' IRFAN SAADAT KHAN, J.---This Revision Application has been filed against the order dated 27-10- 2009 passed by the learned IInd Additional District and Sessions Judge, Karachi Central, whereby the judgment and decree dated 27-4-2007 and 30-4-2007 were set aside and the matter was remanded to the trial Court for deciding the case on merits in Civil Appeal No,81 of 2007.
2. Briefly stated, the facts of the case are that applicant No,1 is the widow of one late Nawab-ur- Rahman and other applicants are her sons and daughters. Respondent No,1 filed a suit for partition and cancellation of gift in the court of IInd Senior Civil Judge, Karachi Central bearing No,976 of 2006 against the applicants and respondents No,2 to 14. The matter proceeded before the learned Judge who after finding the claim to be misconceived, rejected the same vide his order dated 27- 4-2007. Being aggrieved with the above order, an appeal was filed before the District and Sessions Judge, Karachi Central bearing Civil Appeal No,81 of 2007 who, after hearing both the parties at considerable length, set aside the order and remanded the case back to be decided on merits afresh. It is against this judgment that the present Revision Application has been filed.
3. Mr. Muhammad Yaseen Azad advocate appeared on behalf of the applicants and stated that in the year 1969 the quarter Plot bearing No,65/23-B, Area Liaquatabad, Karachi admeasuring 80 sq.
Yards was leased out to Fatima Bi by the Karachi Development Authority and PT-I was also issued in her name. That late Abdul Rahman had contracted 3 marriages and respondents Nos.1 to 14 are the legal heirs of late Abdul Rahman. It is stated by the learned counsel that since the said property belonged to Fatima Bi, her children and grand-children could only claim the right of inheritance and not the children of other wives of her husband. He, in this regard, invited my attention to Lease Deed as well as PT-I Forms. The learned counsel further stated that the said Fatima Bi in the year 1982 gifted the said property to her son Nawab-ur-Rahman vide Gift Deed dated 5-9-1982 and after the death of Nawab-ur-Rahman the present applicants are his legal heirs. He stated that the said gift deed was mutated in the name of late Nawab-ur-Rahman and, in this regard, invited my attention to Gift Deed, Mutation Order etc. He further stated that after the death of Abdul Rahman, the children of late Abdul Rahman from the other wives were residing in separate houses whereas his third wife namely Fatima Bi and her five children are residing in the suit property. Late Abdul Rahman died in the year 1964 and Mst.Fatima Bi died in 1995, however, prior to the death of Fatima Bi in the year 1982 she gifted the said property to her son Nawab-ur-Rahman. He states that it is to be noted that the respondents have not challenged the lease deed and gift deed and ownership of Fatima Bi till filing of the suit. As per the learned counsel, the said Nawab-ur-Rahman died on 12-5- 2002, leaving behind the present applicants. The legal heirs of Nawab-ur-Rahman then applied for Letter of Administration before the District and Sessions Judge being S.M.A. No,508 of 2004 and the learned Court after fulfilling codal formalities, issued Letter of Administration, as per rules in favour of the applicants. That according to the learned counsel, on 4-10-2006 an application for revocation of the said Letter of Administration was filed by one of the respondents, which application was dismissed by the court vide order dated 23-12-2006. Thereafter that all the respondents joined hands together and filed Suit bearing No,976 of 2006 against the applicants.
4. Learned counsel submitted that it is only the legal heirs of Fatima Bi who could challenge the said gift and the respondents have no authority under the law to challenge the same: He states that the respondents have approached the court With unclean hands as the said gift deed was made in 1982 and the subsequent approaching to this court by the respondents is misconceived.
