' FAROOQ ALI CHANNA , J.---The applicants through the instant Civil Revision Application have called in question the judgment and decree dated 31-8-2009 and 8-9-2009 respectively passed by learned IIIrd Additional District Judge, Karachi (Central) (hereinafter referred as Appellate Court) in Civil Appeal No, 152 of 2007, maintaining the judgment and decree dated 31-10-2007 and 7-11-2007 respectively passed by learned 'Ind Senior Civil Judge, Karachi (Central) (hereinafter referred as trial Court) dismissing the Suit No,1069 of 2002 filed by the applicants.
2. Concisely facts of the case are that the applicants filed Suit No,191 of 1993 for declaration and possession in this court, that Mansoor Baig the respondent No,2 had purchased the Industrial Plot No,C-1/26, Sector 6-B, admeasuring 1000 Square Yards, situated at New Karachi Township, Karachi (hereinafter referred to as suit property) from its original owner Chaudhary Munawar Ahmed. The applicant No,2 namely Muhammad Ashraf Mirza subsequently purchased the suit property from respondent No,2 under sale agreement against sale consideration of Rs,6, 00,000 (Six Lacs). The respondent No,2 executed General Power of Attorney dated 1-6-1989 in favour of the applicant No,2, on the basis of that General Power of Attorney the applicant No,2 gifted the suit property to his wife Mst. Mehar Parveen the applicant No,1 and executed the registered deed of declaration of oral gift dated 17-10-1989. It is further case of applicants that in the month of March 1989, Shahid Iqbal the respondent No,1 approached the applicant No,2 and requested him that he may be permitted to use the suit property for a period of six (6) months and to start his business thereon, meanwhile he will arrange suitable place for his business and would deliver back the suit property. The applicant No,2, accorded such permission, however, the respondent No,1 later on refused to deliver the possession to the applicant No,2 claiming himself to be the owner of suit property and also issued threats of dire consequences if the applicant No,2 invoked legal action for possession of the suit property.
3. The respondent No,2 did not appear before trial Court to contest the matter therefore the case against him was ordered to proceed ex parte, however the respondent No,1 in pursuance of court notice filed written statement, denying the claim of applicant No,2 and stated that he has not taken the possession of the/ suit property from him in the year 1989 and that he was put in possession of suit property in the month of December, 1986 as tenant by Chaudhary Munwar Ahmed the original owner, who subsequently sold the suit property to the respondent No,2, from whom he had purchased the same under sale agreement against sale consideration of Rs,40,00,000, he paid Rs,50,000 at the time of execution of sale agreement with the respondent No,2, he made further payment of Rs,3,00,000 in the month of September, 1989, thereafter despite his approach repeatedly, the respondent No,2 did not execute the registered sale-deed in his favour, therefore he filed Suit No,59 of 1992 for specific performance of the contract.
4. This court decreed the Suit No,191 of 1993 filed by the applicants for declaration of possession vide judgment dated 4-12-2001. The respondent No,1 moved an application under Order IX, Rule 7, C.P.C, the same was dismissed for non-prosecution, he filed another application under Order IX, Rule 13 read with section 151, C.P.C. During pendency of said application, due to change of pecuniary jurisdiction the suit was transferred to the court of learned IVth Senior Civil Judge, Karachi (Central) and was renumbered as Civil Suit No,1069 of 2002. Learned IVth Senior Civil Judge after hearing the counsel for both the parties allowed the said application under Order IX, Rule 13, C.P.C. And set aside the judgment and decree dated 4-12-2001 and framed the following issues:- "(1) Whether the plaintiff No,1 is the owner of the property in question?
(2) Whether defendant No,1 is licensee in the said property and is liable to vacate the same and hand over possession thereof to the plaintiff No, 1 ?
(3) What relief, if any, are the plaintiffs entitled to? Thereafter the Appellate Court had framed the following amended issues on 22-4-2004, which are as follows:
(4) Whether the suit is maintainable under the law?
(5) What should the decree be?"
' Both the parties led their evidence before the trial Court, who after affording an opportunity of hearing to counsel for both the parties dismissed the suit of the applicants vide judgment and decree dated 7-2-2005 and 10-2-2005 respectively. The applicants assailed the said judgment and decree in Civil Appeal No,44 of 2005, which was allowed and the judgment and decree was set aside, the case was remanded back to the trial Court for fresh decision on the basis of evidence available on record. The case thereafter was transferred to learned IInd Senior Civil Judge, Karachi (Central) who decided the case and dismissed the suit of the applicants again vide impugned judgment and decree dated 31-10-2007 and 11-7-2007 respectively maintained by the Appellate court in Civil Appeal No,152 of 2007 vide judgment and decree dated 31-8-2009 and 8-9-2009 respectively, which are impugned in this civil revision application.
5. I have gone through the impugned judgment of the trial Court and scanned it consciously. The trial Court has decided the suit, issue-wise by discussing the evidence with cogent reasons. The main issue was in respect of the maintainability of the suit. A The trial Court on the basis of evidence has come to the conclusion that the applicants have failed to produce any evidence that the suit property was gifted by original owner Mansoor Baig the respondent No,2 to Mst. Mehar Parveen the applicant No,1, or its physical possession was handed over to her.
