' AZIZ-UR-REHMAN, J.---Initially the above suit was filed on 28-3-2008 for declaration regarding possession, direction to the defendant No, 1 for handing over of vacant possession of property viz. Sea View Apartment No, 3, Ground floor, Block 40, Sea View Township, Phase V (Extension) DHA, Karachi and car garage bearing No,GF-3/40, both measuring 2100 sq. Yards+ 200 sq. Ft. (herein- onward referred to as the 'Subject Property') to the plaintiff, permanent injunction and mesne profits.
2. Upon service the defendant No, 1 filed her written statement wherein she claimed the ownership of the 'subject property' through gift deed dated 31-3-2005 allegedly executed by the plaintiff. Per averments of defendant No, 1 the aforesaid gift deed was executed by the plaintiff in presence of witnesses in favour of defendant No, 1 voluntarily, with free consent, without any duress, coercion fraud and/or mis representation and after completing all the formalities of an enforceable Gift.
3. Upon receipt the copy of the written statement of defendant No,1 the plaintiff in view of defendant No,l's surprising claim of ownership filed an application under Order VI Rule 17 read with section 151, C.P.C. [C.M.A. No,3532 of 2009] for seeking amendments and relief for declaration in terms as below:--
(13) .That the plaintiff has neither gifted nor ever intended to Gift the subject property to defendant No,1. The Plaintiff is permanent employee of Orix Leasing Pakistan Limited since year 1991 and has never been engaged in any business abroad. The Plaintiff since almost three decades has not left Pakistan and has always remained in Pakistan except his brief visit to UAE in November, 2007 i,e,, after divorce with the defendant No,
1. True copies of Plaintiff's Employers letter dated 8-8-2008; expired passport and current passport are attached as annexure "LI " to" L3"
(17) That the cause of action for filing the above suit against defendant No, 1 firstly accrued to the plaintiff on expiry of Iddat period i,e,, 24-8-2007 secondly on 17-12-2067 when the plaintiff was not allowed to enter. In the subject property by the defendant No, 1 thirdly after expiry of seven days from the date of the legal notice dated 17-3-2008 was served on the defendant No, 1 and after filing of written statement by the defendant No,1 whereof purported Gift Deed dated 31-3-2005 has been filed which still continue day to day till filing of this suit.
(i) Declare that the Gift Deed dated 31-3-2005 in respect of Plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground Floor, Block No,
40. Seaview Township. Phase (Extension), D.H.A, Karachi is forged and fabricated hence void and liable to he cancelled.
4. The aforesaid application [C.M.A. No, 3532 of 2009] for amendments in the plaint was granted with the consent of the learned counsel for defendant No,1 on 24-4-2009.
5. Pursuant to order dated 24-4-2009, amended plaint was filed on 7-5-2009. In response to the amended plaint, defendant No,1 also filed her amended written statement on 23-4-2010.
6. The prayers sought in the amended plaint filed pursuant to order dated 24-4-2009 run as under:-- "(i) Declare that the Gift Deed dated 31-3-2005 in respect of plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground floor, Block No, 40, Seaview Township Phase V (Extension), DHA, Karachi is forged and fabricated hence void and liable to be cancelled;
(ii) Declare that the possession of the plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground floor. Block No, 40 Sea View Township, Phase 5 (Extension) DHA, Karachi and car garage No, GF-3/40, both measuring 2100+200 Sq.Ft, by the defendant No,1 is illegal, mala fide and without lawful authority;
(iii) Direct the defendant No, 1 to hand over the vacant and peaceful physical possession of the subject property to the plaintiff with police aid/assistance of defendants Nos. 2 and 3;
(iv) Direct the defendant No, 1 to pay mesne profit @ Rs,40,000 per month from 24-8-2007 and continue to pay till the possession of the subject property is handed over to the plaintiff by the defendant No, 1;
(v) Permanent injunction restraining the defendant No,I from leasing, forcibly entry, hindering, hampering, abrogating, determining, publishing or threatening to do so the plaintiff's lawful subject property and enjoyment of the same;
(vi) Any other, better or further relief(s) which this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.
(vii) Cost of the pat;
7. The relevant facts in the background leading to the above prayers are as follows.
8. The plaintiff, per assertion in the plaint, is working as Assistant General Manager in Orix Leasing Pakistan Limited at Karachi and has earned good reputation in the Banking and Security Circle.
9. Per assertions, the plaintiff is the owner of the subject property i,e,, Seaview Apartment No, 3, Ground floor, Block 40 Seaview Township, Phase V (Extension) DHA, Karachi and car garage bearing No,GF-3/40, both measuring 2100 + 200 sq. Ft.
