MAHMOOD AHMAD BHATTI, J.---This appeal has been preferred against the judgment and decree dated 16.7.2010 passed by the learned Civil Judge, Burewala, District Vehari, whereby he dismissed the suit of the appellant for declaration along with perpetual injunction.
2. The appellant/plaintiff instituted a suit for declaration, contenting therein that his grandfather, Barkat Ali was owner of gricultural land measuring 23 Acres,
5. Kanals and 2 Marlas, situated in Chak No.503/E.13. Burewala, District Vehari. He was stated to be a man of advanced years, due to which he was not in position to cultivate the entire land on his own. On the other hand, his only son, Muhammad Rafique, who was none other than the real father of the plaintiff, was a Government employee, discharging his duties in Education Department, which prevented him from giving a helping hand to his father. In this state of affairs, Barkat Ali made an oral gift of land measuring 66 Kanals, 07 Marlas to his grandson, the plaintiff. The verbal gift was alleged to have been made in the presence of his parents, brothers, sisters and other witnesses in December, 1994. It is further averred in the plaint that possession was delivered to him in its wake. Barkat Ali passed away in September 2001 and a mutation of inheritance No.358 was attested in favour of his only son, Muhammad Rafique, father of the plaintiff on 17.3.2003. A declaration was sought by the plaintiff to the effect that the aforesaid mutation was the outcome of fraud and misrepresentation and as such was ineffective upon his rights, whereas he was the absolute owner in possession of the land measuring 66 Kanals 07 Marlas by virtue of the oral gift made to him.
3. Muhammad Rafiqaue, father of the plaintiff, contested the suit and rubbished the claim put forward by the plaintiff. It was maintained by him that the suit was false, frivolous, vexatious, tortuous and malicious one and that the plaint was liable to be rejected under Order VII, Rule 11, C.P.C.
4. As the suit got under way, Muhammad Rafique, the original defendant breathed his last. As a result, other brothers, sisters and mother of the plaintiff were substituted and arrayed as defendants.
5. Given the divergent pleadings of the parties, the learned trial Court framed the following issues:- -
(1) Whether the plaintiff is entitled to decree for declaration as prayed for? OPP
(2) Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD
(3) Whether the suit of plaintiff is liable to be dismissed under Order VII, Rule 11 C.P.C.? OPD
(4) Whether the suit is barred by time? OPD
(5) Whether the plaintiff is estopped by his words and conduct to file the instant suit? OPD
(6) Whether suit is false and frivolous, as such, defendants are entitled to get special cost under section 35-A of C. P. C. ? OPD
(7) Relief.
6. In order to prove his case, the plaintiff examined Muhammad Hassan Tani as P.W.2, Waseem-u- Rehman as P.W.3 and he himself appeared as P.W.1. In documentary evidence, he produced an attested copy of complaint made under the Illegal Dispossession Act, 2005 as Exh.P.1, copy of application for amendment to the plaint as Exh.P.2, order sheet dated 9.5.2006 as Exh.P.3, order sheet dated 30.6.2006 to 26.9.2006 as Exh.P.4, Copy of complaint as Ex1LP.5, copy bf Khasra Girdawri as Exh.P.6, copy of Jamabandi as Mark-A, copy of gift deed as Mark-B and copy of an affidavit of one Abid Mahmood as Mark-C. A copy of the order dated 8.3.2006 passed by this Court, was also tendered as Exh.P.7. After obtaining permission from the Court, the plaintiff produced copy of complaint as Exh.P.8 and copy of death certificate as Exh.P.9 by way of additional evidence.
7. In rebuttal, two brothers of the plaintiff, namely, Yousaf Rafique and Noman Rafique, respondents Nos.2 and 3- herein, appeared as D.W.1 and D.W.2,respectively, however, statement of D.W.1, Yousaf Rafique, was wiped out in consequence of an order passed by an Additional District Judge, Burewala. In documentary evidence, the defendants' side produced copy of complaint and statement as Exh.D.1, copy of statement of late Muhammad Rafique as Exh.D.2, copy of order of an Additional Sessions Judge, Vehari as Exh.D.3, copy of death certificate of Muhammad Rafique as Exh.D.4. Copies of register Haqdaran-eZameen for the years 2001-2002, 2005-2006 and three additional copies thereof pertaining to Khewats Nos.6, 7, 8 were got exhibited as Exh.D.5 to Exh.D.8, respectively, whereas copies of mutation Nos.565 and 355 were got marked as Mark-A and Mark-B, respectively.
8. Having recorded the evidence pro and contra led by the parties, the learned trial Court proceeded to dismiss the suit of the plaintiff vide judgment and decree dated 16.7.2010.
