1. ' GHULAM MUSTAFA MUGHAL, C.J.---The captioned appeal has been filed against the judgment and decree passed by the learned District Judge, Kahuta/Haveli on 02.10.2013, whereby the judgment and decree passed by the learned Senior Civil Judge, Kahuta/Haveli on 07.12.2012 has been maintained.
2. ' Facts forming the background of the captioned appeal are that Mst. Kamyan Bi daughter of Bodia brought a suit for declaration, cancellation of gift-deed dated 00.08.1994 and mutation No,82 in respect of suit land comprising Khasra Nos,196, 234, 194, 233, 193, 231, 232, 198, 199, 192, 197 and 235 measuring 105 Kanal 2 marlas situated in Village Kerni against the defendant in the Court of Civil Judge, Kahuta/ Haveli on 22.01.2010. It was averred that plaintiff/appellant is an illiterate and Parda Nasheen lady and has never executed any gift-deed in favour of defendant rather she has signed an agreement for giving her land for cultivation and batai. It was further averred that gift-deed dated 06.084994 is fraudulent and is an outcome of deception. It was claimed by her that she came to know about the gift-deed then defendant started construction on the suit land. The suit was contested by the defendant by filing written statement, wherein, it was stated that plaintiff has no cause of action and suit is also time barred. It was further stated that plaintiff has gifted the suit property and cancellation of the same cannot be ordered under law. The learned trial Court framed issues in light of the pleadings of the parties on 29.03.2010 and directed them to lead evidence in support of their respective claim. The plaintiff in support of her claim produced Atta Muhammad, Manzoor Ahmed and Muhammad Hussain, attorney. Conversely, defendant has produced Muhammad Hussain, Khawaja Muhammad Rasheed, Wali Muhammad and also appeared as a witness. After hearing the parties, the learned trial Court vide judgment and decree dated 07.12.2012 dismissed the suit for want of proof. Appellant, herein, felt aggrieved from the judgment and decree, went in appeal before the District Judge which also met the same fate and was dismissed on 02.10.2013.
3. ' Sardar Nazar Muhammad Khan, the learned Advocate appearing for the appellant, argued that appellant is an illiterate and Parda Nasheen lady and has taken a categoric stand that she has not executed so-called gift-deed rather an agreement was signed by her for looking after her land. He submitted that in such a case the onus of proof was on defendant, who has to prove that the gift deed was obtained by him lawfully and without practicing fraud and deception.
4. ' Mr. Muhammad Aziz Kiani, the learned Advocate appearing for the respondent argued that it was plaintiff who has alleged fraud and forgery with regard to the execution of the document, therefore, onus of proof was on her. The learned Advocate contended that plaintiff has not appeared personally and also not produced cogent evidence for proving fraud and forgery. The learned Advocate contended that both the Courts below have concurrently come to the conclusion that plaintiff remained failed to discharge the onus of proof, hence, concurrent findings cannot be disturbed in second appeal.
5. ' I have heard the learned Advocates for the parties and gone through the record of the case.
6. ' First, I would like to resolve the objection of the learned Advocate for the respondent that concurrent findings returned by both the Courts below cannot be upset in second appeal by this Court. Of course, it is settled principle of law that second appeal under section 100, C.P.C. Has to he filed on the question of law. The second appeal is competent where some misreading or non- reading of the evidence is shown. I am of the view that in the present case arguments advanced on behalf of the learned Advocate for the respondent has no substance and cannot be considered at all. Appellant, herein, is an illiterate lady and has alleged that gift-deed dated 06.08.1994 has been obtained from her by practicing fraud and deception because she has signed some other document. The onus of proof was on the defendant, he has to prove that the gift deed was obtained by him lawfully and execution of the same was in her knowledge as has been held in case titled Muhammad Zaman Khan v. Sher Afzal Khan and O8 others, [PLD 1984 SC (AJK) 138]. In para. 9 of the report it was observed as under:-- "Even otherwise, we are of the considered view that the onus has been wrongly placed on the appellant to prove that the document (will) is a forged one. The respondent claims to have acquired title to the suit land on the basis of a will which fact, in the suit, was repudiated by the appellant claiming that the will was forged one and, therefore, it was the respondent who was to prove that the will was executed by Muhammad Afzal Khan. The law is that those who rely on the will must show that the will was duly executed. Ordinarily, if there is no suggestion to the contrary any man who is shown to have executed a will, will be presumed to have done so, but the moment the execution is called in question the onus lies on those propounding the will to affirm positively the execution of the will. "
7. Moreover, it was enjoined upon the defendant to produce marginal witnesses of the gift-deed. At the time of execution of the gift-deed the donor/lady was identified by Jamal Din son of Sian Muhammad but this witness has not been produced by the defendant to prove the fact that it was Mst. Kamyan Bi who in fact appeared before the Sub Registrar at the time of the registration of document The marginal witnesses have also not been produced by the defendant nor stamp vendor and petition writer have been produced which was requirement of Article 17(2-A) of the Qanun-e-Shahadat Order, 1984. The same view was taken in case titled Muhammad Sarwar Khan v. Salamat All and 02 others, 2012 CLC 94 and PLD 2005 Lah.
