ABDUS SATTAR ASGHAR, J. --- This civil revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 15.7.1999 passed by the learned Additional Sessions Judge, Pakpattan Sharif whereby respondents' appeal against the judgment and decree dated 16.10.1993 passed by the learned Civil Judge, Pakpattan Sahrif was accepted.
2. Main arguments of the learned counsel for the petitioners are as under:-
(i) that Khushi Muhammad predecessor-ininterest of the respondents being friend of Muhammad Yar predecessor-in-interest of the petitioners used to reside with him; that Khushi Muhammad wanted to be a Sarbrah Lamabrdar of Mehr Din Lambardar therefore, he asked Muhammad Yar to gift out his property in his favour in order to be appointed as Sarbrah Lambardar and promised to return the property and also reduced it into writing dated 20.9.1958 (Exh.P.1); that Muhammad Yar gifted out the suit land in favour of Khushi Muhammad vide Mutation No. 2, dated 31.12.1958; that it was a conditional/contingent gift; that the impugned mutation No. 2, dated 31.12.1958 was merely Benami and all legal requirements of the gift were not fulfilled, because physical possession of the gift were not fulfilled, because physical possession of the gifted property remained with Muhammad Yar and it was never delivered to Khushi Muhammad; that Muhammad Yar continued to cultivate the land and utilize its profits;
(ii) that in the year 1987 Muhammad Yar asked Khushi Muhammad to transfer back the suit property who showed reluctance whereupon Muhammad Yar moved an application to the Chairman, Conciliation Court, Union Council No. 90 where Khushi Muhammad accepted the claim of Muhammad Yar and promised to return the property whereupon Chairman, Conciliation Court pronounced the decision vide order dated 10.2.1987;
(iii) that meanwhile Khushi Muhammad died and after his death the respondents claiming themselves legal heirs of Khushi Muhammad have got attested inheritance Mutation No. 2045, dated 18.4.1990 pertaining to the suit land in their favour;
(iv) that the learned first Appellate Court has failed to appreciate the material ocular and documentary evidence produced by the petitioners; that the impugned judgment and decree dated 15.7.1999 passed by the learned Appellate Court is against law and facts, based on misreading and non-reading of evidence, untenable and liable to set aside. Learned counsel for the petitioners has placed reliance on the case-law i.e. (i) Muhammad Afzal Vs. Matloob Hussain and others (PLD 2006 SC 844), (ii) Muhammad Bakhsh Vs. Zia Ullah and others (1983 SCMR 988) (ill)
Fida Hussain through Legal Heirs Muhammad Taqi Khan and others Vs. Murid Sakina (2004 SCMR 1043), (iv) Abdul Aziz Vs. Khuda Dad Khan (2004 SCMR 1046), (v) Barkat All through Legal Heirs and others Vs. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938), (vi) Ghulam Abbas Vs. Province of Punjab through District Collector, Jhang and 9 others (2005 CLC 1816 Lahore), (vii)
Khalid Mehmood Vs. Asghar A.I Bhatti (2005 CLC 1821 Lahore), (viii) Muhammad Shafiq and another Vs. Maqsood Ahmad and 2 others (2002 CLC 1372 Lahore), (ix) Siraj Din Vs. Mst. Jamilan and another (PLD 1997 Lahore 633),
(x) Nazir Hussain and 2 others Vs. Mst. Aziz Ftima and 3 others (2006 YLR 1254 Lahore),
(xi) Mst. Khurshid Bibi and others Vs. Ramzan and others (2006 CLC 1023 Lahore), (xii) Khizar Hayat and another Vs. Pakistan. Railways through Chairman, Pakistan Railways, Lahore and 2 others (2006 CLC 1028 Lahore).
