Ali Akbar Qureshi, J:- This Regular Second Appeal is directed against the judgment and decree dated 22.08.2015 and 27.10.2010, passed by the learned Courts below , whereby the suit filed by the predecessor of the respondents was decreed whereas the suit filed by predecessor of the appellants was dismissed.
2. Mst. Sabiran Bibi, respondent/plaintiff, being real mother of the predecessor of the respondent namely, Muhammad Aslam, instituted a suit for declaration contending therein, that husband of the respondent namely, Ata Muhammad (predecessor-in-interest of the parties to the case) was owner of the suit land, after his demise, inheritance mutation No.6805 was attested in the name of the legal heirs namely, Muhammad Aslam (son), Muhammad Akram (son), Mst. Farzana (daughter) and Mst. Sabran Bibi (widow)
3. Muhammad Akram, real son of Mst. Sabiran Bibi and real daughter namely , Farzana Bibi, due to love and affection, gifted away their shares, measuring 52 Kanal 7-1/2 Marla in favour of their real mother Mst. Sabiran Bibi through gift deed No.7389 dated 17.07.1993; that Sabiran Bibi thereafter gave the total land to her sons namely , Muhammad Aslam (the predecessor of the appellants) and Muhammad Akram on Pata; that after some time, Muhammad Aslam deceased stopped to make the lease money and after inquiry , it came into the knowledge of Mst. Sabiran Bibi (respondent), that Muhammad Aslam, without her consent, has prepared a forged and fictitious Hiba Nama in his favour by obtaining thumb impression of Sabiran Bibi on blank paper; deceased Muhammad Aslam, predecessor of the appellants, also got signatures of Muhammad Akram, respondent No.2 as witness, on the pretext of getting prepared Zarai Passbook; to resolve the controversy , a Punchayat was held wherein Muhammad Aslam, predecessor of the appellants, admitted to have committed fraud by preparing forged and fictitious gift deed and also admitted before the Punchayat, that he has spent an amount of Rs.145,000/- on the development of the land and if Sabiran Bibi (his real mother) pays the said amoun t, he will transfer the land in her name. Thereafter , the predecessor of the appellants refused to cancel the Hiba Nama as agreed before the Punchayat, on the ground, that their sons were not ready . Lastly , it was prayed in the suit, that the Hiba Nama be declared illegal, unlawful and consequently Hiba Nama as well as mutation be cancelled and the possession be restored in favour of the respondent.
4. In response thereof, the predecess or of the appellants contested the suit through written statement, controverting the contents of the plaint and submitted, that he is the owner of the land in question on the basis of the gift deed which was executed by his mother with her free consent.
5. As per record, the predecessor of the appellants also filed a suit for recovery of possession against his real brother namely , Muhammad Akram, on the ground, that the land was given to him without any charges simply to cultivate the same.
6. The learned Trial Court, after completing all the legal and codal formalities, decreed the suit titled 'Mst. Sabiran Bibi vs. Muhammad Aslam etc.' and dismissed the suit titled 'Muhammad Aslam vs. Muhammad Akram etc.' through a consolidated judgment.
7. The appellants challenged the impugned judgment and decree of the learned Trial Court through an appeal wherein the learned Appellate Court maintained the judgment and decree passed by the learned Trial Court.
8. Heard. Record perused.
9. The controversy , which requires consid eration and adjudication, revolves around a gift deed allegedly executed by Mst. Sabiran Bibi, plaintif f (respondent herein) who is real mother of Muhammad Aslam, predecessor of the appellants.
10. Admittedly , the property in question was inherited by the parties to the case from the legacy of one Ata Muhammad, the predecessor-in-interest of the parties; the suit land was gifted to Mst. Sabiran Bibi by his real son and daughter through a registered docum ent and thereafter , Mst. Sabiran Bibi gave the suit land to her two sons namely , Muhammad Aslam and Muhammad Akram on lease.
11. Muhammad Aslam deceased, while filing the written statement claimed, that the property in question was gifted to him by his real mother namely , Sabira n Bibi through a registered Gift Deed No.8872 dated 29.08.1993, in the presence of the witnesses.
12. Firstly it is to be seen, as to whether Muhammad Aslam deceased could prove the execution of the gift deed by his mother Mst. Sabiran Bibi in accordance with law. Mst. Sabiran Bibi appeared alongwith her witnesses and stated, that to resolve the controversy, a Punchayat of the area was held, wherein Muhammad Aslam deceased admitted the fraud committed by him and finally agreed, that if the respondent, Mst. Sabiran Bibi, pays a certain amount, spent by Muhammad Aslam deceased on the development of the land, he would cancel the gift deed and would return the land to Mst. Sabiran Bibi. This fact was also supported by the witnesses of the respondent and particularly by P.W.3. So much so, Muhammad Aslam, the predecessor of the appellants, himself admitted while appearing in the witness box as D.W.1, that the Punchayat was held, wherein Siddique, Ghani (P.W.3), Younas and his mother Mst. Sabiran Bibi were present. Further deposed, that in the Punchayat, the matter regarding amount of Rs.145,000/- spent by him, was discussed but he refused to return the land.
13. There is another most important aspect of the case and to my mind, sufficient to decide the case against the appellants. The D.W .1 Muhammad Aslam, real son of Mst. Sabiran, stated the following words: {{URDU TEXT}} The predecessor of the appellants has himself stated about his mother the afore-noted words and unfortunately , the instant suit had to file by Mst. Sabiran Bibi, real mother of Muhammad Aslam deceased, who even according to the deceased Muhammad Aslam does not speak lie or commit any fraud. Meaning thereby , the contents of the suit filed by Mst. Sabiran Bibi are 100% correct which otherwise are supported by an af fidavit.
14. As regard the validity of the gift deed, the predecessor of the appellants, failed to produce the marginal witnesses and in case of their death, the secondary evidence as required by law. The predecessor of the appellants did not submit the list of witne sses giving the names of the marginal witnesses of the gift deed. Neither the scribe nor the stamp vendor appeared on behalf of the appellants. Mst. Sabir an Bibi admittedly is an illiterate and folk lady and no one accompanied her at the time of executing the alleged gift deed.
15. There is no evidence available on the file to prove the time, date and place and the names of the witnesses in whose presence, the offer was made by Mst. Sabiran Bibi and accepted by the predecessor of the appellants.
Therefore, the claim of the appellants is liable to be struck down on this single score alone. Reliance is placed on Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi (2013 SCMR 868), wherein the Hon'ble Supreme Court of Pakistan has ruled, that the legal protection provided to the Parda Nasheen lady is also available to an illiterate lady. The relevant esteemed paragraph is reproduced as under: "6. ....The contention that the general power of attorney was given by the respondent/ plaintiff not to a stranger but to her own son-in-law and that she was not a 'Pardanasheen Lady' for which the courts of law have provided protection is not tenable in the facts and circumstances of the instant case, first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerabl e. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation."
16. Learned counsel for the appellants repeatedly argued, that the land in question is in possession of the appellants since last many years in result of gift deed and the appellants have successfully proved the execution and registration of the gift deed.
17. The arguments advanced by learned counsel for the appellants have no substance in the presence of the afore- referred facts and circumstances of the case. The appellants have miserably failed to prove the case through any unimpeachable and convincing evidence. Even otherwise, there is hardly any reason to interfere with the well- worded concurrent findings of the learned Courts below. I am fortified by the judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).
18. Resultantly , this appeal has no force and the same is dismissed with cost of Rs.25,000/- (Rupees twenty five thousand only) which shall be paid to the respondents by the appellants.