' MUHAMMAD ALAM, J. -- Judgment/order dated 25.6.2014 of the learned Additional District Judge, Skardu has been challenged through this appeal.
2. Appellants/plaintiffs filed Civil Suit Nos. 23/2004, 78/2008, the two numbers allotted one suit, in the Trial Court of Civil Judge First Class, Skardu. Through the said suit appellants/plaintiffs sought declaration to the effect that he is owner of land measuring 21 kanals, 2 marlas of Khasra No, 963/2 of Ranga Skardu, in the light of gift deed dated 22.2.1999. Appellants/plaintiffs averred in the plaint of said suit that respondent has taken possession of 4 kanals and 10 marlas, out of the said land, measuring 21 kanals, 2 marlas and appellants/plaintiffs are entitled for possession of the same (4 kanals and 10 marlas). So through the suit in hand appellants/plaintiffs prayed for declaration of their title to land measuring 21 kanals and 2 marlas and have also prayed for possession of 4 kanals and 10 marlas out of the said total land. Through written statement respondent/defendant contested the said suit and pleaded that the suit land measuring 4 kanals and 10 marlas has devolved on him from his mother and his mother has gifted also the same after trial. On appeal the learned first Appellate Court set aside the decree and dismissed the suit of the plaintiffs. Feeling aggrieved from the same appellants/plaintiffs filed the appeal in hand.
3. I have heard the learned counsel for parties and have gone through the file. At the outset of the hearing of arguments, learned counsel for parties argued on the question that, whether second appeal in case in hand the main question for determination is whether suit land is ownership of appellants/plaintiffs or the same is ownership of respondent/defendant? Parties to the case have claimed their title to the suit land on the basis of three gifts, Exh.P-7, Exh.P-8, the two gifts allegedly executed in favour of appellants/plaintiffs and Exh.P-11, the gift executed in favour of respondent/defendant. So the questions debated before me are pure questions of fact, therefore second appeal doesn't lie. Counsels for parties have no objection if the second appeal in hand is converted into civil revision. I, therefore, convert this appeal into civil revision and hereunder the word petitioner is being used for appellants and the word petition is being used for the appeal.
4. Mst. Sultan Bi is mother of respondent, who per averments of the plaint gifted her share in the property of her father, in favour of her brother Mr. Muhammad Bagir, through gift deed Exh.P-7 and then later on the said Muhammad Bagir gifted his share of the land in the lands of his father and lands that he obtained from his sister Mst. Sultan Bi to petitioners/plaintiffs through gift deed Exh.P-
8. Thus petitioners/plaintiffs obtained 21 kanals and 2 marlas land through the said two gifts. In the case in hand title of respondent to the suit land, measuring 4 kanals, 10 marlas is not disputed as he is admittedly real son of his mother, Mst. Sultan Bi. In my opinion burden of proof shifted to the petitioners/plaintiffs to prove that they obtained the suit land through the said two gifts. Now I am turning to the evidence of petitioners/plaintiffs in proof of the said two gifts (Exh.P-7 and Exh.P-8).
5. Admittedly marginal witnesses to Exh.P-7 have died and Mr. Akhond Mukhtar, the scribe of Exh.P- 7 is living but he has appeared as DAN-8 and has given statement in proof of Exh D-11, the gift deed in favour of respondents. So there is no evidence except the copy of document of Exh.P-7. Learned counsel for petitioners failed to cite any substantive law or any case-law showing that the simple document of gift i,e, Exh.P-7 is conclusive evidence in proof of transfer of property of Mst. Sultan Bi in favour of her brother Mr. Bagir. I, therefore, hold that petitioners/plaintiffs failed to prove Exh.P-7 as genuine and correct document. So the important question for consideration is what is, the evidentiary value of Exh P-8 without proof of Exh.P-7? It is very important to note that appellants/plaintiffs neither described the land that they obtained through Exh.P-7, in the plaint nor have described the same in their statement before the Court. Exh.P-7 does not show that the exact figure of the land that Mst. Sultan Bi allegedly gifted to Mr. Baqir therefore, we cannot say that suit land measuring 4 kanals and 10 marlas was part of the total suit land 21 kanals and 2 marlas. With this explanation, I hold that Exh.P-8 cannot be relied upon without proof of Exh.P-7.
6. As to Exh.P-8, a very interesting and important piece of evidence is op the file in the shape of some documentary evidence. Exh.D-1 is one of such documents, which is certificate issued by the then Chairman, Union Council, Shigri Kalan on 8.2002. This certificate disproves the version of petitioners/plaintiffs, who have alleged that the said Muhammad Baqir died in the year 2000, as is evident from contents of the para No, 1 of the plaint. Another document, Exh.D-2 is attested copy of order sheet dated 20.8.2002 of the Trial Court on Civil Suit No, 54/2001, which shows that suit of said Muhammad Baqir was dismissed in default on 20.8.2002. Exh.D-3 is copy of plaint of Civil Suit No, 54/2001, wherein Mr. Muhammad Baqir, the plaintiff of the said suit has sought cancellation of gift deed (Exh.P-8) on the grounds that the same gift is false and against facts. Through the said suit the said Baqir prayed for declaration coupled with permanent injunction and the said suit is against appellants/plaintiffs. Exh.D-4 is copy of the report of Naib Tehsildar, Skardu, which shows that the same has been written on 18.4.2004, fully endorsing the possession of respondent on the suit land measuring 4 kanals and 10 marlas. So these documents, at least clearly show that the donor of Exh.P-8 died in the year 2002 and did not accept Exh.P-8 as correct document and instead challenged the same in the Trial Court. So I do not accept Exh.P-8 as a correct and genuine.