10. According to the plaintiff the 'subject property' is owned by him through a declaration of oral Gift Deed dated 18-8-2003 made by his father in his favour. The defendant No,2 (DHA) has also issued mutation letter dated 7-11-2005 in the name of the plaintiff. Per plaintiffs assertion the Cantonment Board Clifton (CBC) has also confirmed the entry regarding the 'subject property' in the 'Record of Rights' in the name of the plaintiff.
11. Defendant No,1, per averments in the plaint is ex-wife of the plaintiff. The plaintiff and defendant No,1 contracted marriage vide Nikahnama dated 11-6-1986. However, subsequently due to the strained relationship between the plaintiff and defendant No,1, the plaintiff ultimately pronounced divorce (Talaq-e-Biddat) vide Divorce Deed dated 24-5-2007. The agreed `Haq-e-Mehar' in the sum of Rs,20,000 (Rupees twenty thousand only) has also been paid to and received by defendant No,l.
12. Per averments, Confirmation Certificate of Divorce' vide letter dated 8-10-1987 has also been issued by the Chairman, Arbitration Council, Cantonment Board, Clifton, Karachi.
13. Out of the wedlock, the plaintiff and defendant No,1 were blessed two sons viz. Umair Farouk Sheikh and Zain-ulQadir Sheikh who are residing willingly with the plaintiff in the house of plaintiffs father. All the expenses of education etc. Are exclusively borne by the plaintiff.
14. Defendant No,1 after divorce, per averments, was permitted to live in the 'subject property' however, for 'Iddat period' only. Since expiry of the 'Iddat Period' the defendant No, 1 still continues to occupy the 'subject property' illegally and without any lawful authority. Despite time and again requests, defendant No,1, is avoiding to vacate the 'subject property'. All the household fittings, furniture, appliances, TV, Air-conditioners, cooking range, crockery, items of all decoration etc. In the 'subject property' have been purchased and are belonging to the plaintiff.
15. According to the plaintiff, defendant No, 1 owns Flat No, 6, 2nd floor, Ammat, Plot No, 63, Jami Commercial Street No, 7, Phase VII, DHA, Karachi but she still continues to occupy the 'subject property' belonging to the plaintiff, of course, unlawfully and illegally. The plaintiff has no other property except the 'subject property' in his name.
16. The plaintiff has specifically denied the alleged gift in favour of defendant No,
1. In para 13 of the plaint it has been categorically averred by the plaintiff that neither he has gifted nor ever intended to gift the 'subject property' to defendant No, 1 as besides sentimental attachment, the plaintiff and his two sons have no other property/house as his own to live therein.
17. Owing to the illegal occupation of the 'subject property' by defendant No,1, the plaintiff and his sons are left with no permanent abode and are thus residing with the father/grandfather. The plaintiff is continuously suffering from mental torture, agony, physical and monitory losses on account of illegal occupation of the 'subject property' by defendant No,
1. The plaintiff thus claims and is entitled for rental income/mesne profit from defendant No,1 for the entire period of illegal occupation.
18. On refusal of vacating the 'subject property', the plaintiff was constrained to serve a legal notice dated 17-3-2008 upon defendant No,1, inter alia, requesting her vacate the 'subject property' within seven days failing which the plaintiff will be compelled to file suit.'
19. No response from defendant No, 1 was received by the plaintiff hence instant suit was filed on 28-3-2008.
20. On the other hand, defendant No,1 has forcefully denied the ownership of the plaintiff over the 'subject property'. Per defendant No,l's assertions 'subject property' indeed was originally belonging to the father of the plaintiff, however vide Gift Deed dated 18th August, 2003 the father of the plaintiff had gifted the same to the plaintiff. The 'subject property', per version of defendant No,1, was gifted to her by the plaintiff vide Gift Deed dated 31-3-2005. Per assertions the Gift Deed in favour of defendant No,1 besides valid is well enforceable in law as having been executed voluntarily and without any coercion and/or pressure. Per assertions of defendant No,1, the possession of the suit property was also handed over to her at the time of execution of gift deed dated 31-3-2005.The defendant No,1 since then is enjoying and using the 'subject property' in her capacity as donee/owner of the 'subject property'.
21. The factum of divorce by the plaintiff through 'divorce deed' dated 24-5-2007 has not been denied. So also the receipt of payment of Haqq-e-Mehar' has also not been denied by defendant No, 1.
