' ARSHAD MAHMOOD TABASSUM, J. --- One Kher Din, predecessor of the parties was the owner of 1/2 share equal to 2 marlas and 254 Sq. Feet in house No, P/63, Street No, 6, Ward No, 7, Jhang Bazar, Faisalabad. The said Kher Din, while residing in the same house died in August 1988, leaving 5 sons and one daughter to inherit the above-said house in accordance with law. Prior to the present litigation, Nazir Ahmed respondent No, 1, brought an ejectment petition dated 01.04.1991, against the present petitioner for his eviction from the above-mentioned house, alleging therein that he (Nazir Ahmed) was exclusive owner of the house since 06.04.1983, and that respondent therein was in occupation of only one room of the said house as a tenant under the ejectment petitioner. The petitioner on the perusal of the document annexed with the said ejectment petition came to know that Nazir Ahmed was claiming himself to be the exclusive owner of the entire house (1/2 share of Kher Din) on the basis of a Hibanama, allegedly executed by Kher Din in his favour and registered on 06.04.1983. On coming to know about the claim of exclusive ownership of the house by Nazir Ahmed on the basis of the said Hibanama dated 06.04.1983, the petitioner filed a suit for declaration, mandatory and permanent injunction on 06.04.1991, whereby he challenged the genuineness and validity of the so-called Hibanama on various legal and factual grounds and claimed that he was in occupation of the house in his capacity as co-owner thereof and was not a tenant under Nazir Ahmed and sought a declaration to that effect.
2. The suit firstly was filed against Nazir Ahmed, the witnesses and scribe of the document as well as officers/officials of the Registration Department. Subsequently, the names of defendants No, 2 to 9 were deleted from the array of defendants and they were replaced by present respondents No, 2 to 20, all being LRs of Kher Din i,e, the original owners of the house in question, vide amended plaint dated 15.07.1993. The respondent/defendant No, 1, Nazir Ahmed, filed his written statement on 11.11.1991, whereby he claimed that by virtue of a registered Hibanama executed by his father, he was the owner in possession of the house in question, the plaintiff/petitioner was in occupation of the house as tenant under him and the suit had been filed only to create defence to the ejectment petition already filed against him. All the other defendants No, 2 to 12 and 13 to 18, filed their respective written statements, conceded the averments of the plaint and also denied that the plaintiff was in occupation of the house as tenant of defendant No,
1. Out of the divergent pleading of the parties, following issues were framed:--- ISSUES:
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit is barred by time? OPD
(3) Whether the suit is not correctly valued for the purpose of Court-fee and jurisdiction? OPD
(4) Whether the plaintiff is estopped from filing the suit? OPD
(5) Whether the suit is mala fide? OPD
(6) Whether the alleged gift deed executed on 05.04.1983, and registered on 06.04.1983 baring registration No, 5314 is collusive, based on male fide product of fraud and forgery against law and facts, void and ineffective upon the rights of the plaintiff? OPP
(7) Whether the, plaintiff is in possession as co-sharer? OPP
(8) Relief.
3. The learned Trial Court put the parties on trial, who produced their pro and contra evidence in support of their versions. The petitioner/plaintiff himself appeared as P.W.1 and tendered in evidence certain documents. The defendant/respondent produced Salah-ud-Din, scribe of the document in dispute as D.W.1, Muhammad Sharif son of Muhammad Din and Muhammad Sharif son of Muhammad Rafiq, marginal witnesses of the deed, as D.W.2 and D.W.3, respectively and himself entered the witness-box as D.W.4. The learned Trial Court, on conclusion of trial and after hearing the arguments of the learned counsel for the parties, decreed the suit vide judgment and decree dated 02.11.2001. However, on appeal filed by the respondent/defendant, the learned first Appellate Court set aside judgment passed by the learned Trial Court by allowing the appeal and dismissed the suit vide judgment dated 21.08.2004, hence, this petition under Section 115, C.P.C.
