' MUHAMMAD ALAM, J.--- This civil revision petition has been directed against the judgment/decree dated 23-05-2013 of the learned Additional District Judge Ghizer. Through the impugned order, learned Additional District Judge accepted appeal (CFA No.14/2012) of the respondent/defendant and set aside judgment/decree dated 10-10-2012 that the learned trial court passed in Civil Suit No .31/2007.
2. Through Civil Suit No.31/2007, petitioner/plaintiff sought a decree for 1/4th (one fourth) in the properties of her father, namely Hajat Aman (late). Mr. Hajat Aman (late) had only four daughters as his legal heirs. Respondents/defendants, who are real sisters of the petitioner/plaintiff, contested suit on grounds of gift deeds dated 15-04-2002, Exh.D/1, and gift deed dated 11-09-1993, Exh.D/2. In addition to the said gift deeds, respondents/defendants jointly averred that respondent No.1/defendant No.1, Mst. Zaitoon Bibi, was Dukhtar Khana Nasheen of their father. Learned trial court completed all trial proceedings and passed decree in the following words:- "Keeping in view my findings on issues Nos.1, 2, 3, 4, 7, 9, 10, 11, 12 and 13, the suit is decreed to the effect that plaintiff is entitled to 1/4 share from the suit properties except property described as Chono Chako ( ) which shall remain property of defendant No.1, with costs. File."
' On appeal (CFA No.14/2012), the learned first appellate court accepted the appeal and set aside the above referred judgment/decree of the learned trial court.
3. I have heard learned counsel for parties and have gone through the material available on file. It is not disputed that petitioner is real sister of respondents, and petitioner as well as respondents are real daughters of Mr. Hajat Aman (late). In the case in hand, respondents/defendants have admitted the contents of paras Nos.1 to 3 and 5 as correct in their joint written statement dated 25- 03-2008. It appears that petitioner/plaintiff filed amended plaint on 14-03-2008 and in reply to the same, respondents filed written statement on 25-03-2008. So, by admitting the contents of paras Nos.1 to 3 and 5 of the plaint, respondents have admitted that parties to the case are the only legal heirs of the deceased and the property of their deceased father devolved on the parties for partition. Once it is admitted that the suit property devolved on the parties to the case for partition, the burden of proof shifted to respondents/defendants, who in my opinion are bound to prove the alleged gifts as correct and fit to be acted upon. Yet another question for consideration is whether said gifts are sufficient to accept as excluding the petitioner/plaintiff from any share in the property of Mr. Hajat Aman (deceased father of parties).
4. So I am taking the evidence of respondents/defendants for discussion. Learned trial court has framed 14 issues. Respondents produced 4 DWs and two documents, Exh.D/1 and Exh.D/2, in proof of the transfer of the suit property to the respondent/defendants. A very important point for consideration is that Mr. Hajat Aman, father of the parties, remained in possession of his properties till his death. It is admitted that said Mr. Hajat Aman died 2 years before the institution of the suit. So the question arises that how and why the two documents, Exh.D/1 and Ex.D/2, can be accepted as correct gift deeds? Admittedly, delivery of possession of the gifted property is a pre-requisite for a valid gift, and in the case in hand, Exh.D/1 and Exh.D/2, have been drafted and completed long before the death of Mr. Hajat Aman. All this shows that Mr. Hajat Aman did not transfer possession of the lands described in the said two documents to the donees thereto. In this connection, statement of attorney for respondents is relevant, wherein, he has stated, at the outset of his statement that Mr. Hajat Aman remained in possession of his properties till his death. In the same part of his statement, attorney for respondents/defendants further negates the version of said respondents embodied in para No.4 of the parawise written statements. The suit has been filed on 04-04-2007 and attorney for respondent stated that Mr. Hajat Aman died in 2005. So, the suit is well within time.
5. Moreover, in the case in hand, issues Nos.5 and 6 are very important but respondents did not produce any evidence in proof of the said two issues. So the issues were proved in negative.
Moreover, in his statement, DW-1 has stated that none of the donees of Exh.D/1 and ID Exh.D/2 were present when the said documents were being prepared. In the case in hand, Mr. Abdul Sharif, one of the PWs, appeared in the Court and denied about execution of Exh.D/2, although he was supposed to give statement in support of the said document. The said PW is a marginal witness of Exh.D/2. Respondents did not produce any marginal witness of Exh.D/1. In my opinion, respondents/defendants have failed IE to prove the, two gifts as valid and correct through any evidence.
6. So, in the case in hand, the burden of proof has shifted to respondents/defendants who have badly failed to discharge the same, therefore, the impugned judgment is result of mis-reading and non-reading of the evidence of parties. I, therefore, allow this petition, set aside impugned judgment and upheld the judgment/decree of the learned Civil Judge. Petition is allowed. This file be consigned to record.