Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 06.04.2006 and 21.01.2004, passed by the learned courts below, whereby the suit for declaration and permanent injunction filed by the petitioners was dismissed.
2. The petitioners/plaintiffs filed a suit for declaration, permanent injunction and partition against the respondents/defendants, contending therein, that the petitioners being the legal heirs of Haji Phool Muhammad, deceased, are owners of the property to the extent of their shares left by Haji Phool Muhammad and the gift deed dated 15.10.1987 claimed to have been made in favour of respondent No.1 is illegal, unlawful and ineffective qua the rights of the petitioners.
3. The suit was contested by the respondents through a detailed written statement, wherein the respondents controverted the contents of the plaint and the claim made by the petitioners.
4. The learned trial court framed necessary issues out of the controversial pleadings of the parties and after recording evidence adduced by the parties, finally dismissed the suit. Being aggrieved thereof, the petitioners filed an appeal, which too was dismissed.
5. In the written arguments, the petitioners have assailed the findings of the learned courts below mainly on the ground, that the same are against the facts and record and that the gift deed is result of fraud and misrepresentation.
6. In response of this, learned counsel for the respondents vehemently argued the case and submitted, that the concurrent findings of the learned courts below cannot be disturbed; that the scribe of the document was produced as P.W.5, who admitted, that the document was written by him and he entered the same in the relevant record; that the stamp vendor and two witnesses of the gift deed (Exh.P.5) were produced; that Haji Phool Muhammad donor died on 19.01.1990 and during his lifetime, Phool Muhammad did not challenge the gift, therefore, his legal heirs are not permitted to challenge the same; that the possession of the property is with the respondents and all the taxes are being paid by them and lastly Farzand Ali v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187) case is not applicable.
7. Heard. Record perused.
8. In this case, as evident from the record, the most important document is "Iqrar Nama Hiba"
(Ex.P.5) which requires consideration and adjudication by this Court. The contents of afore-referred "Iqrar Nama Hiba" were perused, which reveal, that Muhammad Shabbir, the predecessor of the respondents, was real son of Haji Phool Muhammad, the predecessor in interest of the parties to the case; Haji Phool Muhammad allegedly prepared an Iqrar Nama Hiba to acknowledge the oral gift which was made by him, as claimed by the respondents in the year 1980 and the possession of suit land was given on 23.01.1982. At the time of making the alleged gift, it is not mentioned in the Iqrar Nama, that in whose presence, the gift was made. When it was confronted to the learned counsel for the respondents, that the time, date and place making the gift and name of the witnesses are not mentioned, the learned counsel for the respondents although tried to defend the case but miserably failed. There is another important incident which is mentioned in this document and sufficient to declare it illegal and unlawful, that the alleged gift was orally made in the year 1980 by Haji Phool Muhammad (deceased) in favour of his son Muhammad Shabbir whereas possession was given on 23..01.1982, which is on the face of it, violative of the settled principles of Muhammadan Law. The ingredients of gift, oral or written, as given in the law are, offer, acceptance and delivery of possession. According to well-settled proposition of law, that the possession of the gifted property by the donor is to be handed over at the same time and moment when the offer was made and it was accepted by the donee, therefore, this fact is sufficient to belie and declare the document not only illegal but also product of fraud to deprive other legal heirs from their right of inheritence.
9. There is also another important aspect of the case, that this Iqrar Nama has only been signed by Haji Phool Muhammad, the alleged donor and did not sign by the donee, which is violative of the principal laid by the Hon'ble Supreme Court of Pakistan in a latest landmark judgment cited as Farzand Ali v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187). The relevant portion is reproduced hereunder: "9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants' agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agent's execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. By signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of ascent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract.
But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants, therefore, in law and fact is no contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis-a-vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement."