3. On the other hand, it is resisted by learned counsel for the respondents with the following contentions:-
(i) that Muhammad Yar gifted the suit land in favour of Khushi Muhammad duly accepted by the donee; that it was complete gift alongwith delivery of possession; that it was neither Benami nor a contingent gift; that the impugned agreement dated 20.9.1958 (Exh P.1) is a forged and fabricated document prepared by Muhammad Yar with the connivance of alleged witnesses namely Muhammad Din, his close relative and Naseer Din his tenant; that scribe of Exh.P.1 is not produced; that the alleged impugned agreement Exh.P.1 was neither referred nor produced before the revenue officer at the time of attestation of mutation of gift therefore it is of no legal effect; that any condition derogatory to the completeness of the grant is void and without any legal effect in terms of Para 164 of the Principles of Muhammadan Law by D.F. Mulla; that Khushi Muhammad has been cultivating the suit land as owner in his lifetime; that entries of Khasra Girdwari if any contrary to the fact are of no legal effect; that in the meanwhile Khushi Muhammad also sold out and exchanged some land out of the gifted property; that Khushi Muhammad also mortgaged the suit land alongwith his owned land in favour of Zarai Taraqiati Bank to get loan for the tractor; that in the meanwhile consolidation of holdings in the village also took place; that the petitioner Muhammad Yar never raised any objection on any of the above transactions during the life-time of Khushi Muhammad, therefore petitioners' plea that gift in favour of Khushi Muhammad was conditional or Benami is devoid of any force;
(ii) that Khushi Muhammad never appeared before the Chairman, Conciliation Court Union Council No. 90 in connection with any application lodged by Muhammad Yar petitioner; that the Chairman, Conciliation Court was not competent to take up the dispute of civil nature relating to the gift; that the alleged proceedings if any before the Chairman, Conciliation Court were illegal, without lawful authority, mala fide, without jurisdiction, fabricated, void and of no legal effect against the rights of the respondents and are liable to set aside;
(iii) that after the death of Khushi Muhammad inheritance mutation No. 2045, dated 18.4.1990 is lawfully passed in favour of the respondents as legal heirs of Khushi Muhammad and that the petitioners having no concern whatsoever with the legacy of Khushi Muhammad have no right to question the legality of the inheritance mutation in favour of the respondents;
(iv) that the learned Trial Court has miserably failed to appreciate the ocular and documentary evidence while decreeing the suit in favour of the petitioners vide judgment and decree dated 16.10.1993 assailed by the respondents before the learned Appellate Court through appeal; that the learned Appellate Court appreciating the ocular and documentary evidence available on the record in a salutary manner lawfully passed the impugned judgment and decree accepting the appeal, setting aside the judgment and decree passed by the learned Trial Court and dismissed the suit; that the impugned judgment and decree passed by learned first Appellate Court do not suffer from any legal or factual infirmity and the petitioners have no case to invoke the revisional jurisdiction of this Court. Takes reliance upon (i) Mst. Kaneez Bibi and another Vs. Sher Muhammad and 2 others (PLD 1991 SC 466), (ii) Muhammad Sadiq Vs. Sardar and others (1995 SCMR 710), (iii)
Asmatullah Vs. Allah Nawaz and others (2007 MLD 1329 Lahore), (iv) Muhammad Mansha Vs. Hashmat All and another (2010 YLR 1498 Lahore), (v) Madeline Kathleen Ahmed and another Vs. Muhammad Khalid Qureshi and. Another (1992 MLD 507 Karachi), (vi)` Muhammad Shafiq and another Vs. Maqsood Ahmad and 2 others (2002 CLC 1372), (vii) Ghulam Abbas Vs. Province of Punjab through Punjab District Collector, Jhang and 9 others (2005 CLC 1816 Lahore), (viii) Hakim Khan Vs. Aurangzeb and others (NLR 1980 SCJ 328) and (ix) Abdul Hameed and others Vs.- Muhammad Mohyuddin Siddique and others (1996 CLC 227 Lahore).
4. Learned counsel for the parties are given patient hearing. Record is also perused carefully with their able assistance.
5. It is a case of judgments at variance therefore points raised by learned counsel for the parties in their` arguments need consideration in the light of the ocular and documentary evidence available on the record besides relevant case-law on the subject.