9. As stated above, the plaintiff felt aggrieved by the findings recorded by the learned Court below and preferred the instant appeal on the grounds that the impugned judgment suffers from misreading and non-reading of evidence; that the cogent, convincing and consistent evidence led by the appellant that was duly supported and corroborated by the documentary evidence, particularly the entries carried by Khasra Girdaweri (Exh.P.6), were brushed aside without any rhyme or reasons; that mutation of inheritance No.358 questioned by him was attested in disregard of the oral gift made in his favour by his grandfather that the learned trial Court did not apply its judicious and judicial mind to the facts, resulting in gross miscarriage of justice,and that the impugned judgment and decree proceeded on conjunctures and surmises.
10. In amplification of the grounds urged by the appellant, the learned counsel for the appellant has argued that valid gift can be made orally; that a writing is not necessary to constitute a valid gift; that compulsory registration of a gift is not necessary under the Registration Act, 1908; that there was adequate and ample testimony both in the shape of oral and documentary evidence that following the making of oral gift, possession was delivered to the appellant and that the plaintiff discharged the onus placed upon him regarding the transaction of gift. In support of his submissions, he placed heavy reliance upon the judgments reported as "Muhammad Zaman Khan v. The Additional Chief Land Commissioner" (1986 SCMR 1121), "Khurshid Ahmad and 4 others v. The Senior Member, Federal Land Commission and 5 others" (PLD 1989 Karachi 610), and "Hakim Khan v.
Aurangzeb and another" (PLD 1975 Lahore 1170).
11. On the other hand, the learned counsel for the respondents has supported the impugned judgment and decree. It is argued by him that like other respondents, the appellant is entitled to the inheritance of the land left by his father, Muhammad Rafique, which devolved upon him upon the death of his father, Barkat Ali, but the appellant is not content with his share and is aiming at land over and above his entitlement on the basis of a frivolous claim of oral gift. It is urged by him that possession was never handed over to the appellant in the capacity of a donee nor was the same reflected in the revenue record, which by itself is sufficient enough to belie his claim. He has also made the argument that there was no reason for Barkat Ali to prefer his grandson over his own son in respect of a big chunk of land. It is lastly argued by him that the very fact that P.W.2 and P.W.3 are not related to the parties nor do they hail from the locality where the suit land is situated goes a long way to show the falsity of the claim of the plaintiff/ appellant.
12. We have heard the learned counsel for the parties at considerable length and perused the record of the learned trial Court with their assistance.
13. From a perusal of the plaint, it is crystal clear that the appellant did not spell out the details as to the date, time and place when and where the alleged oral gift was made to him. No doubt, a valid gift can be made orally. It is equally true that no written instrument is required to constitute a valid gift nor does the law require that it should be compulsorily registered. Suffice it to make reference to the judgments of the Hon'ble Supreme Court of Pakistan reported as "Muhammad ljaz v. Khalida Awan" (2010 SCMR 342), "Maulvi Abdullah v. Abdul Aziz" (1987 SCMR 1403), "Nagina Begum v. Tahzin Akhtar" (2009 SCMR 623) and "Muhammad Zaman Khan v. The Additional Chief Land Commissioner" (1986 SCMR 1121) relied upon by the learned counsel for the appellant, in support of these propositions of law. But the question is whether a person putting forward his claim on the basis of an oral gift is not to be pinned down to certain specifics so as to judge the veracity of his claim and to arrest the trend of making false claims. In at least two reported judgments of this Court, it was held that a plaintiff making claim on the basis of an oral gift must set out the particulars as to when, where and in whose presence this momentous event took place. In the case of "Ghulam Zainab and another v. Said Rasool and 8 others" (2004 CLC 33), it was observed that:-- "From this narration of evidence produced by the petitioners, it is clear that they failed to prove time, date or place of gift in their favour. Though learned counsel for the petitioners has attempted to show that from cross- examination of these witnesses, one can determine the time and day of the gift, but in absence of any such assertion in the plaint, some fake assertions In cross- examination, which also do not specify the time and day of gift,of gift is not the transaction proved."
14. In the case of "Mst. Imam Sam n and 4 others v. Dr. Shahid Mahmood and another"(2006 YLR 1102), it was held that:- "Undoubtedly, the immovable property, can be gifted through oral mode, but for such a transaction, very strict and positive evidence is needed; the donee who is the beneficiary of the gift, has to prove in unequivocal and specific terms the date, day and the time; when the gift was made, the consideration of the gift and also the persons in whose presence, it was so made.
Unfortunately, in the instant case, the above essential ingredients are conspicuously missing."
15. As per the averment made in the plaint, the alleged gift was made to the plaintiff in December, 1994, but it was never reported to the Patwari Halqa norwas it given effect to in the revenue record.