Document.
7. Yet another aspect of the case is that the findings of the learned Trial Court on issue No, 1 are wrong as are contradictory to the documents referred in para 6 above, particularly with reference to the trial proceedings of Civil Suit No, 54/2001. I have gone through findings of the learned Trial Court on issues Nos. 1, 4, 8 and 12 which goes as under:-- "Issue No,
1. Whether the owner of the suit property was the Baqar s/o Kazim who has expired in the year 2000? OPP Issue No, 1 ' Onus to prove this issue is on the plaintiffs who have to prove that the owner of the suit property was the Baqar s/c Kazim who has expired in the year 2002. The plaintiffs have relied upon the documentary evidence such as Exhs.P.2-5, P-6, 7,
8. Later on Sultan Bi the mother of defendant transferred her part of share in favour of Baqar (the father of plaintiff No, 2) by way of Exh.P-7, consequently the property of Kazim devolved upon his offspring by way of Exh.P/2. Sulman and Muhammad expired issueless as such the father of plaintiff No, 2, Baqir become the whole owner of property left by deceased Kazim and his rest of two brother Sulman and Muhammad transferred their share in favour of Baqir and died issueless the plaintiffs have filed a suit for recovery of possession of 4 kanals and 10 marlas out of khasra No, 963/2 out of land measuring 21 kanals, 2 marlas but in the present khewat No, 124, khasra No, 963/2 there are many shares which cannot be discussed as they are not party in the suit. After the incorporation of Exh.P-2, Sulman and Muhammad expired issueless and the father of plaintiff No, 2 Baqir became the sole owner of the property who transferred his property in favour of plaintiff on equal share through Exh.P-8 and on the basis of which mutation No, 1039 Exh.P-4, Jamabandi Exh.P-5 and Khasra Girdawari Exh.P-6 was chalked out in favour of plaintiffs, hence this issue is decided in favour of plaintiffs upto the extent of owner while the date of death of father of plaintiff No, 2 as per Exh.D-1, 2 is 2002, hence decided accordingly.
Issue No,
4. Whether the defendant has encroached a piece of land measuring 4 kanals, 10 marlas on 19.4.2004 and raised the boundary wall? OPP IssueNo 5 ' This issue was or the shoulder of the_ plaintiffs who have to prove that the defendant has encroached a piece of land measuring 4 kanals, 10 marlas on 19.4.2004 and raised the boundary wall. The plaintiffs have failed to produce the direct witness to say that they have seen the raising of boundary wall or through whom the boundary wall has been raised, hence disproved."
Issue No,
8. Whether the Baqir s/o Kazim on knowing the fact of Hibba and mutation No, 1039 attested on 1.3.1999 filed a suit for the cancellation of hibba vide Civil Suit No, 54/2001, dated 28.9.2001 against the present plaintiffs and Fida Hussain and the status quo was being extended till his expiry? OPD Issue No, 8.
' Onus to prove this issue is or, defendant who has to prove that Baqir son of Kazim on knowing the fact of Hibba and mutation No, 1039 attested on 1.3.1999 filed a suit for the cancellation of hibba vide Civil Suit No, 54/2001, dated 28.9.2001 against the present plaintiffs and Fida Hussain and the status quo was being extended till his expiry. The defendant produced Exh.D-2 and D-3, 5, 5, the contents of which fully supported the version of the defendant; hence this issue is decided in positive.
Issue No, 12/Relief ' The upshot of the above discussion is that, the suit of the plaintiffs is decreed in the light of Exh.P-8, Exh.P-7. Costs to follow the event"
8. Learned Trial Court has given findings on issue No, 1 partly in favour of petitioners and partly against the petitioners but petitioners admittedly did not challenge the said finding in the first Appellate Court through any Court, etc. Therefore, the same has attained finality. Likewise, the findings of the learned Trial Court on issue No, 4 also are against the petitioners/plaintiffs and the same have also not been challenged in the first Appellate Court, therefore, the same has attained finality. Learned Trial Court has given findings on issue No, 8 in affirmative and the same shows that Exh.P-8 was challenged in the Trial Court through Civil Suit No, 54/2001. From plain perusal of findings of Trial Court on issue No, 12, it is evident that the Trial Court has passed a very vague decree. The said decree is very vague in the sense that the Trial Court did not pass an decree for recover of possession of the suit land specifically prayed for possession of suit land measuring 4 kanals 10 marlas. The petitioners/plaintiffs neither filed any appeal against the findings of the learned Trial Court on the above issues nor have filed any cross objection, etc.
9. In the sequel of above discussion I hold that the learned first Appellate Court has rightly set aside the judgment/decree of the Trial Court. This petition therefore, merits dismissal. And impugned judgment/order of the first Appellate Court upheld. Petitioners to bear costs. File is consigned to record. File of learned Trial Court, if any, be returned to the said Court.