ABDUL LATIF KAHN, J:- Through the instant revision petition, the petitioners have challenged the judgment and decree dated 28.05.2012 passed by learned Additional District Judge-IV, Mardan, whereby appeal filed by the petitioners against the order dated 22.06.2011 of the learned Civil Judge-VII, Mardan/Executing Court, has been dismissed.
2. A perusal of record reveals that the house in dispute partially owned by Syed Mohibullah Shah, the predecessor in interest of the parties, who allegedly gifted the same on 12.09.1985 by dent of gift deed in favour of his son Faridullah and daughter Mst. Rifat Naz, petitioners excluded his other legal heirs, respondents.
Respondents No.2 to 5 real sisters of the petitioners filed cognovits whereas respondent No. 1 step brother of the petitioners and respondents No.2 to 5 contested the suit by filing writ statement. The petitioners have also sought the cancellation of inheritance mutation No.1023 entered by respondent No.1 in favour of all the legal heirs of Syed Mohibullah Shah, however the same was got attested during the pendency of the instant suit. The evidence produced by the parties would reveal that petitioners have produced marginal witness of the deed, EXPW2/1, perusal of which would show that it was Iqrarnama, Tamleek Makan, duly witnessed by two witnesses namely Jehanzeb and Noor Ali, brothers inter-see and close friends of the petitioner No.1. There is a note on the margin of the deed which shows that the donee has to pay the outstanding amount to the House Building Finance Corporation as the house was under the charge/loan obtained by the predecessor of parties. The payment of loan has been alleged by the petitioners to have made filed EXPW8/2 on 27.02.1999 but neither the documents speak about the payment by the petitioners, nor the concern officials from the Bank have been produced to prove that in fact the payment was made by the petitioners only and not by all the legal heirs of Syed Mohibullah Shah, even then document reveals the name of Syed Mohibullah Shah and prima facie there exist no evidence to the effect that the adjustment of loan was made by the petitioners. So far as the documents of G.P.Fund advance relied upon by the petitioners for the purposes of construction of house are concerned these are not relevant as pertains to the year 2009 and 2011, whereas the adjustment of loan was made in the year 1999 and suit was filed in the year 2009. It is pertinent to mention here that the predecessor of the parties died on 19.09.1990 as per statement of the plaintiff/petitioner who deposed as PW-8 however since the execution of alleged documents in the year 1985 till his death the donor or for that matter donees/petitioners have made no serious effort to act upon and enter the gift deed into the record pertaining to the ownership of the house. It is in the evidence, that the respondent No.1 was abroad since 1977 and was unaware regarding the deed and his return entered inheritance mutation in favour of all the legal heirs of Syed Mohibullah Shah, with Patwari Halqa bearing No.1023 which was questioned by the petitioners through the instant suit.
3. Apart from this the petitioner has produced the document, pertaining to the entry in their names in the PTI register in order to prove their exclusive title over the suit house, in respect of the year 1985 to 1992 maintained by Excise and Taxation Department which are not title documents and petitioners could not claim to be the owners of the property on the basis of these documents, as they neither create any right, nor strengthen the stance of the petitioners regarding their exclusive ownership in possession over the suit property.
4. Quite apart from this offer, acceptance and delivery of possession, ingredients of valid gift have not been proved by the petitioners. It is deposed by the petitioner No.1 that prior to execution of document, ExPW8/2, gift was made by his father in his favour and later on gift deed was reduced into writing on 12.09.1985. No evidence to the effect that gift made prior to execution of document, has been produced. Similarly, acceptance has not been proved, as none of the petitioner was present at the time of execution of deed. PW-8, petitioner No.1 has deposed that he was not present at the time of scribing of deed (EXPW8/2). He has also admitted in his cross-examination that the deed EXPW8/2 does not contain his signature. He has admitted to this effect that there is nowhere mention in the deed that the loan amount was adjusted by the petitioners. It is in the statement of marginal witness Noor Ali that Syed Mohibullah Shah remained indisposed for a considerable long period and he also admitted that the call was made by the petitioner through telephone and not by Late Syed Mohibullah Shah. He further deposed that at the time of scribing of document Mst.