4. Learned counsel for the petitioner has argued that the learned Trial Court had correctly evaluated the evidence produced by the parties and by properly applying the law on the subject, had decreed the suit of the petitioner/plaintiff, which has been erroneously set aside by the Darned first Appellate Court, who dismissed the suit by mis-reading and mis-construing the evidence available on record and mis-construction of the law on the subject. He has further argued that the deed in question was not proved by the respondent/defendant, which he was obliged to prove, as the petitioner/plaintiff had alleged the said document to be result of forgery and fraud; that the ingredients of a valid gift under the Islamic Law were not fulfilled, nor proved by the respondent/defendant; that the delivery of possession was not proved, nor the same had taken place in this case, hence, the respondent/defendant could not claim ownership qua the suit house on the basis of so-called gift deed; that the statements of the D.Ws., being full of discrepancies and contradictions, could not be relied upon; that the said D.Ws., being defendants in the suit, had denied their signatures on the deed in dispute and that they could not take a somersault, while entering the witness-box and depose that the deed contained their thumb impressions as marginal witnesses.
5. Nobody has turned up on behalf of the respondent/defendant, hence, they are proceeded against ex parte.
6. I have held learned counsel for the petitioner and have myself perused the record.
7. The learned Trial tout, while decreeing the suit of the petitioner/plaintiff has disbelieved the marginal witnesses and petition writer by observing as under:- ' It has also been mentioned by the plaintiff that the marginal witness of the said gift deed i,e, Ex.P.4, namely Muhammad Sharif son of Muhammad Din has admitted the assertion of the plaintiff through his written statement and has categorically admitted that he made not signature over the impugned gift deed and signature over there is result of fraud. But afterwards the said marginal witness was produced as D.W.2 by the defendant, wherein he changed his previous stance and tried to give deposition in favour of the defendant No, 1 but under the law the admission on the part of he said marginal witness regarding the assertion of the plaintiff cannot be allowed to be diverted from his admission. The other marginal witness of the said gift deed Ex.P.4 Muhammad Fazal has also filed his admission through the written statement that he did not make any signature over there and his signature on Ex.P.4 is result of fraud and the suit of the plaintiff be decreed. D.W.1 is deed writer who admitted in his cross-examination that there are cutting in the alleged gift deed i,e, Ex.P.4 and it was prepared for a sale-deed but the same was converted into gift deed by making cutting over there and no endorsement or signature was made regarding that cutting and in the absence of any signature or putting the signature on cutting the said cutting cannot be considered as correct. Whereas D.W.2 in his cross-examination deposed that there is no cutting in the alleged gift deed i,e, Ex.P.4. It has also been worth mentioning here that the original gift deed has not been produced by the defendant No, 1 in the Court and it was withheld by the defendant No, 1 in his possession which gives adverse inference against the defendant No,
1. Then order of the learned Rent Controller for the dismissal of the ejectment petition of defendant No, 1, the statement of Patwari in the ejectment proceedings as R.W.1 has been produced as Ex.P.3, wherein the said Patwari has deposed that the mutation of gift deed has not been entered in the revenue record."
8. , The learned first Appellate Court has observed in the impugned judgment that the respondent/defendant, by producing the scribe of the document, namely Salah-ud-Din as D.W.1 and marginal witnesses, namely Muhammad Sharif son of Muhammad Din D.W.2 and Muhammad Sharif son of Muhammad Rafiq D.W.3 has fully established valid execution of the gift deed in his favour. There is nothing in the statements of the said D.Ws. To discard their testimonies and in this regard, the learned first Appellate Court has given ample justification to rely upon their statements.
Similarly, the written statement, if any, submitted by D.Ws. 1 to 3, was not put to them to enable them to explain as to whether that had been submitted by them or not. Such written statement, if any, was submitted, when they were arrayed as defendants in the suit, but subsequently, their names were deleted from the array of defendants, as such their written statement did not qualify to be called as pleadings of the parties. Therefore, the said D.Ws. Being independent witnesses were liable to be relied upon, as such the execution of the gift deed Ex.P.4 stood established.