An argument made by the learned counsel for the appellant that this could not be done on account of the failing health of the donor has not impressed us for a simple reason that the alleged donor breathed his last in September, 2001, as is borne out by Exh.D.4. There is a time lag of 7 years in between the two happenings. No evidence has been produced as to the infirmity with which he was suffering. On the contrary, a perusal of Exh.D.4 shows that at the time of his departure from the world, the alleged donor was 73 years old and he was not suffering from any particular disease, rather he met with an accident, which terminated his life.
16. It has been emphasized by the learned counsel for the appellants that there is no law that an oral gift must be reported to the revenue authorities. This argument made by him flies in the face of the provisions contained in Section 42 of the W.P. Land Revenue Act, 1967. Sub-section (1) thereof reads as under:- "Making of that part of periodical records which relates to land-owners.---(1) [Subject to the other provisions of this Chapter, a person] acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall-
(a) record such report in the Roznamacha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report, within a week of its receipt by him, to the [office of the Union Administration] within which the estate is situated. (Emphasis added)"
' There is another aspect of this limb of the argument of the appellant. Conscious as he was of the above requirement of law, the plaintiff/appellant averred in paragraph No.4 of the plaint as under:- {{URDU TEXT}}
17. Therefore, importance is to be attached to the fact that the factum of oral gift was never reported to the Patwari Halqa in contravention of the law of the land.
18. The claim of the plaintiff/appellant in the plaint was that Barkat Ali, his grandfather gifted away the suit land to him in the presence of his parents, brothers, sisters and other witnesses. No one from his family testified in his favour, rather they are pitted against him, and have been arrayed as the respondents in the present appeal. Going by the common course of events, such an event might have been witnessed by some close relatives of the donor. The possibility of the strangers being present on such an occasion appears to be a remote one. According to Waseemur-Rehman (P.W.3), the gift to Qasim Rafique was made in Qasim's Baithak/drawing room and at the time, Muhammad Hassan Tari (P.W.2) and he were around the corner. He did not make mention of the names of other witnesses, including the family members, parents, brothers and sisters of the donee. His testimony runs counter to that of Qasim Rafique (P.W.1/ donee), who mentioned the names of his brothers, father and the aforesaid witnesses. This is not an insignificant and immaterial discrepancy between the testimonies of these witnesses that can be glossed over or disregarded, rather it strikes at the roots of the case regarding the gathering and as to the persons it was composed of.
19. Since the plaintiff did not specify the names in his plaint, in whose presence the alleged gift was made to him, he could not be allowed to flesh it out in his deposition. This appears to be a smart move on his part but the law of the land does not countenance the same. It is well-established law that a parry cannot be allowed to lead evidence in respect of a material fact unless it has laid the foundation in its pleadings. The idea behind this rule is that the other party is not to be taken by surprise and it should know before hand as to what lay in store for him. In this respect, it would be advantageous to make reference to the following judgments on the subject:--
(i) "Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others"
(ii) "Muhammad lqbal v. Mehboob Alam"(2015 SCMR 21).
(iii) "Messrs Choudhaty Brothers Ltd. Sialkot v. The Jaranwala CentralCo-operative Bank Ltd., Jaranwala" (1968 SCMR 804).
(iv) "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad"
(v) "Hakim All v. Muhammad Salim"(1992 SCMR 46).
(vi) "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 SC 151).
(vii) "Mubarak Ali and others v. Khushi Muhammad and others"(PLD 2011 SC 155).
(viii)" Major (Retd.) Barkat All and others v. Qaim Din and others"(2006 SCMR 562).
(ix) "Aurangzeb through L.Rs and others v. Muhammad Jaffar and another"(2007 SCMR 236).
(x) "Shall Muhammad and others v. Khanzada Gul and others"(2007SCMR 368).
(xi) "Rehmatullah and others v. Saleh Khan and others" (2007 SCMR 729).
(xii) "Muhammad Shaft and others v. Sultan"(2007 SCMR 1602).
(xiii)"Binyameen and 3 others v.Chaudhty Hakim andanother"(1996 SCMR 336).
(xiv)" Province of Punjab v. Ibrahim and Sons"(2000 SCMR 1172).
(xv) "Suo Motu Case No.10 2009"(2010 SCMR 885).
(xvi)"Sh. Fateh Muhammad v. Muhammad Adil" (PLD 2007 SC 460).
(xvii) "Zulfiqar and others v. Shahadat Khan"(PLD 2007 SC 582).
(xviii) "Malik Muhammad Faisal v. State Life Insurance Corporation through Chairman" (2008 SCMR 456).