' The defendant No,1 has further asserted that all the fittings, fixtures, furniture etc., in the 'subject property' are exclusively belonging to her, and the plaintiff is not within his rights to make any claim over the aforementioned articles, goods etc. The 'subject property' is being furnished, renovated and maintained by the defendant No, 1 in her own right as owner of the 'subject property' through gift deed dated 31-3-2005 without any help of the plaintiff.
22. The allegations of strained relationship between the plaintiff and defendant No,1 has been vehemently denied. The payment of 'utility bills', 'property tax' etc. By the plaintiff 'to some extent has also been disputed. The registration of utilities bills in the name of plaintiff per defendant No,1, is not enough for establishing the ownership over the 'subject property'. Lastly, defendant No, 1 has asserted that the plaintiff is not entitled to any of reliefs as claimed in the suit. Per defendant No, l's averments the suit as framed and filed is liable to be dismissed with cost.
23. Along with the plaint an application, under Order XXXIX Rules 1 and 2, C.P.C. Read with 151, C.P.C.
[C.M.A. No, 2631 of 2008] was also filed with the prayer as below:-- "the defendants Nos. 1 and 2 to maintain status quo of plaintiff's property addressed as Seaview Apartment No,3, Ground floor, Block No, 40, Seaview Town-ship, Phase-V (Extension), DHA, Karachi and Car Garage No, GF-3/40 both measuring 2100+200 Sq.Ft. (subject property) and restore the possession of the subject property in favour the plaintiff who is the lawful owner of the subject property, being illegally occupied by the defendant No,1. "
24. On 1-4-2008 when the aforesaid application came up before the court, apart from notice to defendants, an order for maintaining 'status quo' regarding subject property/suit properly was also passed. The operative part of order dated 1-4-2008 reads as under:-- "Considering the above facts, argued by the learned counsel, it is ordered that status quo should be maintained in respect of the suit properly till 11-4-2008."
25. On a statement, filed by defendant No,3/S.H.
0., Darrakhshan Police Station, [wherein defendant No, 3 has shown his no concern with the factual position involved in the suit], the name of defendant No,3 from the array of defendants was deleted vide order dated 11-4-2008, however, with direction not to involve himself in private dispute.
26. From the record it further reveals that defendant No,2 (DHA) instead of filing any 'written statement' had merely filed a 'statement' on 13-5-2008. The 'statement' filed on behalf of defendant No, 2-DHA is available at page 55 of the court file which reads as follows:-- 'It is respectfully stated on behalf of defendant No,2 (DHA) that suit property is a 'B' Lease, and therefore, DHA has no hold on leased property, as the owner can dispose of the property on the authority of sale/Conveyance deed without knowledge of defendant No, 2 (DHA). Military Estate Officer, Karachi and Sub-Registrar-1, Clifton Town, Karachi are the competent authority to confirm/intimate the correct ownership of the suit property".
27. Insofar as the injunction application [C.M.A. No, 2631 of 2008] is concerned vide order dated 29- 4-2008 status quo was ordered to be maintained till decision of the suit. The relevant and operative part of order dated 29-4-2008 reads as follows:-- "So far as C.M.A. No, 2631 of 2008 is concerned, it is therefore, ordered that status quo order shall be maintained till decision of suit."
28. The parties went on trial and on 24-2-2010 out of the adverse pleadings, the following consent issues were settled:--
(a) Whether the gift deed dated 31-3-2005 is a forged document? If so, what is its effect?
(b) Whether the plaintiff is entitled to the relief sought for?
(c) What should. The decree be?
29. Under the same consent order of 24-4-2010. Mr. Dilawar Hussain, Advocate was appointed as Commissioner for recording the parties evidence through affidavit-in-evidence'. The learned Commissioner after recording of plaintiff's evidence submitted his report of 7-8-2010. The aforesaid report of the learned Commissioner when came up before the court on 25-8-2010 besides taking the same on record the following order thereon was passed:-- "1. The Commissioner has submitted his report that the evidence of the plaintiff has been completed but the defendant No, 1 has only filed affidavit-in-evidence. Thereafter, she failed to appear for the cross-examination and after waiting for a long time, the Commissioner has returned the same in the office with his report. The learned counsel for the defendant No,1 submits that one last chance may be granted to the defendant No,1 to appear for the purposes of cross- examination by the plaintiff. The learned counsel for the plaintiff opposed this request and submits that for the last two years the defendant No, 1 is dragging this case for one and the other reason and his client is suffering.
