AMIN-UD-DIN KHAN, J. --- Through this civil revision, petitioners-plaintiffs have challenged the judgment & decree dated 14.07.2005 passed by learned Addl. District Judge, Khushab, whereby the appeal filed by them was dismissed, and the judgment & decree dated 28.01.2005 passed by learned Civil Judge, Khushab, whereby the suit for declaration filed by the petitioners-plaintiffs was dismissed.
2. Briefly, the facts as leading to this civil revision are that the plaintiffs-petitioners on 16.12.1978 filed a suit for declaration challenging therein a decree of Civil Court, Joharabad in the suit titled "Dost Muhammad, etc. v. Muhammad Hassan, etc." dated 25.10.1978 with regard to the suit property measuring 1801-kanals, 18-marlas, the detail of which is mentioned in the head note of plaint. The written statement was filed and suit was contested. Learned Trial Court framed issues and invited the parties to .Produce their respective evidence. Both the parties adduced oral as well as documentary evidence. The suit was dismissed on 03.10.1981. An appeal was preferred before learned first Appellate Court. Vide order dated 20.07.1983 learned first Appellate Court remanded the matter to learned. Trial Court, who framed an additional issue No. 11 on 10.10.1983 and vide judgment & decree dated 28.01.2005 dismissed the suit. The appeal was filed before learned first Appellate .Court, which also met with the same fate vide judgment & decree dated 14.07.2005.
Hence, this civil revision.
3. Learned counsel for the petitioners-plaintiffs argues that both the Courts below fell in error while ignoring the previous litigation, which went upto the august Supreme Court with regard to the property measuring 856- kanals, which was transferred in favour of petitioners-plaintiffs in a family settlement by their father, namely Hafiz Muhammad Hassan; that the Propositus of parties, Hafiz Muhammad Hassan was owner of land measuring 2261-kanals, 18-marlas, he transferred 856- kanals in a family settlement in favour of plaintiffs, which was challenged and matter went upto the august Supreme Court of Pakistan, where the leave was refused; that their suit for declaration of ownership of that land was decreed, appeal was dismissed and civil revision No. 1918 of 1983 was dismissed on 16.05.2000, then the respondents filed a petition for leave to appeal before the august Supreme Court, which was also dismissed on 27.05.2003, therefore to the extent of their entitlement of 856-kanals as family settlement was finalized and when this 856-kanals of land be excluded from total ownership of the propositus, the remaining properly does not become 1801-kanals, 18- marlas; that even on this score claim of defendants-respondents is void; that when at the time of alleged gift Muhammad Hassan was not owner of 1801-kanals, 18-marlas, therefore no possession has been 'transferred in favour of respondents and even on that score the alleged gift is nullity in 'the eye of law. Learned counsel tried to argue the case on the basis that the alleged gift was made during "Marz-ul-Maut" as the propositus died on 07.11.1978 and further he was insane at the time of his death and aged about 90 years; that the defendants-respondents failed to prove necessary three ingredients of gift, offer, acceptance and delivery of possession; that the findings recorded by both the Courts below are result of misreading, non-reading of valuable evidence produced by the petitioners-plaintiffs. Learned counsel lastly stated that learned Trial Court has not recorded the evidence after remand of case, therefore violated the remand order.
4. On the other hand, learned counsel for respondents No. 1 to 3 argues that both the Courts below came to the conclusion that when the property measuring 856- kanals has been adjudicated upto the august Supreme Court in favour of plaintiffs-petitioners, therefore that property has been excluded from total ownership of the propositus/original owner, namely Hafiz Muhammad Hassan and that the remaining property will be presumed that same has been gifted to the respondents-defendants No. 1 to 3. Learned counsel further states that there are concurrent findings of facts recorded by two Courts below and ordinarily this Court does not interfere with the concurrent findings of learned Courts below unless any material illegality or infirmity is shown therein. It has been further argued that when the arbitration proceedings came into the knowledge of present petitioners,, they moved an application before the Court under Order I, Rule 10 of the CPC, which was dismissed and even they have challenged the same before the High Court; that even the father of parties moved an application for setting aside ex parte proceedings, learned counsel has referred Ex.D-29 which is reply of application in the above- referred suit, wherein the petitioners have admitted that Muhammad Hassan has transferred whole of his property to his legal heirs. Learned counsel has referred Ex.D-21 to argue that in this plaint titled "Ghous Muhammad, etc. v. Dost Muhammad, etc." in Para 4 whereof, the age of father of parties has been mentioned as 80 years and in Para 6 it is stated that he is under influence of defendants No. 1 to 3. Further stated that the defendants-respondents in their written statement in the above-said suit, which is Ex.D-28, clearly stated that the suit property has been transferred in their names through gift; that the petitioners-plaintiffs have no cause of action to file the suit, as they have admitted the transfer in favour of respondents-defendants; that no one from plaintiffs' side appeared as a witness in affirmative evidence, they opted to get, recorded the statement of one of the plaintiffs at the stage of rebuttal and said statement cannot be considered as affirmative evidence; that when no one appeared from the plaintiffs' side in affirmative evidence, therefore suit was not proceedable, as in this case when the gift and a decree of Court where the award was made rule of the Court, were challenged, therefore without statement of plaintiffs suit was not proceedable because the pleadings cannot be considered as evidence.