'This civil revision under Section 115 of Civil Procedure Code, 1908 is directed against judgment and decree dated 30.10.2010 passed by learned Civil Judge Gujranwala whereby the respondents' suit for declaration etc. Was decreed in their favour against the petitioners. It also assails the judgment and decree dated 14.10.2014 passed by learned Additional District Judge Gujranwala whereby petitioners' appeal against the judgment and decree of the learned Civil Judge has been dismissed.
2. The facts briefly stated are that Mst. Hakim Bibi (deceased)/ Respondent No, 1 mother of Muhammad Yousaf/Respondent No, 1-A and Muhammad Rafique/ Respondents No, 2-B lodged a suit for declaration etc. Against the petitioners on 21.2.2006 alleging that she is owner-in- possession of the land measuring 29 Kanals 3 Marlas as co-sharer comprising 583/11780 share in Khewat No, 12 situated in village Saich Kalar Tehsil Kamoki District Gujranwala and that impugned oral gift Mutation No, 86 dated 7.4.1990 pertaining to an area measuring 26 Kanals 11 Marlas allegedly executed by her in favour of her nephew Saleem Ullah/father of the petitioners is based on fraud, forgery, against law and facts, void and ineffective as against her rights. It was further alleged in the plaint that she is an illiterate old age rural female and never gifted out the suit land in favour of Saleem Ullah and that she never appeared before the Patwari Halqa or the Revenue Officer to make any statement or to mark any thumb-impressions with regard to alleged gift. Suit was resisted by th petitioners by filing contesting written statement raising prelimin objections with regard to bar of limitation and contending that Mst. Hakim Bibi donor gifted out her property in favour of Muhamma Saleem in presence of witnesses and also delivered the possession thereof at the same time to the donee; that after completion of the oral gift Mst. Hakim Bibi while appearing before the Revenue Officers got recorded Mutation No, 86 dated 7.4.1990 and that Muhammad Saleem was in possession of the suit property since the gift of land in his favour and after his death petitioners being his legal heirs are continuous possession. Learned trial Court framed the following issues arising out of divergent pleadings of the parties:-- "ISSUES:
(1) Whether the suit of the plaintiff is within time? OPP
(2) Whether the plaintiff is entitled to decree for declaration to the effect that the plaintiff is the owner in possession of land described in Paragraph No, 1 of the plaint and mutation of gift No, 86 dated 7.4.1990 in favour or predecessor-in-interest of the defendants namely Saleem Ullah is against law and facts, fraudulent, inoperative upon the rights of the plaintiff along with th permanent injunction that the defendants be restrained from alienating the disputed property?
OPP
(3) Whether the plaintiff has not filed this suit and she has not affixed her thumb impression over the plaint ana her son Muhammad Yousaf has filed the suit without the consent of the plaintiff?
OPD
(4) Whether the plaintiff has got no cause of action to fill the suit? OPD
(5) Whether the plaintiff is estopped by her words any conduct to file the suit? OPD
(6) Whether the defendants are entitled for special costs u/S. 35-A of CPC.
(7) Relief.
3. Mst. Hakim Bibi died during the pendency of the such whereupon Muhammad Yousaf/Respondent No, 1-A and Muhammad Rafique/Respondent No, 2-B were impleaded as her legal representatives. The said Muhammad Yousaf appeared in the witness box as PW-1 and also produced copy of Jamanbandi for the year 198182 (Ex.P-1). On the other hand petitioners examined Muhammad Arshad former Patwari Halqa (DW-1), Muhammad Arshad son of Noor Muhammad (DW-2) and Muhammad Asghar one of the petitioners deposed as DW-3. Petitioners also produced copy of Rapt Roznamcha Waqiati dated 13.2.1999 (Ex.D-1), copy of Mutation No, 86 dated 7.4.1990 (Ex.D-2), copy of record of rights (Ex.D-3), copy of FIR No, 6/2006 (Ex.D-4). After recording the evidence and providing opportunity of hearing to the parties learned trial Court decreed the respondents' suit against the petitioner's vide judgment and decree dated 30.10.2010. Being aggrieved petitioners filed appeal before the learned lower appellate Court which was dismissed vides judgment and decree dated 13.1.2012. The said judgment and decree of the learned lower appellate Court was assailed by the petitioners before this Court through Civil Revision No, 193/2012 which was allowed on the ground that point of limitation was not considered by the learned lower appellate Court. Consequently the judgment and decree dated 13.1.2012 passed by learned lower appellate Court was set aside and the matter was remanded vide judgment and decree dated 30.4.2014 with a direction that civil appeal before the learned lower appellate Court would be deemed pending and the same shall be decided after hearing the parties by rendering a well- reasoned and speaking judgment. In the post remand phase the learned lower appellate Court after providing opportunity of hearing to the learned counsel for the parties again dismissed the appeal through impugned judgment and decree dated 14.10.2014, hence this civil revision.