' After hearing the arguments of both the learned counsel, let last and final chance may be allowed to the defendant No, 1 to appear before the Commissioner on the next date and complete her cross-examination by the learned counsel for the plaintiff. By consent, matter is fixed before the Commissioner on 4-9-2010 at 12-30 p.m. On which date the plaintiff's counsel shall be present for the cross-examination and the learned counsel for the defendant No,1 undertakes to call the defendant No, 1 before the Commissioner, for cross-examination. In case the defendant No,1 fails to appear before the Commissioner, the Commissioner shall be entitled to close her side and return the Commission to this court, immediately thereafter the office will fix the matter for arguments.
30. In terms of the aforesaid order, the matter was referred to the learned Commissioner for cross- examination of defendant No,1 by the learned counsel for the plaintiff. Despite 'last' and 'final chance' under order dated 7-8-2010, however, the defendant No, 1 again failed and/or ignored to appear before the learned Commissioner for adducing her 'evidence' and/or 'cross-examination' by the learned counsel for the plaintiff. The learned Commissioner in view of such position submitted his 2nd report dated 21-9-2010. The report so submitted was taken on record vide order dated 27-10-2010. Being relevant order passed on 27-10-2010 is reproduced as under:-- "Per report dated 6-8-2010 the learned Commissioner had reported the matter to the court stating therein that defendant No, 1 is delaying the process of commission and is not cooperating to adduce her evidence. Such report was taken up by the court and vide order dated 25-8-2010 last chance was granted at the request of learned counsel for defendant No,1 to appear for cross- examination before the learned Commissioner. It further appears that defendant Nod's witness did not appear before the learned Commissioner hence report dated 21st September, 2010 has been submitted by the learned Commissioner stating therein that due to failure on the part of defendant No, 1 to adduce evidence her side has been closed. In the circumstances, Commissioner report is taken on record and the learned Commissioner is directed to return the commission duly executed whereafter office to fix this matter for arguments as per roster."
31. Evidently, before the learned Commissioner, the plaintiff besides filing of his 'affidavit-in- evidence' had also filed 'various documents' along with it. On 5-4-2010 plaintiff's 'deposition' was recorded. In his 'deposition' the plaintiff produced his 'affidavit-in-evidence' as Exh.'P/1' and other documents as Exh.'P/2'to Exh.'P/26' respectively. The said witness was also 'cross-examined' by the learned counsel for defendant No, 1.
32. On the other hand, defendant No, 1 though had filed her 'affidavit-in-evidence' before the learned Commissioner however, she failed and/or avoided and/or ignored to come forward for leading evidence and surrendering herself for 'cross-examination' in rebuttal and/or in support of her stand taken in the written statement.
33. I have heard Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff and Mr. Aijaz Mubarak Khattak, learned counsel for defendant No, 2 and with their able assistance also scrutinized the available record minutely.
34. Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff strenuously argued that the plaintiff is the owner of 'subject property' i,e,, Seaview Apartment No, 3, Ground floor, Block 40, Sea View Township, Phase-V (Extension) DHA, Karachi and car garage bearing No, GF-3/40, both measuring 2100 + 200 sq. Ft. Per learned co tinsel, originally the 'subject property' was owned by the father of the plaintiff, however, the same was subsequently gifted to the plaintiff vide gift deed dated 18-8- 2003 (Exh. P/2). Upon such gift of the 'subject property' mutation in the Office of the Military Estate Officer Karachi Circle, Karachi Cantonment was also effected in the name of the plaintiff vide Letter No, K-15/PDSO/SVA/454/4 dated 24-2-2004 [Exh.P/3]. Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff in support of the plaintiff's ownership made reference to declaration of oral gift deed dated 18-3-2003 [Exh. P/2] mutation letters dated 24-2-2004 [Exh. P/3] and 7-11-2005 [Exh. P/4] issued in favour of the plaintiff and Extract from General Land Register Cantt. 2-A (I) of 24-2-2004 [Exh. P/5] and CBC letter CBC/RS/0846 dated 24-12-2007 [Exh. P/6]. Learned counsel for the plaintiff forcefully contended that all the above documents have gone unchallenged/unquestioned. Per learned counsel defendant No, 1 is the 'ex-wife' of the plaintiff and the marriage of plaintiff and defendant No, 1 was contracted in the year, 1986. Out of the wedlock, the plaintiff and defendant No, 1 have two sons. Per learned counsel children are willingly residing with the plaintiff at the house of their grandfather.
35. Learned counsel for the plaintiff further urged that owing to unpleasant/ constrained relationship between the plaintiff and defendant No,1, the plaintiff ultimately pronounced divorce [Talaq-eBiddat] to defendant No,1 vide 'divorce deed' dated 24-5-2007 [Exh. P/8]. Per learned counsel, agreed 'Haq-e-Mehar' in the sum of Rs,20,000 [Twenty thousand only] has also been paid to defendant No,1. The 'divorce deed' (Exh. P/10] also acknowledges such receipt of 'Haq-e-Mehar'.
