Ch. Muhammad Ipbal, J. Through this appeal, the appellant has challenged the validity of judgment and decree dated 23.5.2015 passed by the learned Civil Judge Ist Class, Sahiwal, whereby the suit for declaration filed by the appellant's husband was dismissed.
2. Briefly the facts relevant for the disposal of the instant appeal are that the appellant's husband filed a suit for declaration contending that the father of the parties purchased a piece of land measuring 8-Kanals 1-Marla 2-Sarsahi bearing Khasra No.5329 Khatooni No.440, Khewat No.267 situated at City Sahiwal, the major portion of which was gifted to Habib Ahmad Khan, the appellant's husband by his father, upon which, he constructed a residential building whereas some portion of the said land was gifted to defendants No.1 and 2 upon which they also constructed the residences, however, the said Tamleek was not incorporated in the revenue record; that defendant No.1 is trying to dispossess Habib Ahmad Khan, the appellant's husband from his residential building measuring 6-Kanals 14-Marlas. Defendants No.1 and 2 appeared before the learned trial Court and filed written statement contending that the suit is not maintainable; that the appellant has no cause of action; that the appellant is a lawyer and has filed the frivolous suit just to deprive them from their share in the inherited property; and that the property in question was not gifted to the appellant's husband by their father.
Initially, the suit was ex-parte decreed vide judgment and decree dated 13.03.1982 on the basis of alleged consenting written statement of defendants No.2 to 4 but later on, defendants No.1 and 2 filed an application under Section 12 (2) CPC, which was dismissed vide order dated 22.05.2005, the same was assailed in revision petition which was allowed vide judgment dated 02.11.2006 and the suit was revived.
From the divergent pleadings of the parties, the learned trial Court framed the issues and recorded pro and contra evidence of the parties. After hearing both the parties and perusing the evidence, the learned trial Court dismissed the suit vide judgment and decree dated 23.5.2015. Hence, this appeal.
3. It has been contended by the learned counsel for the appellant that the impugned judgment and decree is against the law and facts of the case; that while passing the impugned judgment and decree, the learned trial Court has neither properly considered the evidence of the parties nor decided all the issues, as such, the same is the result of misreading and non-reading of the evidence as well as based on surmises and conjectures, as such, the impugned judgment and decree is liable to be set aside.
4. On the other hand, the learned counsel for the respondents has supported the impugned judgment and decree on the ground that the learned trial Court has rightly passed the impugned judgment and decree and has not committed any illegality or irregularity what to speak of any misreading and non-reading of the evidence; that the case of the appellant is of no evidence; that neither the appellant's husband/donee himself appeared before the learned trial Court nor he produced the witnesses, in whose presence the property in question allegedly was gifted to him; that specific description with metes and bounds of the property so gifted to the appellant's husband are not mentioned in the plaint; that the appellant's husband filed the suit just to deprive the respondents from their legal shares in the inherited property of their father; that the respondents are suffering mental agony as well as financial loss since 1981 due to frivolous litigation, as such, the appeal is liable to be dismissed with heavy cost.
5. Heard. Record perused.
6. We have examined the record of the learned trial Court with the assistance of the learned counsel for the parties and found that crucial issue in this case is issue No.1 and to prove the same, Muhammad Anwar, Record Keeper, Sessions Court Sahiwal, appeared as PW-1 and produced the files of two cases titled "Mst. Nargis Shagufta etc. VS Mst. Farrukh Habib etc." and "Muhammad Amjad Khan etc. VS Mst. Farrukh Habib etc." and similarly Abid Hussain, Record Keeper, Civil Courts Sahiwal appeared as PW-2 and produced the file of case titled "Farrukh Habib VS Muhammad Amjad Khan".
Sagheer Akhter, Advocate (PW-3) deposed that he filed his power of attorney on behalf of defendants No.2 to 4 in the case titled Habib Ahmad Khan VS Saeed Ahmad Khan etc.", upon which, the signatures of Mst. Shagufta Khanam and Misbah Khanam are present and it was also signed by defendant No.1 Saeed Ahmad Khan; and that he also filed conceding written statements dated 30.3.1981 and 25.3.1981 on behalf of defendant No.1 as well as defendants No.2 to 4 respectively, which were duly signed by the said defendants.
