' CH. MUSHTAQ AHMAD, J.---Briefly the facts are that Bostan Khan, predecessor of the parties filed a suit for declaration on 31-1-1982 challenging a registered gift deed dated 6-1-1977 in favour of his sons respondents Nos.1 to 3. The said suit was decreed on 29-6-1982. Javed Iqbal, one of the defendants appeared before the court and made statement that he had informed his brothers about institution of the suit but they were avoiding to appear before the court and that he has no objection on the suit being decreed in favour of their father. The said Bostan Khan, predecessor of the parties died and mutation of his inheritance was attested in favour of his all legal heirs on 19-6- 1996. Respondent No,1 then filed a petition under Section 12(2) of the Code of Civil Procedure, 1908 (Act. V of 1908) for setting aside decree dated 29-6-1982 on 1-9-2000 impleading his brothers and sisters as respondents and alleged that he had received no summons issued by the court before ex parte decree was passed in favour of their father whereby mutation of gift was set-aside; that respondents Nos.1 and .2 had connived with Bostan Khan, their father and had not informed him about the institution of the suit and consequently, a decree was passed in favour of their father and that their father had admitted in his life time that the property was gifted by him to his sons.
The said petition was contested by the present petitioner. In the light of pleadings of parties, following issues were framed:--
(1) Whether the application is liable to be accepted on the grounds mentioned in the application?
OPA (1A) Whether the petition is time barred? OPR
(2) Relief.
2. Both the parties produced evidence in support of their respective versions before the learned trial court. On conclusion of trial, the learned Civil Judge, dismissed the application, vide order dated 17-7-2006 on two grounds that the petitioner and his brothers were aware of the institution of suit by their father and the decree passed in his favour in 1982 but it was not challenged by them in life time of their father who had died in 1996 and a mutation of inheritance was also attested in favour of all the legal heirs and that the application was also hopelessly time barred. Feeling aggrieved, the respondent No,1 filed revision petition which was accepted by learned Additional District Judge vide judgment dated 26-4-2008 against which the present petition was filed.
3. Contention of learned counsel for the petitioner is that learned revisional court has ignored the material facts established on the record and has wrongly set-aside the decree dated 29-6-1982 on the basis of mere surmises and conjectures; that it was'proved on the record that respondent No,1 was fully aware regarding the decree dated 19-6-1982 passed in favour of father of the parties who in his life time had filed the suit whereby the alleged gift in favour of the sons was challenged and the suit was not contested by the respondents Nos.1 to 3 (the donees); that Bostan Khan predecessor of the parties did not handover possession of the property, therefore, the gift was not valid and complete and on that score, the same was rightly set-aside in the suit filed by him and that the impugned judgment passed by the learned Additional District Judge is erroneous on facts as well as law on the subject, hence, the same is liable to be set-aside. Learned counsel for the petitioner has placed reliance on "Dilawar Jan v. Gul Rehman and 5 others" (PLD 2001 SC 149), "Hassan Din v. Hafiz Abdus Salam and others" (PLD 1991 SC 65), "Abdul Fatah and 8 others v. Nisar Ahmed and 3 others" (2003 YLR 2610) and "Tassadaq Hussain and another v. Afzal Mumtaz and 2 others" (2001 MLD 740) in support of his contention.
4. Learned counsel for the respondents has supported the impugned judgment on the ground that respondent was not served in the suit filed by Bostan Khan nor he had knowledge about the decree passed in favour of predecessor of the parties and that the order passed by the revisional court could not be interfered with in constitutional jurisdiction of this Court. Learned counsel for the respondents has referred to "Muhammad Yousaf v. Manzoor Ahmad and another" (PLD 2006 Lahore 738), "Mazhar Khan v. Additional District Judge, Mailsi and others" (2007 MLD 1580), "Noor Muhammad v. Sarwar Khan and 2 others" (PLD 1985 SC 131) and "Muhammad Khan and 6 others v.
Mst. Ghulam Fatima and 12 others" (1991 SCMR 970) in support of his contention.
5. Heard. Perused.
6. Regarding question of maintainability of the petition against order passed by a revisional court I would like to dispose of the arguments advanced by teamed counsel for the parties on this point first. In the case-law cited by learned counsel for the petitioner i,e, "Dilawar Jan v. Gul Rehman and 5 others" (PLD 2001 SC 149), this question came to be considered and it was laid down by the apex court that where order passed by courts below suffers from any jurisdictional defect or violates any provision of law, and if the error is so glaring and patent that the same may not be acceptable, invocation of constitutional jurisdiction is justified. It was further laid down that when finding is based on insufficient evidence, misreading of evidence, erroneous assumption of facts, non- consideration of material evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where no reasonable view on evidence has been taken, High Court can interfere in constitutional jurisdiction. In another case relied upon by learned counsel for the petitioner, i,e, "Hassan Din v. Hafiz Abdus Salam and others" (PLD 1991 SC 65), it was observed that where the District Judge .Exercises jurisdiction which he did not possess in the matter of reopening the auction sale by setting aside ex parte decree and thereby jeopardizes the right of respondents in the valuable immovable property, constitutional petition was rightly entertained by the High Court in circumstances. In the case-law cited by learned counsel for the respondents i,e, "Muhammad Yousaf v. Manzoor Ahmad and another" (PLD 2006 Lahore 738), "Mazhar Khan v. Additional District Judge, Mailsi and others" (2007 MLD 1580), "Noor Muhammad v. Sarwar Khan and 2 others" (PLD 1985 SC 131), the question of maintainability of constitutional petition against revisional order, came to be considered. In the cited case i,e, "Noor Muhammad v. Sarwar Khan and 2 others" (PLD 1985 SC 131), it was observed that neither impugned order passed by executing court nor that passed by Additional District Judge in his revisional jurisdiction, could, by any stretch of imagination, be said to be illegal or to have been passed without lawful authority. Constitutional petition against such order was not competent. In the other cases cited by learned counsel for the respondents, it was also held that a revisional order arising out of civil litigation, could not be challenged in constitutional petition.