Per learned counsel the Chairman Arbitration Council Cantt. Board Clifton has also confirmed the factum of divorce between the plaintiff and defendant No,1 by issuing 'confirmation certificate of divorce' on 8-10-2007. [Exh. P/10].
36. Learned counsel for the plaintiff also contended that 'telephone connection' to the 'subject property' till to date is registered in the name of the plaintiff. However, the registered consumer of 'Sui gas' and 'KESC' are still in the name of the plaintiff's father who had gifted the subject property to the plaintiff vide 'gift deed' dated 18-3-2003 [Exh. P/2]. Per learned counsel, it is the plaintiff who is paying all the utility bills to the utility departments. The plaintiff besides producing the utility bills of PTCL, SSGC Ltd., pertaining to the year 2008 as Exh. P/11 and P/12 has also produced consumer statement issued by KESC as Exh.P/13 with a view substantiate his ownership over the 'subject property'.
37. Learned counsel further contended that the ex-wife of the plaintiff is illegally and unlawfully occupying the subject property. Many times requests for vacating the same was made to her but defendant No, 1 besides ignoring has avoided to vacate the 'subject property'. The defendant No, 1, per learned counsel was permitted to occupy the 'subject property' only during her 'Iddat period'.
Mr. Rafiq Kalwar next argued that the plaintiff has no other abode except the 'subject property'. The plaintiff and his two sons under compelling circumstances are living in the house of father/grandfather of the plaintiff and sons.
38. The 'subject property' was never gifted by the plaintiff in favour of defendant No,
1. The alleged gift deed of 31-5-2005 is a manufactured and forged document and the same has never been signed and/or executed by the plaintiff. Even the alleged gift deed of 31-5-2005 besides not properly stamped does not contain any 'acceptance' by the donee. Per learned counsel the alleged gift deed dated 31-5-2005 as being an un-registered document is void.
' According to the learned counsel for the plaintiff gift deed regarding immoveable of value more than Rs,100 is compulsorily registrable under law. The learned counsel for the plaintiff emphatically argued that 'possession' of the 'subject property' was never delivered to the defendant No, 1 in consequence of any alleged gift. The so-called gift deed of 31-5-2005 besides forged is void and thus not enforceable under law.
39. Per learned counsel, the plaintiff since, 1991 is a permanent employee of Orix Leasing Pakistan Ltd., and has never been engaged in any business abroad. The certificate issued by Orix Leasing Pakistan Ltd., in this regard has also been produced by the plaintiff as Exh.P/16.
40. The learned counsel for the plaintiff also made reference to Exh.P/17 whereby 'property tax' for the year, 2009 regarding the 'subject property' was paid by the plaintiff to Cantonment Board Clifton (CBC).
41. Per learned counsel since 2003, the subject property is mortgaged with Orix Leasing Pakistan Ltd.
The outstanding loan against the 'subject property' as on 30-6-2009 is Rs,3,022,148. The relevant document (Exh.P/9' to Exh.'P/23] pertaining to availment of loan etc., have already been produced by the plaintiff in his evidence. The plaintiff has also produced copy of his expired passport as Exh.P/24 with a view to establish that since 1992, he has not left Pakistan for abroad except for brief visit to UAE in November, 2007, i,e, after pronouncement of divorce to the defendant No, 1 as is evident from Exh.P/25.
42. Mr. Rafiq Ahmed Kalwar next contended that the contents of all documents [Exh.'P/2' to Exh.'P/25'] produced by the plaintiff in his evidence including legal notice as Exh.P/26 have gone unchallenged. On the other hand neither the forged gift deed of 31-5-2005 has been produced nor the alleged witnesses thereon have been examined by the defendant No,1 . Under circumstances, per learned counsel, the suit filed by the plaintiff deserves to be decreed as prayed.
43. Learned counsel for the plaintiff in support of his arguments has placed reliance on the following cases:--
(i) NIJAT ALI V. SHARIF KHAN [REPORTED IN 2012 CLC 1333].
(ii) MST. RAZIA BEGUM AND OTHERS V. ISMAT KHAN [REPORTED IN PLD 2011 PESHAWAR 10].
(iii) SYED ABDULLAH ABIDI V. MST. HIJRA ABIDI AND ANOTHER [REPORTED IN PLD 2009 KAR 252].
(iv) HAFIZ TASADDUQ HUSSAIN V. MUHAMMAD DIN THROUGH LR. s. AND OTHERS [REPORTED IN PLD 2011 SC 241].