20. The two witnesses examined by the plaintiff, namely, Muhammad Hassan Tani (P.W.2) and Waseem-u-Rehman (P.W.3) were neither his relatives nor did they hail from the locality from where the alleged donor wai residing or the suit land was situated. As per their depositions, they were specially summoned by the plaintiff for the occasion. Admittedly, they were the friends of the plaintiff. In the circumstances, their evidence was rightly .Taken by the learned trial Court with a pinch of salt. Whether they are to be dubbed as chance witnesses or interested ones, they compromised their credibility. Had the plaintiff examined a Lambardar or an elder of his tribe, it might have lent credence to his claim. But his pleadings gave him away and the documents produced by him do not support his claim a wee bit. His anchor sheet, Exh.P.6 is a copy of Khasra Girdawari, in which he has been simply recorded as a son of Malik. Nowhere has he been recorded as an owner in his own right. His attempt to take forcible possession of the suit land was foiled by his father, as is evident from Exh.D.3. This is amply borne out by the order of this Court dated 8.3.2006 passed in Cr. Revision No.74-2006 as well.
21. It is well established law that in case of disputed transactions, the onus is always on the beneficiary to prove its execution, correctness, validity and legality thereof. Suffice it to make reference to the case-law reported as "Aurangzeb throughL. Rs and others v. Muhammad Jaffar and another" (2007 SCMR 236), 2010 SCMR 1358, "Muhammad Saee v. Mst. Shillelaghs and another"
(2010 SCMR 1370), "Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others" (2008 SCMR 1384), "Rehmatullah and others v. Saleh Khan and others" (2007 SCMR 729), "Mst. Khurshid Bibi and others v. Ramzan and others" (2006 CLC 1023), "Mst. Kalsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135), "Barkat Ali through Legal Heirs and others v. Muhammad Ismail, through Legal Heirs and others" (2002 SCMR 1938), "Saleem Khan and 9 others v. Karim Khan"(2006 CLC 1006), "Nawab Din through Legal Representatives v. Said and 6 others" (2005 YLR 2024) and "Liagat Ali v. Province of Punjab through D.C.O. Gujrat and 6 others"(2005 YLR 2529).
22. In case of gifts, the onus is always on the donee to prove that the donor made gift to him voluntarily, without duress and in all senses; that he accepted the same, and, that the possession was delivered to him in its wake. If any of the ingredients/ components is missing, the claim of the donor would be rejected outright. In this respect, it would be profitable to rely upon the judgments of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Idrees v. Mst. Zeenat Bibi" (2005 SCMR 1690), "Aurangzeb through L.Rs. And others v. Muhammad Jaffar and another" (2007 SCMR 236), "Mst. Nagina Begum v. Mst. Tahzim Akhtar and others" (2009 SCMR 623) and "Mst. Shafgat Parveen v. Muhammad Iftikhar Amjad and others" (2012 SCMR 1602). Needless to add, the donor is required to prove the foregoing facets of a gift by leading, cogent, convincing, sound and incontrovertible evidence.
23. Indisputably, the declaration and acceptance of gift are critical to the validityof a valid gift, but the sine qua non thereof IG is the delivery of possession to the donee. I The law on the subject has been summed up by the Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Yaqoob through Legal Heirs v. Feroz Khan and others"(2003 SCMR 41), the relevant portion whereof reads as under:-- "-6.The delivery of possession of the land in question was essential ingredient to constitute a valid gift, is lacking in this case and thus gift without possession being ab initio void cannot be made to get the land in question mutated in favour of petitioner. In this regard we are fortified by the dictum laid down in the following cases:--
(i) Shamshad A. Shah v. Hassan Shah (PLD 1964 Supreme Court 143);
(ii) Hedaya (Vol. III, Second Edition, page 482);
(iii) Amir Ali's Muhammadan Law (Vol. I, Chap. V);
(iv) Baillie's Digest of Muhammadan Law (part 2, Second Edition, pages 203, 204);
(v) Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Nair and another (AIR 1945 PC 54);
(vi) Jamma-ush-Shittat;
(vii) Sharaya-ul-Islam;
(viii) Ghulam Hassan and others v. Sarfaraz Khan and others (PLD 1956 SC (Pak.) 309);
(ix) Sadik Hussain Khan v. Hashim Ali Khan (LR 43 IA 212), and
(x) Bashir Ahmed v. Muhammad Rafiq (2002 SCMR 1291)"
24. Our independent appraisal of the evidence produced by the parties has led us to the inevitable conclusion that the appellant failed miserably to prove the factum of oral gift. Besides, he has never been in possession of the suit land as an owner thereof by virtue of the purported gift made to him.
25. From the foregoing discussion, it is clear that the appellant failed to discharge the onus of issue No.l. This was the material, crucial and core issue. The fate of the case hinges upon this issue. The rest of the issues are either its offshoots or of secondary importance.
No fault could be found with the approach of the learned trial Court towards weighing the evidence. This is not a case of misreading or non-reading of evidence either. The conclusions drawn by the Court below are unexceptionable and call for no interference. Accordingly we uphold the findings of the learned trial Court on all the issues.
26. The upshot of the above discussion is that this appeal fails and accordingly is dismissed, without any order as to costs.