10. Learned counsel for the petitioners also contended, that the principle laid down by the Hon'ble Supreme Court of Pakistan in the esteemed judgments supra is not applicable on the proposition because the law declared by the Hon'ble Supreme Court of Pakistan, by interpreting any provision of law would have prospective effect and not retrospective. Further contended that the afore- referred judgment was delivered in the year 2015, but this case was decided by the learned trial court in the year 2006, therefore, the petitioners cannot be non-suited following the principle laid down by the Hon'ble Supreme Court of Pakistan.
The Hon'ble Supreme Court of Pakistan has already dealt with this proposition of law in a judgment cited as "Muhammad Yousaf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and Haji Ahmad Din" (PLD 1968 SC 101). The relevant part of this judgment is reproduced hereunder:- "This judgment was delivered on the 2nd November 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and Quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act."
In two other judgments delivered by the Hon'ble Supreme Court of Pakistan, titled "Sakhi Muhammad and another v. Capital Development authority, Islamabad" (PLD 1991 SC 777) and "Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others" (PLD 1987 SC 145), the afore-referred principle has been followed.
11. Thus in view of the judgments of the Hon'ble Supreme Court of Pakistan i.e. "Farzand Ali v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187) and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334) and the principle laid down therein, are fully applicable in the present case and the arguments advanced by the learned counsel for the petitioners have no substance.
12. If, for the sake of arguments, it is admitted, that the afore-mentioned Iqrar Nama Hiba was executed by Haji Phool Muhammad in favour of predecessor of the respondents, even then it is on the face of it, illegal, unlawful, against the law and ineffective qua the guaranteed and secured rights of the petitioners.
13. The learned courts below, as appears from the concurrent findings, have not even bothered to see or examine the Iqrar Nama Hiba (Exh.P.5) at the time of recording the findings, therefore, these type of the concurrent findings, as observed by the Hon'ble Supreme Court of Pakistan, should not be remained in the field. Even otherwise, the findings of the learned courts below are totally silent on these points, thus it is a fit case of misreading and non-reading of evidence.
14. As regard the time, date and place, I am fortified by the judgments of this Court cited as Ghulam Zainab and another v. Said Rasool (2004 CLC 33), Ghulam Muhammad and another v. Muhammad Ramzan through L.Rs (2007 M LD 1769), Agricultural Development Bank of Pakistan through Attorney v. Khalid Aziz Malik and 6 other (2010 CLD 1 [Lahore]) and Muhammad Asghar and others v. Hakam Bibi through L.Rs and other (2015 CLC 719). In the judgment supra (2007 M LD 1769) it has been observed, that in the case of oral gift, the donee had to prove the time, date and place as to where the offer of gift was made to the donee which was accepted by the donee and how the delivery of possession was made to the donee.
15. From the contents of Iqrar Nama Hiba, it appears and there is no hesitation to hold, that the same had been prepared and fabricated simply to deprive the other legal heirs from their right of inheritance which is not only guaranteed by the man-made law but also by Allah Almighty in the Holy Book. It is common practice, as observed by the Hon'ble Supreme Court of Pakistan in landmark judgment cited as Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), that by preparing this type of the documents, the legal heirs, including the women, are being deprived from their inheritance.
16. Although both the learned courts below have recorded the concurrent findings on facts but in view of the observation made above, those are entirely contrary to the record and also the law declared by the Hon'ble Supreme Court of Pakistan, therefore, these type of the concurrent findings are open to revision by this Court under Section 115 C.P.C.. I am fortified by the law laid down by the Hon'ble Supreme Court of Pakistan in judgment cited as Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568). The relevant portion is reproduced as under: "11. It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v.
Bagawati (A.I.R. 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (A.I.R. 1929 Rangoon 145)."
In another esteemed judgment cited as Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCM R 914) the Hon'ble Supreme Court of Pakistan has observed as under: "8. The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court."
17. Resultantly, this civil revision is allowed, the judgment and decree passed by the learned courts below is set aside and the suit filed by the petitioners is decreed with cost.