(v) OVERSEAS PAKISTANI FOUNDATION AND OTHERS V. SQN. LDR. (RETD.) SYED MUKHTAR ALI SHAH AND ANOTHER [REPORTED IN 2007 SCMR 569].
(vi) TASLEEM KHAN V. SHER GHULAM AND OTHERS [REPORTED IN 2010 SCMR 1422].
44. Heard learned counsel for the plaintiff and defendant No, 2 and also perused the available record.
45. My issue-wise findings are as under.
46. Issue No, 1: Whether the gift deed dated 31-3-2005 is a forged document and if so? What is its effect? Regarding this issue the plaintiff in his plate and 'affidavit-in-evidence' has specifically denied the execution of the gift deed dated 31-5-2005. It has categorically been deposed by the plaintiff that the gift deed relied upon by the defendant No, 1 is a forged document and it does not bear signature of the plaintiff. Despite such averments the defendant has failed to either lead any evidence or examine the witnesses of the alleged gift deed. Even the alleged gift deed of 31-3-2005 has not been brought on record.
47. Mr. Rafiq Ahmed Kalwar learned counsel for the plaintiff in view of absence of any evidence on the part of defendant and/or production of the alleged gift deed dated 31-3-2005 as claimed by defendant No, 1 in her favour, vehemently argued that the alleged gift deed dated 31-3-2005 cannot be taken into consideration under circumstances of the case. Learned counsel further submitted that it is for the beneficiary of a document to establish its genuineness. In case the beneficiary of a document fails to lead any evidence and/or brought such document on record despite of opportunity then in such eventuality the beneficiary of a document would be bound by the evidence come on record from the opposite side. In support of his contention learned counsel for the plaintiff placed reliance on the following cases:--
(i) FEDERATION OF PAKISTAN v. JAFFAR KHAN [REPORTED IN PLD 2010 SC 604], wherein the Hon'ble Supreme Court has observed as under:- "11. Having considered the matter from all angles in the light of material available on record, it appears that the learned trial Court granted more than sufficient opportunities to the petitioners to produce the evidence in support of their claim but they, for the reasons best known to them, failed to produce the same and, as such, learned trial Court rightly decreed the suit on the basis of material available before it.
12. The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court. A party having produced no evidence on its own would have to abide by it, and be bound by such evidence as had come on record.
Written statement cannot he exhibited in the case without the person who filed the same being examined in the Court and cannot be treated as substantive evidence except where such statement amounts to admission of plaintiff's plea. The contention of the learned counsel for the petitioners that the Court has to take into consideration the document on which the petitioners relied upon, has no force as neither the copy of such document was brought on record nor during their cross-examination the witnesses of the respondents were confronted with the said document."
[Underlining is mine]
(ii) RAZIA BEGUM AND OTHERS V. ASMAT KHAN [REPORTED IN PLD 2011 PESHAWAR 10] wherein it was observed as under:--- "It is also well-established principle that it shall be the burden of the beneficiary of any document to establish its genuineness."
48. Insofar as the ownership is concerned, the plaintiff in his evidence has produced various documents including declaration of gift deed [Exh.'P/2'], utility bills [Exh.'P/11 'P/12' and 'P/131, proof regarding payment of property tax [Exh.'P/14] mutation letters [Exh.'P/3' and Exh. 'P/4]. Besides, the evidence led by plaintiff and various documents produced and exhibited as Exh.P/2 to Exh.P/26 have gone unchallenged. Being relevant I would like to refer to some of the relevant portions from the 'divorce deed' dated 24-5-2007 [Exh.P/8]. For convenience purpose the same are reproduced herein as follows:
2. That for the past several years, our relations have been very strained because of an extremely harsh, irksome, insulting and rude behavior of Mrs. Shazia towards me. She had turned to be a nagging, obstinate, disobedient and disloyal wife. She frequently picks up causeless fights/quarrels with me wherein she freely uses very dirty and abusive language against me ...."
6. .... She must therefore immediately leave/vacate my house to live with her real brother/real maternal uncle or with someone else of her choice. Her immediate departure from my house will be vital for the safety of my life as well as of my household and the building of my house.
