' MUHAMMAD YOUNIS THAHEEM, J.--- Habibullah Khan and Sharifullah Khan, defendants/petitioners, through instant revision petition have challenged the judgment and decree of the learned District Judge, Lakki Marwat, whereby appeal of Mst. Bibi Amina, plaintiff/ respondent, against the judgment and decree dated 30.4.2009 of the learned Civil Judge-II, Lakki Marwat, was partially accepted.
2. Facts of the case are that Mst. Bibi Amina filed a suit against the petitioners/defendants for declaration, possession through partition and permanent injunction against Habibullah Khan etc. To the effect that plaintiff and proforma defendants' father namely Khawaja Ahmad son of Sadat Khan had joint house with father of defendants Nos.1 and 2 namely Abdullah Khan son of Sadat Khan in Abadi deh Mouza Ghazi Khel, Lakki Marwat and both the parties are residuary heirs; that later on pro forma defendant sold her share in the house to defendant No,3 vide stamp paper; that after death of Khawaja Ahmad he left behind a widow Mst. Rakhila Bibi and two daughters, i,e, plaintiff and other proforma defendant Gul Mina; that Mst. Rakhila Bibi (widow of Khawaja Ahmad gifted her share in the house to plaintiff vide written stamp paper, dated 02.7.1999. Plaintiff and proforma defendants are married women but some rooms of the house are in their possession.
Mst. Gul Mina proforma defendant has sold out her share in the house to defendant No,3 Mst. Gul Mina whereas rest of the house is in possession of defendants Nos.1 and 2. Partition of the suit house is necessary as disputes always arise due to joint ownership. Original defendants Nos.1 to 3 have started demolishing of plaintiff's rooms and are bent upon taking possession of the whole house and are intending raising new construction in it to the great detriment of plaintiff. These activities will deprive her of her share in the joint house.
3. Defendants were summoned who appeared and contested the suit by filing written statement.
The divergent pleadings of the parties gave rise to the framing of 9 issues whereafter parties produced their pro and contra evidence. The learned trial Court on scanning evidence brought on record and in the light of arguments of learned counsel for the parties, dismissed the suit of the plaintiff/petitioner on the ground that she has got no cause of action vide judgment and decree dated 30.4.2009.
4. Feeling dissatisfied with the judgment and decree of the learned trial court the plaintiff filed Regular Civil Appeal before the Court of learned District Judge, Lakki Marwat, who vide his judgment and decree dated 16.3.2010 accepted the appeal and set aside the judgment and decree of the trial court and suit of the plaintiff was partially decreed.
5. Feeling aggrieved from the judgment and decree of the learned appellate Court below the present petitioners have assailed the same through instant revision petition inter alia on the grounds mentioned in the petition.
6. I have heard arguments of both the learned counsel for the parties and gone through the record of the case with their valuable assistance.
7. From the perusal of record it transpires that two brothers Khawaja Ahmad and Abdullah sons of Sadat Khan own a dwelling house fully detailed in the plaint, in equal shares. Habibullah is the son of Abdullah Khan while Sharifullah is the son of Habibullah Khan, while the other brother Khawaja Ahmad have no male issue, but have two daughters namely Mst. Bibi Amina plaintiff and Mst. Gul Mina pro-forma defendant and widow who is since dead.
8. Mst. Bibi Amina, the plaintiff averred in her plaint that after the death of her father, her mother Mst. Rakhela Bibi gifted her share out of the legacy of Khawaja Ahmad in the common suit house vide written gift deed dated 02.07.1999. It is further averred in her plaint that she (plaintiff) and performa defendants are the owners in possession to the extent of 1/2 share in the suit house from the legacy of their father hence, prayed for declaratory decree through partition against her sister Mst. Gul Mina and defendants Nos.l, 2 and 3.
9. Later an amended plaint was filed wherein one Ghani-ur-Rehman son of Fazal Ghani Gul was impleaded as defendant No,3 and Mst.Gul Mina was placed as defendant No,4. The record reveals that the defendant No,1 submitted written statement wherein he pleaded that one Salsi Faisla has been effected between the parties and the father of plaintiff and pro forma defendant No,4 during his life time had transferred his share through sale to one Fazal Ghani Gul, the father of. Defendant No,3 present respondent No,2 in the petition.
10. Plaintiff to prove his case produced one Latifulla Stamp Vendor/Petition writer as PW-1, who produced petition register wherein at S.No,227 dated 02.07.1999 is entered Iqrarnama as Ex:PW1/1 in favour of plaintiff Mst. Bibi Amina gifted to her by her mother Mst. Rakhela Bibi. This witness during cross-examination admitted that Ex:PW 1/1 did not bear the CNIC number of the parties as well as witnesses on it. It is further mentioned in the stamp paper that Mst. Rakhela Bibi will receive all the usufructs and produce during her life time.
11. Mst. Bibi Amina appeared as PW-2, who during examination in chief stated that suit house was originally owned by her father and her paternal uncle namely Abdullah Khan in two equal shares and are now dead, whereas her mother Mst. Rakhela Bibi has transferred her share of the house to her which she obtained from the legacy of her father. She further stated that her other sister Mst.