9. As regards, the findings of the learned Trial Court that the respondents/defendants did not produce the original deed Ex.P.4, before the Court, hence, adverse inference has to be drawn against them, suffice it to say that the learned first Appellate Court has rightly observed that the learned Trial Court had dismissed application, submitted by the respondent/defendant vide order dated 04.03.1996, holding that since the certified copy of the deed was available on record as Ex.P.4, hence, the application was liable to be dismissed as such non-production of gift deed was not fatal in this case.
10. Now the question arises as to whether the deed in question Ex.P.4 is a gift deed or deed of Hiba- bilIwz. In this regard, the learned first Appellate Court has observed that it is a deed of Hiba-bil-Iwz and it did not require transfer of possession for its validity. However, to my mind, the reciter of the deed itself shows that it was a gift deed. Respondent/defendant No, 1, who claims title on the basis of, the said deed also claims the same to be a gift deed. In this regard, preliminary objection (I) raised by him in his written statement reads as under:- ' There is no mention of Hiba-ul-Iwz in the deed itself, nor anywhere it is mentioned that in lieu of the said Hiba, the donor had received any consideration. The following words mentioned in the deed:- ' It clearly indicate that the value of the subject-matter of the gift, as mentioned in therein was just for purpose of valuation of stamp duty, otherwise, the donor must have mentioned therein that he had received the said amount or was to receive the same at same future date. In this regard, a portion of the statement of Salah-ud-Din D.W.1, who is scribe of the deed is quite relevant, who during cross-examination states:--- {{URDU TEXT}} ' He further states that:--- ' In order to see as to what a Hiba or gift is, we will have to consult Mohammadan Law. Under Section 138 of the Mohammedan Law by D.F. MuIla, the Hiba or gift has been defined as under:--- "138. Hiba or gift.-- A hiba or gift is "a transfer of property made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter.
' Hiba means t.Ansfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.
' Deed of gift, construction of.-- The principle applicable to the, gift deeds in general is the ascertainment of donor's intention. The help of language of grant and the surrounding circumstances must be adhered to in constructing a fit deed."
' Similarly, Section 149 of the Muhammadan Law reads as under:--- "149.-- The three essentials of a gift.-- It is essential to validity of a gift that there should be (1) a declaration of a gift by the donor, (2) and acceptance of the gift, express or implied, by or on behalf of the done, and (3) delivery of possession of the subject of the gift by the donor to the done as mentioned in Section 150. If these conditions are complied with the gift is complete."
' Looking at the deed in question in the light of the above definition of gift, it appears that it is nowhere mentioned in the said deed that the donee accepted the gift or anybody else accepted the ,same on his behalf. Similarly, the deed does not contain signatures of the donee in token of his acceptance of the gift. This aspect of the case alone leads this. Court to hold that although valid execution and transaction of the deed has been established by the respondent/defendant, but the said deed itself does not fulfill the requirements of a valid transaction of gift. It is nowhere mentioned in the deed that any oral transaction had taken place, whereby the donor had verbally gifted his property to the donee and that he had accepted the same. In this regard, it may be observed that a party relying upon a gift has to prove firstly the transaction of gift and secondly the instrument of gift, if his claim was based thereupon. Reliance in this regard may be placed on the case of Arshad Ahmad (PLD 2012 Lahore 483). Thus, in the light of above discussion, this Court is constrained to hold that the learned first Appellate Court has failed to take notice of this aspect of the case and has erroneously dismissed the suit of the petitioner/plaintiff.
11. Although the reasoning on the basis of which the learned Trial Court decreed the suit of the petitioner/plaintiff is also not justifiable on the perusal of the evidence brought on record by the parties, yet in view of the fact that the deed of gift appears to be an invalid document, which cannot create any right in the property in dispute in favour of the respondent/defendant, the suit of the petitioner/plaintiff was liable to be decreed, which has erroneously been dismissed by the learned first Appellate Court by accepting the appeal. The impugned judgment passed by the learned first Appellate Court, therefore, is not sustainable in the eye of law, rather it suffers from material illegality and irregularity, hence, the same is hereby set aside by accepting this civil revision. Resultantly, the judgment, passed by the learned Trial Court, decreeing the suit of the petitioner/plaintiff, is restored with no order as to costs.
12. Petition allowed.