4. It is argued by learned counsel for the petitioners that Mst. Hakim Bibi donor while appearing before Patwari Halqa made an unequivocal statement that she had gifted out the land in favour of the donee whereupon Rapt Roznamcha Waqiati (Ex.D-1) was prepared and mutation (Ex.D-2) was sanctioned which manifest that the gift was complete in all respect. Takes reliance upon the case of Muhammad Zaman Khan, v. The Additional Chief Land Commissioner and another (1986 SCM R 1121); that the statements of Muhammad Arshad Patwari Halqa (DW-1) and Muhammad Arshad son of Noor Muhammad (DW-2) have been illegally ignored by the learned Courts below and thus failed to exercise the jurisdiction in accordance with law; that the factum of oral gift reported by the donor to the Patwari Halqa and the Revenue Officer was recorded through Mutation No, 86 dated 7.4.1990 whereas the case was file. On 21.2.2006 i,e, after about 16 years which is hopelessly barred by limitation. Takes reliance upon the cases of (i) Haji Ilahi Bakhsh v. Noor Muhammad and others (PL 1985 SC 41), (ii) Lal Khan through legal heirs v. Muhammad Yousc through legal heirs (PLD 2011 SC 657); (iii) Jamila Khatoon an others v. ' Aish Muhammad and others (2011 SCM R 222) and
(vi) Ms Grana through legal heirs and others vs. Sahib Kamala Bibi and other (PLD SC 167). It is further argued that petitioners have also filed application under Order XLI Rule 27, CPC for additional evident which has been declined by the learned lower appellate Court again law and facts; that the impugned judgments and decrees passed learned Courts below suffer from legal infirmity, misreading and no reading of evidence and the same are liable to set aside.
5. Arguments heard. Record perused.
6. In the contents of the written statement petitioners have categorically contended that impugned oral gift had been full completed before reporting the factum of gift to the Patwari Helqa for recording of the mutation. Muhammad Asghar one of the petitioners while appearing in the witness box as DW-3 has reiterated this contention in his testimony. In this regard it is important to note that no time, date or place with regard to the offer of gift, its acceptance of delivery of possession is mentioned in the written statement or in the testimony of the said witness. Even in Rapt Roznamcha Waqiati (Ex.D 1) there is no mention about any date of offer of gift, its acceptance of delivery of possession by the donor to the donee. It is an establishment principle that petitioners being b eneficiaries of the alleged gift any bound to establish the vital ingredients of a valid gift in terms of Para 149 of the Principles of Muhammadon Law as compiled by D.F.Mullalah which ordains that it is essential to the validity of a gift that their should be a declaration of gift by the donor, an acceptance of the gift express or implied, by or on behalf of the donee, and delivery C. Possession of the subject of the gift by the donor to the donee. In the written statement petitioners have also failed to mention the name of any person/witness before whom the donor had orally gifted out the property in favour of the donee before reporting the factum of oral gift to the Patwari Halqa.
Muhammad Arshad EX-Patwari Halqa (DW-2) and Muhammad Arshad son of Noor Muhammad (DW-2) alleged witness of Roznamcha Waqiati (Ex.D-1) did not utter even a single word with regard to already completion of factum of gift before reporting the said event to the Patwari Halqa, therefore it can safe be concluded that petitioners have miserably failed to adduce ai reliable ocular or documentary evidence to establish a valid oral gift the donor in favour of the donee before reporting the alleged fact gift to the Patwari Halqa.
7. Besides it is pertinent to mention that in the above state of affairs Rapt Roznamcha Waqiati allegedly recorded by DW-1 and categorically denied by Mst. Hakim Bibi donor in the contents of the plaint cannot be termed as sufficient evidence to establish the impugned factum of a valid gift.
It is on the record that Part Sarkar of impugned Mutation No, 86 dated 7.4.1990 is not available in the revenue record. It is reported that the same has been misplaced or lost. Petitioners have produced only a photo-stat copy of Part Patwar (Ex.D-2) which does not contain the thumb- impressions of the donor or Pattidar or Lumberdar concerned. Even the Revenue Officer who allegedly attested the impugned mutation is not examined. It is reported that he has died. The only( document produced by the petitioners on the record i,e, Rapt Roznamcha Waqiati dated 13.2.1999 (Ex,D-1) allegedly contain the thtimb-impressions of Mst. Hakim Bibi donor, Muhammad Rafique son of the donor, Muhammad Arshad and Saleem Ullah donee. Mst. Hakim Bibi donor and her son Muhammad Yousaf (PW-1) have categorically denied their thumb-impressions on any statement before the Patwari Halqa or the Tehsildar Halqa. It was therefore incumbent upon the petitioners to get the thumb-impressions of Mst. Hakim Bibi and her son Muhammad Rafique on Ex.D-1 verified with their admitted thumb-impressions. Petitioners did not make any such effort during the course of evidence before the learned trial Court as well as before the learned lower appellate Court.