7. By now it is well settled that when a finding is based on insufficient evidence, misreading of evidence, erroneous assumption of facts, non consideration of material evidence, High Court can interfere in constitutional jurisdiction, reference in this regard may be made to "Dilawar Jan v. Gul Rehman and 5 others" (PLD 2001 SC 149). Coming to the merits of the case it is to be seen as to whether the gift allegedly made by Bostan Khan in favour of his son was valid and complete. The necessary ingredients of a valid gift are:-
(i) Offer by the doner to transfer the property as gift.
(ii) Acceptance by the donee.
(iii) Delivery of possession of the property gifted.
' In the case in hand, it is to be seen whether the first court had correctly read the evidence produced by the parties and that the learned revisional court was justified in interfering with the findings of facts recorded. In the case in hand, it is admitted fact that Bostan Khan, predecessor of the parties, was owner of the suit property. It is also admitted fact that he, in his life time, filed suit which was decreed in his favour on 29-6-1982. During his life time, said Bostan Khan remained in physical possession of the suit property and after his death, mutation of inheritance was attested in favour of his all legal heirs. Hence, the delivery of possession in this case by Bostan Khan to his sons was not established due to which it was not a case of valid gift by doner in favour of donees. It is admitted even by respondent No,1 that respondent No,2 appeared before the court and stated that he had told his brothers about the institution of the suit by their father and defendant No,1 had also appeared before the court to prosecute the matter. Javed Iqbal respondent No,2 in the petition filed under Section 12(2) of The Code of Civil Procedure, 1908 (Act V of 1908) also made statement before the Court that he had told his brothers and that he has no objection on the suit being decreed in favour of their father. It is admitted fact that the above decree was passed on 29- 6-1982 which was challenged by respondent No,1 in the year 2000. The record in this case further shows that father of the parties died in the year 1996 and mutation of inheritance was attested in favour of the parties on 29-6- 1996. The above mutation was also challenged by the respondents jointly but their appeal was dismissed. The record in this case shows that Javed Iqbal respondent appeared before the trial court as RW-2 and stated that he went with his father to pursue the suit filed by him and his father had stated that he would withdraw the suit which he filed against his sons due to his strained relations with them and that he did not know whether his father had withdrawn the suit or not and that he now has come to know that the suit had been decreed in favour of their father. He further stated that he along with his brothers had been residing at the house of their father since 1977. Respondent No,1 who appeared before the trial court as RW-1 also admitted that Javed Iqbal was residing with his father in the same house. It is admitted fact in this case that during life time of predecessor of the parties, the decree passed in his favour was not challenged by any legal heir. The learned trial court after considering the evidence available on record concluded that it was proved on the record that respondent No,2 Javed Iqbal appeared in the suit and got recorded his statement with his free will and consent and he was estopped by his words and conduct to depose against the correctness of his statement. It is important to note that only respondent No,1 moved application under Section 12(2) of The Code of Civil Procedure, 1908 (Act V of 1908) in the year 2000 against the decree which was passed on 29-6-1982.
8. For the above reasons, the trial court rejected the application moved under Section 12(2) of The Code of Civil Procedure, 1908 (Act V of 1908) being against facts established on record and being hopelessly time barred. While reversing the findings recorded by the first court, the learned Additional District Judge mainly based his decision on the fact that petitioner (respondent No,1) was not properly served in the suit filed by his father through his elder brother and thus provisions of Order V, Rule 15 read with Rule 17 of The Code of Civil Procedure, 1908 (Act V of 1908) were violated. However, view taken by learned trial court was that it was obligatory on the petitioner to prove as to why respondent No,1 (his brother) would not have informed him about the institution of the suit. Finding of learned Additional District Judge that if the suit of the predecessor in interest was to be decreed at all, it could only have been decreed against Javed Iqbal who had made conceding statement and not against rest of Lae defendants, is erroneous for the reason that it has not been denied by all the legal heirs of Bostan Khan except respondent No,1 that he had challenged the gift himself and the decree was passed in his favour which was not challenged in his life time.
9. It is clear from above discussion that the findings recorded by the learned revisional court is the result of misreading of evidence, based on erroneous assumption of facts and law.
10. Resultantly, the petition in hand is hereby accepted and the impugned judgment dated 26-4- 2008 is set aside as a result of which view of learned trial court is restored. Parties are left to bear their own costs as incurred by them.