654. It is also noticed that defendant has no blood relation with the appellant, therefore, execution of the document in the circumstances of the case is doubtful. It also reveals from perusal of gift deed that no clear cut intention of gifting the property is shown. Neither it is mentioned that what services have been rendered by donee towards donors because she has no blood relation with him. From perusal of the document, it reveals that the deed is lacking the necessary conditions and it appears to have been given without any consideration. In a case titled Khursheed Ahmed and 7 others v. Zeenat Begum and another, PLD 2003 AJ&K 25. In the similar circumstances, it was observed as under:-- "As the primary requirement for the gift was "a declaration of gift by the donor", therefore, the question arises, whether this requirement was fulfilled? The perusal of the record of trial Court shows that there is no evidence regarding the intention of the donor to declare the gift ' In the instant case, the gift deed did not contain as to why the gift deed was executed in favour of defendants (appellants). Whether the donees had rendered any service to the donor or there was no other such close relative and heir of the donor? No such reasons have been assigned in the gift deed. There is also no other evidence or reason as to why this land was gifted to the donees, in presence of wife and son of donor. It was the basic responsibility of the donees to prove that the donor had the intention to gift the property to them. If flabbergast me that as to what were the reason for which the donor had deprived his wife and son from the property and gifted the same to the defendants. It was also the responsibility of the donees to prove as such. Same like proposition arose before the Lahore High Court in a case titled "Noor Muhammad v. Karim Bibi", wherein a woman executed a gift deed of her property in favour of her brother and deprived her husband and four children."
8. ' Again in para 11 of the report, it was opined as under:-- "In the instant case, it has been clearly laid down that it was the first and foremost responsibility of donees to prove that the donor had any reason to execute the gift deed. Likewise, it was also the responsibility of the donees to prove that donor had the knowledge as to what he was doing and his intention was to make the gift and it was not the result of their influence. It would also not be out of place to mention here that in the aforesaid report, the gift was executed by a sister in favour of her brother. Her husband and children were deprived. It was held by the Court that there seems no justification and reason for the gift in favour of brother in the presence of husband and children.
9. While in the instant case, the donees have no such close relation with the donor for which, the preference could be given to them over the wife and son. In the instant case, it was the responsibility of the donees to prove that why this land was gifted to them. What was the reason behind it? It was the basic responsibility of the donees to prove that the gift was outcome of donor free will and not of their influence."
10. (Underlining is mine)
11. ' In PLD 1959 Lah. 932, in the similar circumstances, it was observed as under:-- "Here the respondent is admittedly and impecunious person. She has four children. She has given away the whole of the property which she inherited from her father, property which, considering her position in life, is very valuable to her. A brother with a proper sense of fairness and justice would not have accepted a gift in these circumstances at all, but, in any case, he should have asked her to consider the matter fully and to have independent advice before she took the step, for there was no good reason why she should deprive herself, her children and her husband of the benefit of this land."
12. In view of above, appeal is accepted and judgments and decrees passed by the Senior Civil Judge dated 07.12.2012 and that of District Judge dated 02.10.2013 are hereby set aside. The gift-deed dated 06.08.1994 is declared to have been executed by practicing fraud and deception, hence, the same stands cancelled. The plaintiff is entitled to the possession of the suit land. Defendant shall remove the improvement/construction at his own cost.