Rifat Naz and petitioners No.2 to 4 were not present. He also admitted that no document relating to title of Syed Mohibullah Shah was produced to the Petition Writer at the time of the scribed deed.
He deposed that the other marginal witness is his brother and both are the close friend of Faridullah (petitioner). He also admitted that Inamullah Shah (respondent No.1) is the step brother of the petitioner and respondents No.2 to 5, who is abroad. He admitted that at the time of scribing of the deed Inamullah Shah was not present and came back from America in the year 2006 who got entered inheritance mutation against which the petitioners filed the instant suit. The statement of PW-7 and other marginal witness is almost verbatim copy of the statement of PW-6, his brother.
Statement of Stamp vendor (PW-5), Mardan reveals that the stamp paper was purchased for scribing of agreement and not for execution of gift deed. He deposed that whenever stamp paper is purchased by any person for scribing gift deed, he used to mention it in the register whereas in the instant case it has not been mentioned as such, rather it is fined mention that the same was purchased for scribing agreement. He also deposed that the signatures of Syed Mohibullah Shah on EXPW4/1 & EXPW5/1 are all together different. He admitted in cross-examination that gift in favour of Faridullah Shah and Mst. Rifat Naz, was not made in his presence. PW-4 Moharrir (Mohafiz Khana) produced the register petition writer which was lying in Mohafiz Khana, has been produced as EXPW4/D1 and EXPW4/D2, reveals that there are blank spaces left by the Petition Writer, which shows that he used to make entries in those spaces as and when required in back dates as per the choice and need of the interested persons which caused serious doubts regarding execution of deed by the petition writer. So far as the delivery of possession of disputed property is concern, being factual ingredients of valid gift has to be proved through cogent and inspiring evidence, which is lacking in the instant case.
5. Learned counsel for the petitioners vehemently stressed that gift by muslim could be made orally and there is no need of any writing. No doubt a gift by a muslim would be complete even if there is no writing, however it is always subject to fulfillment of three ingredients i.e. declaration of gift by the doner, acceptance of gift expressly or impliedly by or on behalf of the donee and delivery of possession to the donee by the donor once a document has been scribed, it would be the the duty of the beneficiary of the document to prove the same by producing the evidence in terms of Art. 79 of Qanun-e-Shahadat(10 of 1984).
6. Admittedly, there is no evidence with clarity regarding delivery of possession by the donor to the donees in the instant case. Learned counsel for the petitioners focus his submission with great vehemence regarding delivery of possession to the effect that as the father and son (petitioner) were residing in the same house, therefore, there is no need to deliver of actual possession, which is misplace, for the reasons that the house in question remained in possession of the tenant and this fact has been admitted by the petitioner in his statement, rather it is deposed that even today it is in the possession of the tenant. Similarly joint possession of the donor and donees has not been established through cogent evidence. The learned counsel referred to certain provisions of Muhammadan Law and cited the example of a lady and her son, however was unable to cite any instance where the father has been excluded from transfer of actual physical possession in case of joint residence, in terms of the provisions of Muhammadan Law. If possession of the petitioner and donees are taken into consideration on the ground that the donees are the son and daughters of the doner, then respondent was also the son of doner and being co-owner in the property would also be presumed to be in possession of the property, as joint owner. So in such eventuality delivery of possession has not been proved by the petitioners and as such, petitioners failed to discharge the burden of proof with with regard to gift as genuine and not suffering from any legal and factual defect. Even otherwise a person cannot be deprived of his inheritance to be devolved upon him in legacy of predecessor under the dictates of Quranic versions, Sunnah, and relevant legal provisions merely on the basis of un-registered document, which creates no title in favour of the beneficiary. Cognovits filed by the respondents No.2 to 5 can at the most to be considered to the extent of their shares, however the same cannot affect the right of the respondent No.1 who happened to be the step brother of the petitioner and respondents No.2 to 5.
7. The Courts below have decided the lis pending before them with conscious and application of independent mind and have arrived at correct conclusion which is unexceptionable.
For the foregoing reasons, the instant petition being devoid of any merits, is dismissed.