6. Petitioners have categorically admitted that the suit land was gifted out by their predecessor-in- interest Muhammad Yar in favour of Khushi Muhammad predecessor-in-interest of the respondents vide mutation No. 2, dated 31.12.1958 (Exh.P/1/A). Main emphasis of the learned counsel for the petitioners in this regard is that the gift was Benami and contingent and the same was made merely to enable Khushi Muhammad to become Sarbarah Lambardar of the village who had promised to return the suit land. In support of his version the petitioner has produced an agreement dated 20.9.1958 (Exh.P.1) allegedly executed by Khushi Muhammad. In order to establish the delivery of possession of the suit land as vital ingredient of completion of gift, Ahmad A.I (DW-1) in his testimony has categorically stated that possession of the gifted land was given to Khushi Muhammad at the time of Hiba and he has been cultivating the same. This very part of his statement is not cross-examined by the petitioners. He denied the suggestion that the suit land was ostensibly gifted out in favour of Khushi Muhammad, however, he admitted it correct that produce of the land used to be obtained by Muhammad Yar. He clarified in the next" sentence that Khushi Muhammad used to live with Muhammad Yar therefore, he has been depositing his total income with Muhammad Yar. As regards agreement (Exh.P.1) dated 20.9.1958 allegedly executed by Khushi Muhammad suffice to say that the same was neither mentioned nor produced before the Revenue Officer at the time of attestation of mutation No. 2, dated 31.12.1958. Muhammad Din (PW-1) attesting witness of Exh.P.1 while facing cross-examination admitted that Muhammad Yar petitioner was his sister's husband Behnoi. He also stated that Exh.P.1 was scribed by Abdul Aziz deed-writer, however, he expressed his ignorance to the suggestion as to said deed-writer had entered the same in his register. Abdul Aziz scribe of Exh.P.1 is not produced in the witness-box. DW- 1 has also not mentioned that on what date,' month or year Exh.P.1 was executed by Khushi Muhammad. The next attesting witness of Exh.P.1 is Naseer Din PW.2. He too has failed to tell the date, month or year of its execution. Admittedly he is tenant of the petitioners since long. Therefore, testimonies of Muhammad Din PW-1 and Naseer Din PW-2 with regard to execution of Exh.P.1 on account of their close relationship with Muhammad Yar petitioner are not safely reliable. No independent witness is produced by the petitioners in order to substantiate their plea that the gift was Benami or conditional. It is admitted on the record that out of the gifted land Khushi Muhammad had sold out 15 kanals of land in favour of one Muhammad Din. It is also admitted on the record that out of the suit land Khushi Muhammad had mortgaged one acre of land in favour of Zarai Taraqiati Bank to obtain loan for tractor. It is obvious that Khushi Muhammad has been receiving benefit and usufruct of the land by cultivating and disposing of some part thereof in his. Life-time. It therefore, repells petitioners' plea that he has been receiving benefit and usufruct from the suit land. Petitioners' plea that the gift was Benami transaction therefore is devoid of any force.
7. This Court in the case titled Mst. Khan Bibi Vs. Mst. Safia Begum and others (PLD 1969 Lahore 338) has explained the definitions and concepts of 'gift' under, Muhammadan Law in para No. 6 in the following manner:- "Definition and various concepts of gifts:
6. Gift under Muhammadan Law is a transfer of property or rights by one person to another and it may be of two types from the point of view of its subject-matter, namely, (a) hiba which is confined only to the transfer of rights of full ownership of the corpus of any property, or (b) ariat, which is the transfer of some limited interest in the benefits, produce, profits, usufruct or in the use of the property (for example of right to reside in a house for a limited period while retaining the ownership of the corpus or a right to fish in a stream, the right to take the produce of a garden, the recurring income of partnership or dividends on shares or interest on Government loan or stock). Some of these related legal concepts have some technical names as well as for example sukna is a right to reside in a house for life, ruqba is a right to the usufruct for a fixed period and Umra is a life grant of the use or usufruct.