Gull Mina has transferred her share of the house to Respondent No,2/defendant No,3 through sale and also produced and verified site map of suit house as Ex:PW 2/1, while endorsed her power of attorney in favour of her husband which is Ex:PW2/2. This witness during cross-examination admitted that share of her father in the house was separated during his life time from his brother Abdullah Khan. She categorically admitted during cross-examination that the share of her father in the suit house, which is now a separate house is in possession of Fazal Ghani, who had demolished the old structure and had constructed new house. She further admitted that her father Khawaja Ahmad during her life time had gifted some share of his house to Fazal Ghani respondent No,2/Defendant No,3, while remaining share of her mother is her ownership. She further admitted it correct that amongst the parties, Fasila Salsi was made by arbitrators headed by Adam Khan. She also produced her husband Misal Khan as her witness, who was also her attorney.
12. Misal Khan her attorney and husband during examination in chief stated that Mst. Gul Mina has transferred her share to Ghani Rehman respondent No,2 and some share of plaintiff is still remaining. This witness during cross-examination also admitted it correct that Khawaja Ahmad had gifted his share of suit house to Fazal Ghani (the father of Ghani Rehman) in his life time. This witness denied the arbitration proceedings. He admitted the fact that the entire area falling in share of Khawaja Ahmad has been constructed by the Fazal Ghani.
13. The plaintiff also produced one Gul Nawaz as PW-4, who admits his signature on the written stamp paper No,227 dated 02.07.2009. During cross-examination he admitted that he do not know Mst. Rakhela Bibi in person. He further deposed that Mst. Rakhela Bibi handed over his CINC to the petition writer and he also gave his CNIC card to the petition writer. He stated that he went to Ghazi Khel along with Ariaz Nawees and negated the suggestion that the Stamp paper No,227 Ex:PW1/1 was scribed in his absence and later on was thumb impressed by plaintiff upon the saying of her husband.
14. While on the other hand, the defendant in rebuttal produced DW-1, Said Ghulam, who stated during examination in chief that Khawaja Muhammad Ahmad in his life time gifted the share of his house vide scribe deed on stamp paper in favour of Fazal Ghani Gul. The scriber, Muhammad Azim Khan of Dara Pezu, and one marginal witness were dead, while the other marginal witness Karim Khan is absconding in a criminal case. He categorically stated that Khawaja Ahmad gifted his share of house in favour of Fazal Ghani Gul. He also stated and verified the Salsi Faisla effected between the parties by Haji Adam Khan. He further stated that in consequence of that Salsi Faisla the standing trees worth Rs,80000/- were given to the husband of Bibi Amina who cut it and sold it in lieu of Rs,80,000/-. Hence, Mst. Bibi Amina has no share in the suit house, as her father in his life time had transferred his entire share in favour of Fazal Ghani. This fact is also admitted in cross- examination by DW-1 that Khawaja Ahmad through stamp paper had transferred his entire share in favour of Fazal Ghani. He narrated the story about convening of Jirga and participation of 15/20 persons headed by Adam Khan in the baithak of Adam Khan at Deh Ghazi Khel.
15. Habibullah Khan the present petitioner, appeared as DW-2, who stated in his examination in chief that Khawaja Muhammad has gifted his entire share of common house to Fazal Ghani Gul and in this respect stamp paper was also scribed. This witness also admitted the convening of arbitration proceedings presided over by one Adam Khan who himself was Salis. This defence witness during cross-examination admitted that Khawaja Muhammad has gifted his entire share in favour of Fazal Ghani and added that at spot since twenty years the houses is in possession of Fazal Ghani and now with his son Ghani ur Rehman.
12.(sic) In view of above discussed evidence it is crystal clear that the plaintiff Mst. Amina Bibi has failed to prove the very factum of gift from her mother as possession is not with her and she admitted the possession of Fazal Ghani Gul and delivery of possession is very important. Moreover, her mother has inherited nothing from her husband when Khawaja Muhammad had disposed of his ownership and nothing was left to be devolved upon her legal heirs. So the person who himself is not owner of property, how she/he can legally further transfer that hypothetical property through gift or sale or through any other means. In the instant case it is proved that the father of plaintiff Khawaja Muhammad/Khawaja Ahmad during his life time had transferred his entire share in the house to Fazal Ghani Gul, through gift and Fazle Ghani and now his sons or LRs are since his life time are in possession of separate suit house which has been reconstructed by them, which fact has also been admitted by the plaintiff. Now the question arises that when Khawaja Ahmad was not owner of separate home and its possession was with Fazal Ghani as owner, then what home was left for his legacy after death of his father, as there was left no immoveable property to be devolved upon his legal heirs, if there was some property in his name at the time of death then the present petitioner real nephew was also entitled to it. The plaintiff/respondent has failed to substantiate his claim by producing cogent and coherent evidence, rather she herself admitted that share of her father in the joint house was transferred in favour of Fazal Ghani.
13. So from the above discussion this Court reaches to an irresistible conclusion that the learned appellate court has committed illegality while passing impugned judgment and partial decree which is not sustainable under the law.
14. For the reasons discussed above, this revision petition is accepted, impugned judgment and decree of learned appellate court is set aside, the judgment and decree of the learned trial Court is restored and resultantly suit of the plaintiff is dismissed.