[underlining is mine]
49. From the above, it is manifestly clear that the 'subject property' has never been gifted in favour of defendant No, 1 as claimed by her. The 'divorce deed' dated 24-5-2007 [Exh.'P/8] and contents thereof have never been objected and/or denied by the defendant No, 1 until filing of her written statement on 28-5-2008. Ex facie, the contents of Exh.'P/8' also belie the defendant No, 1 in her version. Besides there is no 'cross-examination' of plaintiff on the contents of divorce deed [Exh.'P/8'] much less on the contents as reproduced hereinabove. Be that as it may, the presumption would be that the evidence led and the documents produced by the plaintiff be deemed and treated as accepted. On this aspect of the matter reliance can be placed on the case of Muhammad Yasin v. Shabbir Ahmed [Reported in 1985 CLC 2111] wherein it was observed as under:-- Absence of cross-examination on this point clearly shows that assertion made by the landlord is not called in question by the tenant. In support of this view reliance is placed by the learned counsel on Qasim and others v. State PLD 1967 Kar.
233. Although this was a criminal case but the principle laid down in the reported case is that under sections, 137 and 138 of the Evidence Act if there is no cross-examination on the fact deposed in the Examination-in-Chief the presumption is that evidence is deemed to have been accepted by the party against whom it was given. The reliance is also placed on another case Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar 537 in which the principle stated in the above mentioned case is reiterated."
50. Regarding requirements of a valid gift, at this stage it would be appropriate to refer to the case of RAEES MUHAMMAD MUSHTAQ V. HYDER BUX [REPORTED IN PLD 1975 KARACHI 416] wherein while dilating upon the requirements of a valid gift Mr. Justice Agha Ali Hyder, J, (as he then was) has observed as under:- "6. Gift in the language of law means a transfer of property immediately and without any exchange. The requirements of valid gift in the words of Syed Amir Ali, in his commentary on Muhammadan Law, 4th Edition, page 41, are "(a) manifestation of the wish to give on the part of the donor (b) the acceptance of the donee, either impliedly or expressly, and (c) the taking of the subject-matter of the gift by the, donee, either actually or constructively". It presupposes a bona fide intention on the part of the donor to divest himself in presenti of the property and to confer it upon the donee. In accordance with the Muslim Law it is complete once the possession is delivered, subject to an exception only in the case of gift to a minor by his father or other guardian."
51. Further mere recital in the gift deed regarding delivery of possession is not enough as observed by the apex court in the case of ASHIQ HUSSAIN v. ASHIQ ALI [Reported in 1972 SCMR 50]. The relevant observation reads as under:-- "Coming now to the question whether the gift deed has been completed by delivery of the possession of the property in dispute. It will be noticed that the land in dispute was in cultivating possession of the tenants. Ashiq Hussain was a Mukhtar of Ashiq Ali and he was collecting the produce from them Mian Muhammad Shaft, learned counsel for the appellants, has contended that in such circumstances a mere declaration in the deed that possession has been delivered to the donees is sufficient to complete the gift. This contention has no force. This aspect of the case was considered by this Court in the case of Shahshad Ali Shah and others v. Syed Hassan Shah and others (1). It was held in that case that a mere recital in the gift deed that the possession has been delivered to the donees is not enough. In that connection it was observed as under:-- "Even in the case of an ordinary donor it has never been that a simple declaration as to delivery of possession in the deed of gift would effect a transfer or possession if land was in possession of tenants and in a case like the present where the donor was in the hands of the donee any recitals at her instance would obviously be of less weight."
' This Court, further observed: "A declaration in a deed of gift as to delivery of possession has two aspects. It may be evidence of delivery of possession and it may of its own force transfer or help in transferring possession. So far as the first aspect is concerned if it be otherwise known that the donor did nothing beyond making a statement as to delivery of possession the recitals is of no value. In its' second aspect the making of the declaration is a circumstance to he taken into consideration for determining whether delivery has taken place. But in neither aspect is such a declaration conclusive."
' This Court, further observed that "taking of possession by the donee without the permission of the donor is of no effect."
' It is needless to point out that there 'are three essentials of gifts under the Muhammadan Law:-
(i) A declaration of gift by the donor,.
(ii) An express or implied acceptance of the gift by the donee and Seisin or the delivery of possession of the gifted property by the donor to the. Donee.
52. As far as the contention of Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff regarding 'registration' of the gift deed is concerned the same in view of the dictum laid down by the apex court in the case of MUHAMMAD EJAZ AND 2 OTHERS v. MST, KHALIDA AWAN AND ANOTHER [Reported in 2010 SCMR 342] besides misconceived is not acceptable. While, dilating upon inter alia the aspect of a 'registration' of Gift Deed the Hon'ble Supreme Court of Pakistan has observed as under:-- "6. Under the Mahommedan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:-
(a) a declaration of gift by the donor;
(b) acceptance of gift by the donee; and
(c) delivery of possession of corpus. On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the prerequisites are complied with.
Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908.