8. Record reveals that on 26.7.2014 petitioners lodged an application under Order XLI Rule 27, CPC before the learned lower appellate Court seeking permission to produce copy of report of Office Qanungo dated 15.2.2012, copy of FIR No, 52/2012 P.S. Anti Corruption and copy of entries in dock register dated 7.4.1990 and 8.6.2004 with regard to deposit of Mutation No, 86 dated 7.4.1990 in the Tehsil Office. The application was resisted by the respondents and the learned lower appellate Court dismissed the said application vide order dated 11.10.2014.
9. Rule 27 of Order XLI of the Code of Civil Procedure, 1908 stipulates that the parties to an appeal shall not be entitled to produce additional evidence, wh ether oral or documentary, in the appellate Court except when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial reason.
10. In this case the suit was instituted on 21.2.2006 and the petitioners produced the evidence in the year 2009. At the time of producing the evidence it was very much in the knowledge of the petitioners that Part Sarkar of alleged Mutation No, 86 dated 7.4.199 has been misplaced/lost but he did not bother to bring on record and material in this regard. The proposed documents pertain to the period from 1990 to 2004 i,e, before the institution of the suit. Petitioners did not lodge any such application before the learned trial Court or before the lower appellate Court in the first round of litigation. Proposs documents therefore are not necessary to resolve the real matter I controversy between the parties i,e, a valid oral gift in favour of the petitioners. In the peculiar circumstances of the case learned lower appellate Court has rightly refused the petitioners' application under Order XLI Rule 27 of the, CPC through a well reasoned order date 11.10.2014.
11. In this case subject matter of the impugned gift is an area measuring 26 Kanals 11 Marlas comprising 19/384 share in Khewat No, 12 situated in village Saich Kalar Tehsil Kamoki District Gujranwala. It is also evident on the record that total holding of Mst Hakim Bibi is 29 Kanals 03- Marlas in the said Khewat equal to are area measuring 583/11780 share. The impugned gift therefore pertains to an undivided share of a joint Khata. Mst. Hakim Bibi an old illiterate lady the alleged donor was having two sons at the time of alleged gift. Contents of Rapt Roznamcha Waqiati (Ex.D-1) bear that impugned gift were made by the donor in lieu of services rendered by Saleem Ullah. There is nothing in the evidence that what services is fact the said Saleem Ullah had ever rendered to the donor motivation her to gift out her agricultural land in favour of her real nephew instead of her real sons. No reason therefore is brought on the record for making alleged gift by the donor in favour of her real nephew which by passing her real sons against whom there was no complaint. In the above circumstances no confidence inspiring evidence is produced by the petitioners to substantiate the factum of any valid oral gift Reliance is made on the case of Muhammad Latif v. Ghulam Hussain and others (2005 SCM R 1344).
12. It is an established principle that a part of a joint Khata is not capable of actual physical possession therefore petitioners' pleaded that actual possession of the gifted land or delivery by the donor to the donee has neither any force nor substantiated by any speck of material. Subject matter of the impugned gift of land is a part of a joined Khata owned by the donor along with her nephew. In absence of produce of a valid gift in favour of nephew, his aunt Mst. Hakim Bibi would be deemed in joint possession of the disputed land. The rule i,e, mere no participation in the profits would not constitute ouster of a co-sharer laid down in the case of Ghulam All and others v. Mst.
Ghulam Sarwar Naqvi (PLD 1990 SC 1) therefore is squarely applicable to the facts and circumstances of this case.
13. It is an established principle of law that a co-sharer is not required to institute a declaratory suit within six years under Article 120 of the Limitation Act 1908 because no limitation runs against the co-sharer to enforce his rights in accordance with law. Argument of the learned counsel for the petitioners that the respondents' suit was barred by limitation therefore is devoid of any force and repelled accordingly.
14. I have carefully gone through the facts of the cases cited by the learned counsel for the petitioners which are altogether distinct and distinguishable from the facts of the instant case. The cited cases therefore are of no help to the petitioners.
15. In view of the above, concurrent findings on facts and law in the absence of any jurisdictional error or material irregularity cannot be interfered with in the exercise of revisional jurisdiction.
Accordingly, this civil revision petition having no merits is dismissed in limine.