He states that the learned trial Court after examining each and every aspect of the case and the merits has rightly dismissed the claim of the respondents whereas the appellate court was not justified in setting aside the same. He submits that the respondents were not competent to file the case and the appellate court has erred in law in not taking into consideration this fact and has incorrectly remanded the case to the trial Court. He submitted that the order passed by the appellate court, thus, is illegal. The learned counsel has further stated that once a gift is made, it could not be cancelled. A question was asked by the bench that how he is aggrieved by the order of the appellate court as the appellate court has simply remanded the matter back for fresh adjudication and no grievance appears to have caused to him to which he submitted that as the order of the appellate court was illegal there was no occasion to set aside the matter that is why he has challenged the same. He further stated that this court has the jurisdiction to convert an appeal into a revision. In support. Of his above contentions the learned counsel has relied upon the following decisions
(i) 1987 SCMR 1492 (Bahadur Khan v. Mst. Naimat Khatoon and others)
(ii) 1990 CLC (Lahore) 2027 (Allah Buksh v. Mst.Bakht Bhari and others)
(iii) 1992 CLC 582 (Mst.Salama Begum v. Ulfat Rasool and others)
(iv) 1992 CLC (Punjab) 602 (Manzoor Hussain v. Raja Shah and others)
(v) 2007 SCMR 231 (Ghulam Muhammad v. Mian Muhammad and others)
(vi) 2013 MLD (Peshawar) 360 (Wali Khan v. Waheed Ghani)
(vii) 2010 SCMR 05 (1drees v. Muhammad Parvez)
(viii)PLD 2013 Balochistan 26 (Registrar, High Curt of Baluchistan v. Abdul Majeed and others)
(ix) 1994 SCMR 818 (Mst. Shumal Begum v. Gulzari Begun: and others)
5. Mr. Naveed Ahmed Advocate has appeared on behalf of respondent No,1 and stated that the suit for cancellation of gift was filed when the respondent No,1 came to know that a Letter of Administration has been issued in favour of the plaintiff. He states that respondent No,I is the son of the first wife of late Abdul Rahman and Mst. Fatima Bi was his third wife and no such gift was ever made by him and the claim of the plaintiff regarding so-called gift is totally false. He further stated that the trial Court was not justified in dismissing the suit filed by respondent No,1 and when the matter was explained in detail to the appellate court, the matter was rightly set aside. He submitted that the applicants had, behind the back of the respondent No,1 and other respondents who are also legal heirs of late Abdul Rahman by playing fraud, obtained the Letter of Administration which legally they were not entitled to. He states that even the application for grant of Letter of Administration filed by the applicants was barred by limitation and the court was not justified in entertaining the same. In support of his above contention the learned .Counsel has relied upon the decision given by the Supreme Court of India in the case of Kshitish Chandra Bose v. Commissioner of Ranchi (1982 PSC 641).
6. Mr. Abdul Matin Khan Advocate has appeared on behalf of respondents Nos.2 to 14 and stated that the lower court has not exceeded its jurisdiction as the order has been passed under Order XLI, Rule 23, C.P.C. Which is squarely applicable to the instant case. He submitted that the trial Court has exceeded its jurisdiction by not considering the application under Order VII, Rule 11, C.P.C. And that is why the appellate court was justified in setting aside the same. He states that the parameters of Order VII, Rule 11, C.P.C. Have not been fulfilled in the instant case. In support of his above contentions the learned counsel has relied upon the following decisions:-
(i) PLD 2009 Karachi 38 (Attaullah and 6 others v. Sanaullah and 5 others)
(ii) 2009 CLC 529 (Feroz Hussain and 2 others v. Executive Engineer, Mitharao Division, Mirpurkhas and 4 others)
(iii) PLD 1981 Karachi 604 (Syed Khadim Ali. Shah v. S.M. Zia and 2 others)
(iv) 2009 YLR 786 (Aysha Woolen Mills v. Messrs Industrial Exports)
7. Mr. Muhammad Yaseen Azad in his rebuttal stated that the matter is not barred by limitation and on this point he placed reliance on the following decisions:--
(i) 1982 CLC 1472 (Syed Ghulam Nabi and others v. Officer on Special Duty Federal Land Commission and others)
(ii) 1986 MLD 1398 (Yaqoob v. Mst. Zammarud Bano)
(iii) 1991 SCMR 1566 (Mahmood Khan v. Muhammad Hasan and 7 others)
(iv) 1994 SCMR 826 (Jevan and others v.. Federation of Pakistan and others)
(v) 1998 SCMR 1223 (Nazar Gul v. Islam and others)
(vi) 2000 SCMR 1287 (Dr. Shabbir Ahmed and 4 others v. Abdul Haleem and others)
8. I have heard all the learned counsel at considerable length, perused the record as well as the law and the decisions relied upon.