7. In Umar Bibi v. Bashir Ahmed (1977 SCMR 154), it was held that the formalities prescribed by Muslin Law having been completed, a valid gift could be effected even orally or under an unregistered instrument. The possession of gifted land having been delivered by the donor to the donee and the donee having accepted the same, the gift was valid and suggestion of majority award being vitiated by error of law apparent of face of record was miscounted. It was also held that the gifts made under the Muslim Law were expressly excluded from operation of the Transfer of Property Act, 1882 by virtue of section 129, which provided that nothing in the Chapter in which section 123 fell, would affect any rule of Muslim Law. In Abdullah v. Abdul Aziz (1987 SCMR 1403), it was held that gift of immovable property made under Mahommedan Law was expressly excluded from operation of section 123 of the Transfer of Property Act, 1882. What was important was the completion of the three conditions enumerated above and registration of the document would not be helpful if any of the aforementioned conditions were not satisfied. A written instrument in any case would not create a gift but was a mere evidence of the gift and as such would not in the case of a Muslim require registration.
53. In the case in hand however, it is worth to note the defendant No, 1 has failed to prove the essential requirements of a valid gift.
54. In view of the above discussion and case-law I have reached the conclusion that the alleged gift deed dated 31-3-2005 relied upon by defendant No, 1 is a forged document and thus have no binding effect. Issue No, 1 answered accordingly.
55. Issue No, 2.
56. It is also a settled law that statements/assertions made in a written statement/plaint cannot be treated as evidence save and except to the extent of admissions made therein. On this aspect of the case on the following case-laws are relevant:-
(a) Nazir Ahmed Khan and two others v. Muhammad Ashraf Khan and others (PLD 1975 K 598 Placitum 'A') wherein it was held as follows:-- 7...... As a rule pleadings are not evidence by themselves; the statements made by defendant in the written statement, could be used as evidence in cases where they amount to admission of the plaintiff's pleas. These admissions could be direct or even by implication, and in both cases are proof in themselves.
(b) Muhammad Noor Alam v. Zair Hussain and 3 others (Reported in 1988 MLD 1122 Placitum A) rule was laid down by a Division Bench of this Court:."5 A written statement contains averments of a party which are to be proved Through cogent evidence. If a party does not produce any evidence in support of the contents of its written statement, in the absence of any admission on the part of a plaintiff the averments contained in the written statement cannot be treated as evidence."
(c) Fateh Muhammad through L.Rs, and others v. Fida Hussain through L.Rs, (Reported in 2007 CLC 1885 Placita 'D' & `E'), wherein it was observed as below:- "9 Further the appellant has not entered in the witness-box to support the assertions made in the written statement in the instant case. A written statement, where the defendant does not make himself available for cross-examination, loses its force as an authentic piece of evidence, it cannot be acted upon and used as substantive piece of evidence. While holding so, 1 am fortified by the judgment in the case of Bakhat Bedar v. Naik Muhammad 2004 MLD 341. Further, in the case of Muhammad Rafiq and others v. Muhammad Ali 2004 SCMR 704, the apex court has observed that once an admission is made in the written statement, no issue is required to be struck nor any further proof is required."
57. Significantly, in the present case the defendant No, 1 has failed to come forward to support her assertions made in the written statement. Despite opportunities, neither the defendant No, 1 has come forward to lead any evidence or otherwise, bring on record the alleged 'gift deed' relied upon by her.
58. On the other hand the plaintiff besides leading evidence has also produced various documents (Exh.'P/2' to 'P/27') in support of his claim/ownership. The various documents so produced in evidence have gone unchallenged.
59. Under circumstances, I have reached the conclusion that the plaintiff of course, is entitled for the reliefs sought in the plaint but only against defendant No, 1.
60. As far as, defendant No, 2 [DHA] is concerned in view of the arguments of Mr. Aijaz Mubarak Khattak learned counsel for the defendant No, 2 [DHA], in support of the stand taken in the statement filed on behalf of DHA on 13-5-2008 and reproduced in para 26 hereinabove, plaintiff is not entitled for any relief against defendant No,
2. Issue No, 2 answered accordingly.
61. Issue No,
3. In view of the above discussion, arguments advanced by the learned counsel for the plaintiff and defendant No,2 [DHA] and case-laws cited at bar, the plaintiff's suit against defendant No, 1 is decreed as prayed however, with reduced rate of mesne profit i,e, @ Rs,30,000 [Thirty thousand only) instead of Rs,40,000 (Forty thousand only) as mentioned in sub-clause (iv) of the prayer clause. Suit against defendant No,2 is hereby dismissed, however with no order as to cost.