' MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner filed a suit for declaration on the basis of a gift deed and permanent injunction, claiming that he in the year 1950 came into possession of a house situated in Village Rasool Nagar, Tehsil Wazirabad, the detail of said house is given in para 1 of the plaint; the house in petitioner's possession was auctioned by the Settlement Department and the respondent (now deceased) purchased the said house in auction on 19.01.1961; the respondent then went to Lahore in connection with his service but his mother Zawar Fatima continued to reside with the petitioner; the petitioner served the respondent's mother wholeheartedly; the respondent as and when came to Rasool Nagar, he also resides with him (petitioner) and the petitioner also used to service; the respondent in lieu of the service of petitioner rendered for respondent and his mother gifted the disputed house through a gift deed dated 24.8.1980; the petitioner accepted the gift, the possession was already with him; hence the gift was completed. For further strengthening the gift, the respondent also executed a Will of the house in dispute on 21.5.1997; the petitioner on the basis of said document became the owner of the property in dispute and he after demolishing the old building constructed a multistory house on the plot after obtaining permission from the TMA; the respondent claimed the ownership of the property in dispute, hence the petitioner filed a suit for declaration and permanent injunction claiming that on the basis of gift he became the absolute owner of the property.
2. The respondent filed written statement and denied the existence of any gift in favour of the petitioner; the respondent stated that he purchased the property in open auction from Settlement Department; the petitioner was not having any house, he requested the respondent to allow him to reside in the house temporarily and he will return the same to respondent; as and when the respondent demanded the vacation of the house, he will vacate the same immediately. He further stated that in case the petitioner raised any construction on the property that is without his consent and at his own risk and cost.
3. The learned Trial Court out of the divergent pleadings of the parties framed the following issues: "ISSUES:
(1) Whether plaintiff has no cause of action? OPD
(2) Whether suit of plaintiff is time barred? OPD
(3) Whether plaintiff is estopped through his words and conduct to file the present suit? OPD
(4) Whether suit of plaintiff is not maintainable in its present form? OPD
(5) Whether plaintiff is the owner in possession of house in dispute on the basis of alleged gift made by defendant? OPP
(6) Relief."
4. Both the partiesadduced their respective evidence verbal as well as documentary. The learned Trial Court after hearing the parties vide judgment and decree dated 18.6.2010 dismissed the suit; the petitioner filed appeal against judgment and decree dated 18.06.2010 which too was dismissed on 28.03.2011; the petitioner thus has assailed both the judgments and decrees of learned two courts below through the present civil revision.
5. Learned counsel for petitioners Sh. Naveed Shehryar, Advocate submits that the impugned judgments and decrees dated 18.06.2010 and 28.03.2011 are against facts and law and suffer from material illegalities and irregularities; the findings recorded in two impugned judgments are based on misreading and non-reading of record. The petitioner has produced Ex.P-1 and Ex.P-2 the gift and Will; both the documents were fully proved. PW-1 is the marginal witness of Ex.P-1; PW-2 is .The marginal witness of Ex.P-2; PW-4 is son of scribe Farzand Ali, the scribe of Ex.P-1 since died, PW-4 confirms the writing of his father; PW-5 is stamp vendor who sold the stamp paper of Ex.P-1 and is the scribe of the same. PW-6 is the Record Keeper of stamp vendor; P'W-7 is also a stamp vendor; PW-8 is a Notary Public who attested the subsequent document of Will Ex.P-2 and petitioner appeared himself as PW-9; PW-10 is the scribe of Ex.P-2.
' All the witnesses have successfully proved the execution of Ex.P-1 and Ex.P-2 but the learned courts below have failed to appreciate the statements of the witnesses; the petitioner's possession is more than 60-years old which ought to have been considered by the courts below while deciding the suit; the petitioner has got sanctioned the building plan of the house by TMA and by investing huge money has raised multistorey building on the plot but the respondent never objected the same and rightly so because he has already gifted the property to petitioner. He further submits that the petitioner's status is of a licensee and the licensee constructed permanent building on the licensed site even under implied license; the license became irrevocable as to building and licensee cannot be ejected. He has relied on Mt.Manbi v. Kodu (AIR 1929 Nagpur 269). He submits that no doubt the ground of licensee was not taken before the learned courts below and this is the first time when the petitioner raised this point but the courts are fully empowered to grant relief if the courts found that the parties are entitled to it. He submits that the courts are not precluded from awarding such relief as the parties are found entitled to on the facts ascertained or proved after recording evidence by the courts. He has relied on Dinkarrao and others v. Shamrao and others (AIR 1930 Nagpur 173). Learned counsel submits that where possession has been obtained and there is a public notice of the same in the manner raising some construction over the suit land, limitation would start from the date of taking possession of the land. He lastly adds that pleadings of parties would not control or govern the application of correct law to establish or prove facts. He has relied on Din Muhammad and another v. Subedar Muhammad Z,aman (2001 SCM R 1992) and Abdul Sattar v. Mst.Sardar Begum and 12 others (1992 SCM R 417).