9. It is seen from the record that there are three distinct groups claiming themselves to be the owner of the property. Group No,1 comprises of the present applicants who are the legal heirs of late Nawab-ur-Rehtnan, who was the son of late Fatima Bi. The second group comprises of legal heirs of other wives of late Abdul Rehman and the 3rd group comprises of the legal heirs of late Fatima Bi. It is an admitted position that the plot was leased out to Fatima Bi in the year 1969 through properly executed lease deed. The said lease deed and PT-I Forms were issued in her name and are available on record. Hence it is only the children and grandchildren of Fatima Bi who can claim the right of inheritance in the said property and not the children of other wives of the husband of late Fatima Bi. It is also an admitted position that a Civil Suit bearing No,976 of 2006 was filed on 13-12-2006 by the respondent No,1 only against the present applicants and the respondents Nos.2 to 14 by claiming himself to be one of the owner of the said property as according to him the said property belonged to his late father Abdul Rehman, which was illegally transferred by late Fatima Bi in her name. The respondents Nos.1 to 8 are the legal heirs of late Abdul Rehman from his first wife whereas the respondent Nos.9 and 10 are the legal heirs of late Abdul Rehman from his second wife.
10. It is an admitted position that the said property was gifted to Fatima Bi by late Abdul Rehman in his lifetime and relevant documents in this regard are available on record, which documents have not been challenged. It is also an admitted position no claim whatsoever has been made by the respondents Nos.1 to 10 with regard to the ownership of the said property by late Fatima Bi and it is only in the year 2006 when they woke up from their slumber and made a claim against her. Even for arguments sake if it is assumed that the said gift was made fraudulently in the name of late Fatima Bi but the question is why the respondent No,1 or the respondents Nos.2 to 10 kept mum in that period,,, which has not been explained. Hence, I am of the view that so far as the claim of respondents Nos.1 to 10 is concerned in respect of the above property the same is devoid of any merit and is hereby rejected.
11. Now coming to the claim of respondents Nos.11 to 14, who are the legal heirs of Fatima Bi is concerned a perusal of the statement made by the said respondents would reveal that in the said statement it has been mentioned that since the said house was too small to accommodate a number of persons, late Nawab-ur-Rehman advised her mother late Fatima Bi that after demolishing it the same may be reconstructed. It is also seen from the record that he asked his mother to gift the said property to him as he was working in a Bank and that he would obtain a loan from the bank for construction purposes and thereafter the said gift was made in his favour by his late mother, thereafter the said house was constructed. It is also seen from the record that the respondents Nos.11 to 14 have mentioned that it was not justified on the part of their late mother to have gifted the said property to late Nawabur-Rehman meaning thereby they had admitted that the said property was gifted by late Fatima Bi to late Nawab-ur-Rehman in her lifetime which was in their knowledge. Here a question would arise as to what action was taken by the respondents Nos.11 to 14 for cancellation of the said gift as the said respondents have also come to the surface only when the Letter of Administration was issued in favour of the applicants and thereafter joined the other respondents.
12. It is also an undeniable fact that late Nawab-ur-Rehman constructed the whole house, which fact has not been denied by the other legal heirs. The .Trial Court while dismissing the contention raised by respondent No,1 has categorically observed that late Fatima Bi was the only owner of the said property, which was never challenged in her life time by the respondents Nos.1 to 10, but whole situation aggravated when the applicants obtained the Letter of Administration in their favour from the lower Court. The learned Court also observed that a mere claim cannot be entertained in presence of legally executed documents and since gift deed, lease deed and PT-I Form have been duly executed in the name of late Fatima Bi, hence the claim of share in the property made by legal heirs of first wife and second wife of late Abdul Rehman was not justified. It is also an undeniable fact that the respondents Nos.11 to 14 have not challenged the veracity of the gift that the said gift was fake in any manner. The claim of respondents Nos. 11 to 14 was only that the said gift had been obtained fraudulently, which aspect has to be proved by them alone. The record further reveals that the statement given by the respondents Nos.11 to 14 is also contradictory as at one place they had stated that the said gift had been obtained by late Nawab-ur-Rehman from late Fatima Bi fraudulently whereas, on the other hand they had stated that through the said gift deed they had been deprived of legal right hence the same be cancelled.
