and documentary evidence brought on record have established the fact that they being descendants of Said Ali Khan, the true grandfather of the deceased, donor, Muhammad Hussain are legal heirs. According to Sharia law the descendants of true grandfather inherit as residuary, thus IE Sahib Jan, plaintiff, being real sister entitled for one half as sharer whereas, the other plaintiffs in whose favour degree has been passed by the High Court, being the decedents of true grandfather are entitled for one half of inheritance of deceased, Muhammad Hussain, as residuaries. Our this view is fortified from the principle of law enunciated by the apex Court of Pakistani in a case reported as Dhman and others v. Ghulam Sarwar and others (1985 SCM R 947). Conversely the appellant has only got his own statement recorded and couldn't succeed to produce any documentary evidence in rebuttle. Even he has not cross-examined the witnesses regarding their material deposition on the moot question in issue. The learned District Judge after thorough analysis of the evidence brought on record by the parties has drawn the conclusion that the respondents are legal heirs of the donor Muhammad Hussain, thus their suit is maintainable. Our own study of the record also reveals that the findings recorded by the learned District Judge are well reasoned and based on appreciation of evidence.
The appellant has failed to point out IE any misreading and non-reading of the evidence in this regard. Thus, we have no reason to disagree with the findings recorded by the learned District Judge on the specific issue, therefore, the findings recorded by the District Judge are affirmed and upheld.
6. After affirmative resolution of the newly-framed issue in favour of the plaintiffs-respondents the next important point is the point of limitation. According to the admitted fact the gift-deed was registered on 7-12-1970 but the donee has not got its mutation entered and attested in the Rovenue Record till the death of the donor and neither there is any entry in the revenue record or reference of the alleged gift-deed till the death of the donor. It is for the first time in the year 1984 after the death of the donor the mutation regarding gift-deed was entered and attested after a period of almost 14 years. The perusal of record reveals that just after a few months of attestation of this mutation, this suit has been filed. The conduct of the appellant specially non entry of the gift-deed in the revenue record till the death of the donor and remaining mum for the period of more than 14 years is sufficient to create preponderance of probability that the fact of execution of gift-deed has been intentionally kept secret till the death of the donor. Thus the contention of the respondents-plaintiff as asserted in their plaint finds support from this conduct of the donee, defendant-appellant. The trial Court and the High Court has rightly treated the suit within limitation.
7 The oral evidence adduced by both the parties on the question of delivery of possession of the gifted property is not helpful to draw a definite conclusion. Although the witnesses produced by the plaintiffs-respondents have stated that the possession of the gifted property has never been delivered to the donee-defendant and the plaintiffs are in possession of the suit property. Whereas, conversely the witnesses produced by the defendant have stated that the possession of the property was delivered to the donee-defendant. But the perusal of Revenue Record, which has been brought on the file of the case, reveals that the donee-defendant's possession relating to the suit property has never been recorded. The plaintiffs-respondents produced Munshi Muhammad Nawaz, Patwari, who tendered in evidence the copies of record of rights Exh.PA, PA/1, PA/2 and Khasra Girdawari Exhs.PB and PB/1. He has clearly stated that till Kharif 1985, The Revenue Record doesn't find any entry regarding the possession of the defendant-donee relating to the suit property. In the civil cases the celebrated principle of law is to record findings in favour of the party in whose favour the material brought on lI record creates preponderance of probability. Thus, the cumulative analysis and appreciation of evidence creates preponderance of probability in favour of plaintiffs-respondents. On this point, this Court has already enunciated principle of law in cases reported as 2010 SCR 231, 1982 CLC 1309 and PLD 1981 SC (AJ&K)
118. Thus the findings recorded by the High Court and the trial Court, on the issue of delivery of possession, appears to be well reasoned according to the facts and record of the case.
8. So far the assertion of the appellant-defendant that he lived with donor, thus be treated as joint possessor of the property is concerned, in para-18 of the impugned judgment the learned Chief Justice High Court has elaborately' dealt with this point and it has rightly been held that a question of fact which has not been raised in pleadings, cannot be looked into by the Courts because in civil cases the Courts are bound to decide the cases in the light of the assertion of the parties as brought on record in their pleadings. Even otherwise, the defendant-appellant has failed to bring on record any sort of evidence to prove that he has permanently resided with the donor and thus being donee he has became joint possessor of the property. As it has already been hereinabove discussed that the fact of registration of gift-deed has been kept secret till the death of the donor, thus in the light of cumulative appreciation of evidence and material the learned Chief Justice High Court has resolved this question of fact in quite legal manner, which is unexceptionable.
9. We have thoroughly gone through the impugned judgment of the High Court and the subordinate Courts. The impugned judgment of the High Court is well-reasoned and comprehensive. Moreover after recording of affirmative findings by the District Judge on the additional issues framed by this Court, there remains no justification to interfere with the findings of the learned Chief Justice of the High Court. Thus, while upholding the impugned judgment, this appeal is dismissed with no order as to costs.