The distinction between Hiba and Ariat is very significant and runs throughout the Muslim Law of Gifts. If this distinction is kept in view, there will be no difficulty in solving the relevant question which might arise in that behalf. The salient points of difference between Hiba and Ariat are mentioned in the form of a table below:- Sr.No. Hiba Ariat 1 The donor must be a person who has attained majority.It is not necessary that he should have attained majority.
2 The subject of the hiba must be the ownership of some property (Mal Corpus)It is a transfer of use of usufruct (and not ownership) Muslim Law recognizes transfer of an interest for life in certain property , but not the transfer the corups (ownership) for life.
3 A hiba must not be conditional or limited in time. Conditions if attached would be void and the hiba would be valid. It may be subject to conditions limiting the duration or use. Here conditions are valid and interest of the donee cannot be enlarged into absolute ownership.
4 It must be immediate and not contingent or future. The use or usufruct may relate to a future time.
Produce (Manafi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. See Hedayat page 478.
5 Rights under a Hiba are transferable and heritable. Rights are transferable and heritable (in the absence of an express provision).
6 A hiba is not revocable in some cases. It is revocable at the will of the donor.
7 The doctrine of Musha applies. The doctrine of Musha does not apply.
8 Acceptance is necessary to Complete a Hiba.Acceptance is not condition.
9 A Hiba may be made to any person (including a juristic person who is in existence and who is capable of holding property or to a child in the womb who is born within six months of the date of Hiba. An ariat may be to an unborn person provided that he is in existence when the interest is opened out to him.
The above discussion will show that in considering the nature of a transaction the English word 'gift' is generic and must not be confused with the technical term of Islamic Law Hiba and Ariat, according to which alone a transaction in a given case should be scrutinized."
At this stage it may be advantageous to reproduce Section 164 of Principles of Muhammadan Law by D.F. Mulla, which reads as under:- "Gift with a condition. -- When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it."
8. Learned counsel for the petitioners has laid- much emphasis on his argument that the matter between Muhammad Yar and Khushi Muhammad stood resolved by Chairman, Conciliation Court, Union Council No. 90, Pakpattan Sharif vide order dated 10.2.1987 (Exh.P.5). The respondents have denied participation of their predecessorin-interest namely Khushi Muhammad in the said proceedings contending that the same were illegal, without lawful authority, mala fide, without jurisdiction, fabricated, void and of no legal effect against the rights of the respondents. Bare reading of the order of the Chairman, Union Council No. 90 (Exh.P.5) transpires that Muhammad Yar appeared before the Chairman alongwith his two sons namely Muhammad Akram (PW-3) and Shahadat A.I whereas attendance of Khushi Muhammad is noted alongwith his two representatives namely Niaz Ahmad son of Shah Muhammad and Sultan son of Bakhsha. Petitioners have failed to produce said Niaz Ahmad and Sultan in the witness-box to substantiate their assertion that khushi Muhammad had ever participated in the proceedings before the Chairman, Conciliation Court or had ever acknowledged the agreement dated 20.9.1958 or promised to return the land to Muhammad Yar.
9. It is noteworthy that the Schedule attached to the Conciliation Courts Ordinance, 1961 comprises two parts, i.e. Part-I and Part-II. Section-A of both the parts pertains to criminal cases whereas Section-B of both the parts pertains to civil cases. It may be expedient to reproduce hereunder Section-B of both the parts which reads below:-- Part-I Section-B Civil Cases
1. Suit for the recovery of money due on contracts, receipts or other documents.
2. Suit for the recovery of movable property, or for the value thereof.
3. Suit for compensation Metropolitan and Cantonment Boards when the amount claimed, or the price of movable property, does not exceed fifty thousand rupees." for wrongfully taking or damaging movable property.
4. Suit for damages by cattle trespass.
Part-II Section-B---civil cases All cases (excepting those mentioned in Section-B of Part-I of this Schedule), in which the value of the claim does not exceed one lac rupees.
