1. SPED AFSAR SHAH, J. - This civil revision is directed against the judgment dated 16.2.2013 recorded by learned Addl. District Judge-III, Swabi whereby the appeal filed against the judgment/decree dated 9.10.2012 passed by learned Civil Judge-I, Swabi was dismissed.
2. 2- The facts leading to the filing of the instant petition are that on 7.9.2010, Fazal Rahim and three others (respondents/plaintiffs) filed a suit against the Secretary Education Department and others for declaration to the effect that they are owners of the suit premises measuring 05-marlas bearing Khasra Nos.1715 and 1716 situated in the local limits of Mouza Maneri Payan, Swabi and as such the petitioners/defendants have got no right whatsoever to set up their claim in respect of the same. They have also made a prayer for possession through demolition of the disputed premises and grant of permanent injunction. As per averments in the plaint the suit premises is the ownership of the respondents/plaintiffs and as such it is in possession of the petitioners/defendants as tenants, that initially the suit land was given to the petitioners temporarily and now it is required to them for their personal use.
3. When put on notice by the learned lower court, the petitioners/defendants contested the suit, inter alia, on the ground that the suit land was given to the Education Department/defendants on the basis of oral gift somewhere in 1980, whereafter, school was constructed over there and hence in the circumstances, the respondents/plaintiffs have got no locus standi to claim their ownership in respect of the suit land.
4. The learned lower court after recording evidence of the parties for and against allowed the suit of the respondents/plaintiffs vide its judgment/decree dated 9.10.2012 and aggrieved of the same, the petitioners filed appeal in the court of Additional District Judge-III, Swabi but with no premium to them as their appeal was dismissed by the learned appellate forum vide its judgment dated 16.2.2013 and now, they have come to this court by filing the instant revision petition.
5. Arguments heard and record perused.
6. 3- It appears from the record available on file that in this case the dispute between the parties relates to the ownership of a piece of land measuring 06-marls situated in the local limits of Mouza Maneri Payan, Swabi. According to the plaintiffs/respondents, they are owners of the land in dispute and that it was given to the Education Department temporarily and since now it is required for their personal use, therefore, the petitioners/defendants have got no right whatsoever to set up their own title in respect of the premises in dispute. As against that the petitioners/defendants have set up their own claim in respect of the land in dispute mainly on the ground that it was given to them on the basis of oral gift, whereafter, a school was constructed over the same and uptil now it is functional as children of the area are getting their primary education.
7. So far as the ownership of the suit premises is concerned, admittedly and as is evident from the revenue record it is owned by the respondents/plaintiffs whereas the petitioners/defendants stand nowhere in so far as the entries in the revenue record are concerned. Statement of patwari of the circle, who has been examined in the case as (PW-1) and copies of Fard Jamabandis placed on record further speak about the same fact. Appearing as (PW-2), Fazal Rahim, respondent/plaintiff has stated in support of his case. According to him, they are owners of the land in dispute and that it is in permissive possession of the petitioners/defendants as tenants, that initially the suit premises was left for the extension of the mosque as it is contiguous to the village mosque, however, it was temporarily given to the petitioners/defendants for the school. He further stated that since now it is required for their personal use, therefore, they are entitled for its possession by demolition of the construction which according to them as being 'Kacha' is about to fall. He has denied the factum of oral gift in favour of the defendants/department.
8. In the given circumstances of the case, the court will have to see the element of oral gift in favour of the Education Department as alleged by them. There is no two opinion about the fact that writing is not essential to the validity of a gift either of moveable or immoveable property. The essential requirement to the validity of a gift is that the donor should divest himself completely and all ownership and dominion over the subject of gift. Simple is that relinquishment of control over the subject is necessary to complete the gift as it (gift) cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given. The gift is null and void when the donor continues to exercise any act of ownership over it.
9. In the present case, as per version of the department, the suit property was given to them by the plaintiffs on the basis of oral gift in the year, 1980 and thereafter they constructed a primary school over the same. In support of their claim, they have made reference to the 'naqsha mauqa' prepared by patwari of the circle, copy of which as Ex.PW-1/1 is available on file. It appears from the above 'naqsha mauqa' that there are two rooms in the school. On the other hand, in the column of remarks of the Fard Jamabandi, copy Ex.PW-1/4 pertaining to the year, 2007-2008 there is a reference of mutation No. 6103 on behalf of the plaintiffs in favour of the Education Department for the purpose of Government Primary School, Pirtab Banda. The said mutation was entered but has not been attested so far meaning thereby that the plaintiffs/respondents were not ready to attest the mutation and from the same one could easily infer that there was no gift at all. Again the non- attestation of mutation clearly shows that the plaintiffs/respondents have not relinquished their control over the suit property or for that matter subject of the gift.
10. 4- The petitioners/department in support of their claim has got examined one witness, who is their representative. He has stated about the factum of oral gift and construction of Government Primary School, Pirtab Banda Maneri (Swabi) over the suit land in the year, 1981. He has also produced the record with respect to the students presently getting their primary education in the school. He has, however, not produced any record regarding the construction over the suit premises by the government. On the other hand, it is the claim of the department that they have constructed a school over the suit land, anyway, the record is silent in this respect. Regarding their objection on the question of limitation, suffice it to say that as per version of the plaintiffs/respondents, they have given the land in dispute to the department temporarily which is un-rebutted, therefore, question of limitation will find no place in a suit on account of permissive possession. The respondents/plaintiffs have succeeded in proving their ownership in respect of the suit land and as against that the petitioners/defendants have not been able to prove the factum of oral gift in their favour and which position stands rightly appreciated by the courts below but there is another aspect of the case as well. On one hand there are valuable rights of the plaintiffs and on the other hand, as is evident from the record small children of the area are getting their primary education in the school. In case of dispossession after all where they will go? Again the provision of educational facilities to the public is the primary responsibility of the State but it should not be at the cost of individual. Being owner of the land where the school has been constructed the respondents/plaintiffs are entitled for its compensation for which there is no prayer but court has got the power to grant an effective or ancillary relief, even if, not prayed for and in this respect I am fortified by a case law titled "Ahmad Nawaz Vs. Muhammad Jaffar Khan, etc" (2010 SCM R-984).
11. Similarly, the courts are not precluded from moulding relief in view of the changed facts and circumstances of the case to shorten litigation between the parties. In this respect wisdom is derived from a case law " Amina Begum Vs. Ghulam Dastagir (PLD 1978 SC-220) and Municipal Committee Chakwal Vs. Chaudhry Fateh Khan, etc (2006 SCM R-688).
12. In view of the above discussion, relying on the case laws referred to ibid and again in the interest of safer administration of justice, this court while moulding the relief direct the education department to go for amicable settlement with the plaintiffs through elders of the Illaqa, give them compensation in accordance with the market value of the property or straightaway go for acquisition of the land in dispute.
13. 5- With the above modification in the relief, the petition stands dismissed, leaving the parties to bear their own costs.