6. Admittedly the applicant No,2 on the basis of General Power of Attorney, while executing the registered declaration and confirmation of oral gift deed had acted as an agent of donor i,e, the respondent No,2, as such the trial Court has also examined the sanctity of General Power of Attorney and formulated question as to whether attorney can make declaration of gift on behalf of principal, the trial Court while deciding the said question has referred to a case reported as PLD 2007 Lahore 467 (Muhammad Jalil and 4 other v. Muhammad Sami and 8 others), which is reproduced as under: "A Muslim in the matter of gift, divorce etc. Can confer the authority to an agent. But where it is the personal act of the principal, which is dependant upon his own decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whim of the agent, rather it is the sole prerogative of the donor, which cannot be delegated or deputized. However, once the decision is taken, and the donor makes a declaration, only thereafter an agent for the accomplishment of the object can be appointed. A muslim cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntary transfer of the property to another made gratuitously and without consideration. It is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self-consideration of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision cannot be delegated to an agent. The donor himself has to make the gift, where after he can confer the authority upon his agent to take necessary steps for the proper implementation/ execution of the transaction."
7. The trial Court has dismissed the suit after considering the evidence led by both the parties and dictum referred hereinabove. The findings of the trial Court were assailed in Appeal No,152 of 2007, the Appellate court has decided all the issues more elaborately on the basis of evidence led by both the parties and case laws, referred by them. The Appellate Court has observed that it was primary duty of the applicant No,2 to prove that the power of attorney executed by Mansoor Baig was a valid document in terms of Article 117 of Qanun-e-Shahadat, 1984, which burden the applicant No,2 has failed to discharge, the Appellate Court in this respect is fortified to a case of Maqsood Ahmed and others v. Salman Ali (PLD 2003 SC 31). The Appellate court has also considered and discussed the legal status of the declaration and confirmation of oral gift deed and the mutation of property on the basis of said gift deed in favour of applicant No,1 and declared the same to be invalid and in violation of settled principles of law.
8. Learned counsel for the applicants has contended that the trial Court has observed erroneously that the applicant No,1 was not put in possession, he has contended that admittedly the respondent No,1 was tenant of Chaudhary Munwar Ahmed the original owner of the suit property, after the purchase of property he became the tenant of respondent No,2 till the suit property was gifted to the applicant No,1, as such constructive possession deemed to have been delivered to the applicant No,1 and thereby all the three ingredients of gift were completed and gift became absolute. In support of his contention learned counsel has relied upon the case laws reported as 1989 CLC 1467 (Khursheedul Islam v. Mrs. Qamar Jahan), 1980 CLC 872 (Atta Muhammad v. Jan Muhammad Khan and another), 1981 CLC 527 (Ahmad Yar and another v. Muhammad Aslam), PLD 1979 S.0 (AJ&K) 245 (Saida v. Pinnu and another).
9. Conversely, learned counsel for the respondent No,1 has contended that suit property is situated in Karachi and as per address provided by the applicants, the respondent No,2 also resides permanently at Karachi, whereas the Power of Attorney was executed at Peshawar without plausible explanation, which creates doubt in its genuineness, as such both the courts below after considering the above admitted facts and circumstances of the case have declared the execution of Power of Attorney by Mansoor Baig the respondent No,2 in favour of Muhammad Ashraf Mirza the applicant No,2 to be invalid and on the basis of said Power of Attorney the execution/registration of confirmation of oral gift deed to be an invalid document.
' Learned counsel has further contended that the plaint was not filed by the competent person, as per the case of applicants the applicant No,2 had gifted the suit property to the applicant No,1, as such he has no more right over the subject property authorizing him to file suit. However in view of the gift of suit property the applicant No,1 was the only competent person to file suit but neither she has signed the plaint nor appeared before the trial Court. Learned counsel for the applicants has contended that the applicant No,2 has filed the suit and signed the plaint on behalf of applicant No,1 as her legally constituted attorney, however no such Power of Attorney is placed on record, as such the suit itself has legal flaw. Furthermore, it was not the case of the applicants that the applicant No,1 obtained the constructive possession of the suit property from the respondent No,1, who at the time of oral gift in her favour was possessing the suit property as tenant of respondent No,2, the case of applicants was that in the month of March, 1989, the applicant No,2 handed over the possession of the suit property to the respondent No,1 on his request for a period of 6 months to establish his business, who subsequently refused to vacate the suit property, as such one of ingredient of handing over the possession of gifted property to make the gift complete/ absolute is missing/not proved.
10. Besides the discussion mentioned above, I may mention that the revisional, jurisdiction of this court to interfere with, the concurrent findings of two courts below is to be exercised if the subordinate courts have exercised the jurisdiction not vested in them or have failed to exercise jurisdiction so vested in them or if the courts below have committed material procedural irregularities and illegalities in the instant case the concurrent findings of both the courts below are based on the evidence available on record led by both the parties. No material irregularity or illegality has been pointed out in the proceedings by the counsel for the applicants, nor there are glaring circumstances in his favour on the record, as such no case has been made out to interfere with the concurrent findings of both the courts below such action would not be justifiable in the circumstances. Accordingly the civil revision application is dismissed.