(10) Pending cases. -- The Conciliation Courts Ordinance, 1961 (XLIV of 1961), shall not apply to cases referable under the said Ordinance to conciliation which, immediately before the commencement of this Ordinance, and pending in any Civil or Criminal Court, and such cases shall be disposed of by those Courts as if this Ordinance had not been promulgated: Provided that, if all the parties to any such case' agree to have the same decided by a Conciliation Court, the proceedings thereof shall terminate. And the case shall be referred to conciliation in accordance with the provisions of the said Ordinance.
Obviously dispute between the parties did not fall within the ambit of Section-B of Part-I. In order to bring the dispute within the ambit of Section-B of Part-II it was incumbent upon the petitioners as well as Chairman of the Conciliation Court to clearly determine that value of the claim do not exceed Rs. 1,00,000/-. Order dated 10.2.1987 Exh.P.5 fails to reveal that the Chairman had ever determined the value of the claim before assuming the jurisdiction. It is also pertinent to mention that Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973 contemplates that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Mere recital that both the parties had consented to the jurisdiction of the Conciliation Council against the law is no ground to assume the jurisdiction.
10. Order dated 10.2.1987 (Exh.P.5) bears that parties had effected compromise and Khushi Muhammad had accepted the petitioners' claim before the Chairman Union Council. At this stage it may be expedient to reproduce Rules 28 of the Punjab Conciliation Courts Rules, 1982, which read below:-- "28. Admittance of claim or dispute by respondent. - When in obedience to the summons or otherwise the respondent appears and admits the claim or dispute and satisfies the claim in the presence of the Chairman of the Union Council or the member concerned of the ward,' as the case may be, no Conciliation Court shall be constituted."
11. At this juncture Rules 14 and 15 of the Rules ibid are reproduced which read below:-- "14. Decision by Conciliation Court. -- (1) The decision of the Conciliation Court shall be recorded by the Chairman of the Conciliation Court in the register in Form-I.
(2) Every decision recorded under sub-rule (1), shall indicate whether such decision is unanimous and if not, the ratio of the majority by which it has been arrived at.
(3) Every decision of the Conciliation Court shall be pronounced in open Court by the Chairman of the Conciliation Court.
15. Form of decree. -- After the decision of every case, a decree shall be drawn in Form-V, which shall be signed by the Chairman of the Conciliation Court, who shall then make the entries in the register of decrees in Form-VI."
Above-cited Rules clearly manifest that after the decision it was incumbent upon the Conciliation Court to draw a decree in Form-V as stipulated under Rule 15 ibid. The petitioners have Miserably failed to furnish any decree sheet pertaining to the decision Exh.P.5.
12. Sub-section (4) of Section 9 of the Conciliation Courts Ordinance, 1961 prescribes procedure for enforcement of decrees. It reads below:-- "Sec. 9(4). -- Where the satisfaction of a decree can be had otherwise than by payment of compensation, the decree may be presented for execution to such Civil Court as the District Judge may, by special or general order, direct, and such Court shall thereupon proceed to, execute the decree as if it were a decree passed by itself."
Admittedly the petitioners had never filed any execution petition for enforcement of any decree of the Conciliation Court before the District Judge.
13. For all above it is crystal clear that the Order dated 10.2.1987 (Exh.P.5) passed by the Chairman,Co nciliation Court being illegal and without jurisdiction does not contain any evidentiary value as against established rights of the respondents.
14. Nutshell of the above discussion is that the learned Appellate Court while scanning the petitioners' oral and documentary evidence in the light of relevant provisions of law has rightly accepted the appeal and set aside the judgment and decree dated 16.10.1993 passed by the learned Civil Judge. I do not find any jurisdictional error, factual or legal infirmity or material irregularity in the impugned judgment and decree dated 15.7.1999 passed by the learned Additional Sessions Judge. Petitioners therefore have no case to invoke the revisional jurisdiction of this Court.
15. For the above reasons, this revision petition having no merit is dismissed.