6. Learned counsel for respondent supports the judgments and decrees of two courts below and submits that the document Ex.P-1 and Ex.P-2 both are forged; the respondent never signed the documents and the learned courts below have rightly came to the conclusion that the documents were not executed by the respondent. Learned counsel for respondent submits that in case Ex.P-1 was executed, the matter became final, what was the need for execution of Ex.P-2. This very fact shows the intention of petitioner that he wanted to strengthen his case by manufacturing two documents in his favour. Learned counsel thus submits that the petition is liable to be dismissed.
7. Heard, record perused.
8. The petitioner has filed a suit on the basis of two documents i.e. Ex.P-1 and Ex.P-2, one is allegedly a gift deed and the other is a Will or Bakhshish. The case of petitioner is that the respondent has gifted the suit house to petitioner in lieu of his services rendered for him and his mother. The perusal of Ex.P-1 will show that it is an agreement (Iqrar Nama) which did not found mention a single word about the services of petitioner who allegedly rendered for respondent and his mother.
It is also not found mention in the document that the mother of respondent was residing in the house; the learned courts below have rightly came to the conclusion that Ex.P-1 is the document which was written by petitioner himself. The petitioner's signature on Ex.P-1 (Muhammad Hashim) resembled with the petitioner's name Muhammad Hashim mentioned in the 8th line of Ex.P-1 but in the said document it is no-where mentioned, what is need for its execution. For the sake of argument if it is accepted that this document was executed in 1980, what was the need for strengthening this document after expiry of 17-years, as Ex.P-2 is shown to be written on 21.5.1997.
Further, the said document did not find mention the earlier document i.e. Ex.P-1. It means both documents are independent in nature: This very fact is sufficient to prove the mala fide intention of the petitioner. The petitioner tried to usurp the house of respondent who allowed him to reside in his house. Further, the petitioner when applied to TMA for sanctioning of site plan, he shown himself to be the owner of the house, he filed the building plan with TMA for sanctioning in December 1982 which was sanctioned on 15.12.1982; this means that on 15.12.1980 the alleged gift deed Ex.P-1 was in his possession and when plan has been proved, he constructed the house, what was the need for the execution of Ex.P-2. Both the learned courts below have thoroughly examined each and every aspect of the case and evidence produced by the parties. The respondent is having a transfer deed in his favour issued by the Settlement Department Ex.D-1. In case the respondent has gifted the property to petitioner, the original PTD should have been in possession of the petitioner and not in possession of the respondent. Ex.P-1 did not fulfil the requirement of gift as consideration in the said document is not available; the second document is a Will which was presented to Notary Public, he deposed that it was the petitioner only who bring the document to him for attestation and he attested the document on the request of petitioner. The above said facts clearly establish that the petitioner fraudulently got prepared two documents Ex.P-1 and Ex.P-2.
9. Although the petitioner has not raised objection about the license in terms of Section 60 of the Easements Act, 1882 but even if it is considered that the petitioner was a licensee then licensee has no right to retain the property without consent of the licensor. License is merely a competence to do something, which, except for such permission would be unlawful; license does not contemplate transfer of interest in property. License is a permissible right as the licensee holds the licensed property purely on the behest of its grantor which can be revoked at any stage. The petitioner has got the site plan sanctioned claiming himself to be the owner of the property and now he made somersault as an alternate plea has raised on the ground that he is a licensee whereas his suit is based on the document of alleged gift; meaning thereby the petitioner himself admitted that he is not donee of the suit property. It has not been proved from any document on record that the petitioner was a licensee. In case the argument of learned counsel for petitioner is accepted that the court can grant relief if parties are entitled to it on facts ascertained in the case, the facts ascertained in the case are conditional precedent for grant of relief other than the pleadings. The facts ascertained in the case are that the petitioner committed fraud and prepared two documents Ex.P-1 and Ex.P-2 for becoming the owner of the property, a slight iota of evidence is not available on record which will show that the petitioner can be treated as licensee in terms of Section 60 of the Easements Act, 1882.
10. In view of above, the petition fails, it is dismissed.