In cross examination, the said PW admitted that it is correct that he remained the associate (junior) of Habib Ahmad Khan, Advocate (plaintiff); it is correct that defendants Saeed Ahmad, Muhammad Amjad Khan, Mst. Shagufta Khanam and Mst. Misbah Khanam never came in his chamber to engage him as counsel and that they never signed the power of attorneys and written statements in his presence; that he originally prepared written statements to be filed on behalf of the said defendants along with power of attorneys, which were filled by him, but instead of filing the same, plaintiff Habib Ahmad Khan Lodhi separately handed over to him some already drafted written statements on behalf of the defendants and also power of attorneys shown to have been signed by the said defendants and such documents viz. written statements and power of attorneys, which were handed over to him by said Habib Ahmad Khan Lodhi-plaintiff were in fact filed before the learned trial court; it is correct that neither specific description of the gifted portion of the land nor the place, date and time of the gift are mentioned in the plaint; that similarly the ingredients of gift i.e. offer, acceptance and delivery of possession of the gifted land are not mentioned in the plaint; and it is correct that he prepared the written statements on the asking of Habib Ahmad Khan, Advocate.
Mr. Muhammad Amjad Khan, one of the defendants, appeared as DW-1 and deposed on oath as under: {{URDU TEXT}} The claim of the appellant is written in para No.1 of the plaint which is reproduced as under:- {{URDU TEXT}}
7. From the perusal of the above oral as well as documentary evidence, it is proved/established on record that admittedly the appellant's husband has neither specifically mentioned the details of the property, which was allegedly gifted to him by the father of the parties nor he mentioned the names of the witnesses in whose presence any alleged gift was made besides non-mentioning of date, time and place in the plaint regarding entrance into or execution of the alleged oral/written gift, is fatal to the case of the appellant. In this regard, reliance is placed on the cases of "Mubashir Ahmad VS Syed Muhammad Shah through legal heirs" (2011 SCM R 1009) and "Muhammad Nawaz through L.Rs. VS Haji Muhammad Baran Khan through L.Rs. and others"
(2013 SCM R 1300). For the facility of ready reference, the relevant portion is reproduced asunder: - "9. A perusal of the plaint reveals that the appellant/plaintiff while asserting his claim regarding execution of alleged oral agreement in between the appellant and respondent neither mentioned the date of striking of the bargain nor the witnesses in whose presence the said oral agreement to sell was arrived at between the parties."
Moreover the appellant's husband did not make any cross-examination upon DW-1 to the extent of his above referred deposition, so, it would be presumed to be admitted as correct. In this regard, reliance can be placed on the case of Mst. Nur Jehan Begum through L.Rs Vs Syed Mujtaba Ali Naqvi (1991 SCM R 2300) and Sheraz Tufail VS The State (2007 SCM R 518) wherein it has been held that: "If defence has failed to cross-examine witness about a specific portion of his statement of examination-in-chief such unchallenged statement would be deemed to have been admitted by defence".
Furthermore, the evidence of PWs is not according to the pleadings, as such, the evidence lead beyond the scope of pleadings cannot be considered while deciding the lis between the parties. In this regard, reliance is placed on the cases of "Muhammad Nawaz alias Nawaza and others Vs. Member Judicial Board of Revenue and others" (2014 SCM R 914) and "Zulfiqar and others Vs. Shahdat Khan" (PLD 2007 SC 582).
Another important aspect of the matter is that to prove his case, neither the appellant's husband (plaintiff / donee) himself has appeared before the learned trial Court nor he had produced the witnesses, in whose presence the alleged gift was made, as such, he failed to discharge the burden of proof on him to establish a valid gift. Reliance is placed on the case of "Abdul Rahim & Another VS Mrs. Jannatay Bibi & 13 Others" (2000 SCM R 346). It was the primary duty of the appellant's husband/plaintiff being beneficiary to prove gift but no convincing, reliable and trustworthy evidence has been produced by the appellant in this respect. The case of the appellant is of no evidence. Reliance is placed on the case of "Noor Muhammad & Others Vs. Mst. Azmat-eBibi"
(2012 SCM R 1373).
8. The nutshell of the above discussion is that we are of the considered view that the appellant/plaintiff has miserably failed to prove the case and the learned trial Court has not committed any illegality or irregularity while dismissing the suit through judgment and decree dated 23.5.2015 which, even otherwise, is in consonance with the record and the law laid down by the Hon'ble Supreme Court of Pakistan.
9. In view of the above, the instant appeal is dismissed being devoid of any merits and the impugned judgment and decree dated 23.5.2015 is hereby upheld.