13. Here a question would arise as to how the respondents Nos.11 to 14 would prove that the said gift was obtained fraudulently when they impliedly admit that late Nawab-ur-Rehman obtained the said house by way of gift from late Fatima Bi in her life time for whatever may be the reason. Hence 'in my view, respondents Nos. 11 to 14 also cannot turn around and now term the said gift tp be a fraudulent act as everything happened in front of them and they were fully aware of the situation.
Had they any objection in respect of the said gift, the respondents Nos.11 to 14; would have asked their mother not to gift the said property to late Nawab-ur-Rehman, which had not been done as they had admitted that in order to construct the house, for obtaining the loan from the bank Nawab-ur-Rehman had to surrender ,ownership documents of the said property and he received the said gift and reconstructed the house from the money borrowed by him from the bank.
14. It is also an undeniable fact that the factum of the gift was only challenged when the Letter of Administration was issued in favour of the applicants and not before that and no plausible explanation has been furnished in this regard by respondents Nos. 11 to 14, when they were in full knowledge regarding the gift being made to late Nawab-ur-Rehman, whey they kept mum and did not challenge the same. The appellate Court fell in error whiling disposing of the matter by mentioning that the matter requires recording of evidence, in my view on the basis of facts available on record, the matter could have been easily disposed of by the appellate Court as well.
The decisions relied upon by the counsel representing the respondents No,1 to 14 are thus found to be distinguishable.
15. It is also seen that after the gift., when the property was mutated in the name of late Nawab-ur- Rehman in the year 1982 and PT-I Form was issued in his name no objection was raised by the respondents No,11 to 14 and after a gap of 24 years suit was filed in the year 2006 by the respondent No,
1. It is also an undeniable fact that S.M.A. No,508 of 2004 was granted on 25-1-2005 and the letter of administration was obtained on 29-4-2005 whereas on 4-10-2006 i.e, after more than 1 & half years an application for revocation of the said letter of administration was filed and no explanation was available with the respondents for such delay. It is a settled proposition of law that the cancellation of gift could only be made within three years whereas in the instant case it is an admitted position that the gift was made to late Nawab-ur-Rehman in the year 1982 whereas the suit for cancellation was filed in the year 2006 i.e, after 24 years which appears to be barred by limitation.
16. The reliance of learned counsel on Order 41, Rule 23, C.P.C. Is also found to be misconceived as it is for a Court to pass necessary order of remand. The law framers have used the word ''may" by fully empowering the Court to remand a case if it thinks fit. Hence when a Court could itself dispose of the matter, in such situation remand is not warranted. It is also interesting to note that one of the witness of the said gift made by late Fatima Bi to late Nawab-ur-Rehman is the respondent No,11 himself who is the brother of late Nawabur-Rehman. It is also seen that the appellate Court while remanding the case to the trial Court could not find any misreading and non-reading in the order of the trial Court. In my view the appellate Court should have given cogent reasons for remanding which has not been done. Here 1 would like to refer to a decision given by the Honourable Supreme Court of Pakistan in the case of Arshad Amin v. Messrs Swiss Bakery and another reported in 1993 SCMR 216 wherein it has been held that:-- "There is no dispute that the entire evidence on the issue involved in the ejectment case was on record and even on remand there is no order for recording additional evidence in the matter. The learned Additional Controller has been directed to reassess the evidence and give his findings again. This clearly shows that the evidence on record is sufficient to give a finding. In these circumstances the remand by the Appellate Court was not proper".
17. In view of the above decision and the reasonings noted above the appellate Court in my view was not justified in remanding the matter, the order of the appellate Court is thus' set aside. This Revision is therefore allowed and the order passed by the trial Court is hereby restored. Pending application is also disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.