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. I have scanned the whole record of case minutely. This is not a case of gift of property through oral mutation but the gift of property has been act recorded by the parties in shape of agreement of reference to the Arbitrator and then proceedings of Civil Court through which it was made the rule of Court. As I have mentioned the arguments of learned counsel for the respondents- defendants that case of petitioners-plaintiffs is self-contradictory. At one place their case is that the father of parties was mentally incapacitated to transfer and conversely at other place their Case is that because of "Marz-ul-Maut" the transaction is invalid. In my humble view, both these pleadings are self-contradictory, self-destructive also and even through the documentary evidence the defendants proved that it was pleaded by the plaintiffs themselves in another suit, certified copy of which has been produced as Ex.D-21 and Ex.D29. It is the case of petitioners- plaintiffs that whole of property has been transferred by Hafiz Muhammad Hassan to his legal heirs and further that he is aged about 80 years and wants to gift the property to defendants No. 1 to 3. I have noticed that it is not a case where the oral gift has been challenged. The petitioners have challenged the transfer of property through award made rule of the Court, of property gifted in favour of respondents-defendants. Further that the alleged gift is on behalf of their father. It is not proved that their father never appeared before the Court in arbitration proceedings and the rule of Court is not in accordance with law. When they have challenged the proceedings of Court, which culminated into the rule of Court, plaintiffs were bound under the law to appear at least in the witness-box and make a statement on oath with regard to their assertions and pleadings.
7. In simple cases of transactions through oral mutations etc., the rule of shifting of onus is applicable and that is when a person challenging the transaction appears before the Court and makes a statement on oath before the Court according to his pleadings that he has not transferred the property, then automatically the onus shifts upon the beneficiary of transaction. In this case, the transfer is through the rule of Court and even then none of the plaintiffs bothered to appear in affirmative evidence, rather one of the plaintiffs opted to appear at the time of rebuttal evidence. I am clear in my mind that the statement of plaintiff which was recorded at the time of rebuttal, cannot be read in the affirmative evidence because the defendant has no opportunity to rebut the affirmative part of evidence of plaintiff recorded after the close of defendants' evidence.
In this case none of the plaintiffs appeared in the affirmative evidence, therefore no question of shifting of onus to prove upon the beneficiary. Arises. Furthermore, when the case was remanded and an additional issue No. 11 was cast, even then the plaintiffs opted not to produce any oral evidence after framing of this issue.
8. I have noticed that the pleadings and evidence of plaintiffs- petitioners are self-contradictory, as they pleaded that their father was unable to move and he was conscious- less at the time of alleged transaction, the transaction is bad due to "Marz-ul-Maut" and that the transaction is bad due to non-fulfilment of three ingredients of valid gift in accordance with Section 149 of the Mohammadan Law, therefore all these pleas are self-contradictory and are even against the documentary evidence led by the respondents-defendants. Moreover, when learned counsel for the petitioners-plaintiffs questioned that as the plaintiffs have claimed 856-kanals in a family settlement, whether the defendants were given any property in that family settlement? The answer is that no property has been given to any other son or daughter by Hafiz Muhammad Hassan. This fact also goes against the petitioners-plaintiffs. In case in hand, when the parties to gift have admitted the factum of gift before the Court in the arbitration proceedings, therefore after the death or donor the plaintiffs become third party as they are not party to the gift transaction, in this eventuality in my view, a third party cannot raise Objection or ask to declare the gift nullity on the basis of non-delivery of possession. Even on the record it is not proved that the possession was not delivered under the gift to the defendants.
9. I have also noticed that the application for making award the rule of Court was filed on 11.04.1978, which is visible from Ex.D-18 and presumably the matter of entering into arbitration and issuance of the award is prior to that date and as the matter was stayed due to the reason that present petitioners filed revision before this Court, which is evident from Ex.D-7 and after dismissal of said revision on 11.10.1978, on the move of parties learned Trial Court recorded the statement of parties on 25.10.1978 and made award the rule of Court, whereas said Hafiz Muhammad Hassan died on 07.11.1978, therefore by no stretch of imagination it can be said that the gift was under "Marz-ul- Maut" as the matter of gift is several months before his death, when nature of disease was also not proved. For proving a transaction during "Marzul-Maut" it is the basic fact which is required to be pleaded and proved that transferor was in fear of death and he transferred the property under the said fear. The disease was of such nature where fear of death was natural. No such facts have either been pleaded or proved.
10. In the light of what has been discussed above, the findings recorded by both the. Courts below are in accordance with the law and facts on record, which need not be interfered with by this Court while exercising jurisdiction under Section 115 of the CPC. Consequently, this civil revision having no force is dismissed with no order as to costs.
Civil review .