MUHAMMAD ALAM, J.---Petitioners have challenged order dated 30.03.2015 of the District Judge Hunza/ Nagar, passed in C.F.A. No,17/2014, whereby, the learned First Appellate Court has set aside judgment/ order dated 27-06-2012 of the Civil Judge First Class Nagar, passed in Civil Suit No,26/2009.
2. Parties to the case contested Civil Suit Nos, 26/2009, 187/2003 in the trial court of Civil Judge First Class Nagar. In the plaint of suit, respondent/plaintiff averred that he is entitled to 1/3rd of the suit land as the suit land was bound to be partitioned in equal shares between mother of respondent and mother of petitioners Nos,1 and 2. Respondent has further prayed for possession of his share of suit lands, alleging that possession of petitioners on the suit land is forcible. In plaint of the suit, respondent specifically averred that common landed property of mothers of the above described parties devolved on them from their maternal grandfather, therefore, suit land remained in common possession of mothers of above described parties as their exclusive property. After giving birth to the respondent, his mother passed away and respondent was brought up by different ladies. The suit property went in possession of mother of petitioners Nos,1 and 2, who did not return the same to the respondent when he obtained the age of majority and demanded its possession.
Hence the suit. Petitioners contested the suit and filed their written statement on 30-05-2005. Para No,2 of parawise written statement is very important because petitioners have set up their defense in the said para. Petitioners have very specifically averred that Mst. Najaf Gul, mother of respondent, gave her shari share in her properties to her sister Mst. Fiza, through a written gift deed. So happened in the life time of Mst. Najaf Gul, mother of the respondent. Through Civil Misc.
No,45/2016, petitioners have sought amendment in the written statement, whereby, wanted to introduce a very conflicting plea to that of the defense taken up in para No,2 of parawise written statement. Through my today's order, I have dismissed the said petition.
3. Learned trial court framed issues and completed all trial proceedings entailing to the judgment/order dated 27-06-2012. The operative part of the same goes as under:-- Issue No,10: "Nothing is on record which proves that any Jirga give decision in favour of Plaintiff This issue decided against Plaintiff Keeping in view my .above findings suit of Plaintiff is dismissed with cost. File be consigned to record after completion."
Announced: sd/xxx 27.06.2012 Civil Judge 1st Class Nagar On appeal (C.F.A. No,17/2014), the learned District Judge passed the following order:-- 22."Result of the foregoing is that appeal is accepted and consequently the judgment/ decree dated 27.06.2012 passed by the learned Civil Judge, 1st Class, Nagar in Civil Suit No,26/09 is set aside and a decree to the extent of 2/5th share in the suit property is granted in favour of the appellant/plaintiff and against the defendants/respondents 1 and 2. He is entitled to get possession thereof from the defendants 1 and 2. Parties are however left to bear their respective costs."
23.Announced 30.03.2015 sd/xxx District and Sessions Judge, Hunza/Nagar
4. I have gone through the file and have heard learned counsel for parties. First of all, I am taking up some admitted state of affairs between parties. It is not disputed that suit property is or was ownership of Mst. Najaf Gul, who is real mother of respondent. In my opinion, once it is admitted that suit land is or was ownership of real mother of respondent/ plaintiff, the petitioners were duty bound to prove that the same came in their possession as a result of a valid gift as they have averred in para No,2 of parawise written statement. Burden of proof shifted to petitioners in the light of averments of para No,2 of parawise written statement. It is very important to note that learned counsel for petitioners frankly conceded that burden of proof has shifted to the petitioners. So, the sole, question for determination is whether there is sufficient evidence in proof of the alleged transfer of suit property to the petitioners through a valid gift?
5. I, therefore, take up the evidence of petitioners in proof of transfer of the suit property to them is in the light of said gift. Learned trial court has marked the gift deed as Exh.D/A. Learned counsel for petitioners argued that the gift (Exh.D/A) is an old document, therefore, cannot be challenged in any court in the light of Article 100 of Qanun-e-Shahadat Order. On the other hand, learned counsel for respondent argued that the alleged gift deed (Exh.D/A) is never a gift deed even in its form.
6. I have gone through Exh.D/A, wherein, the word hibbah has not been used. Exh.D/A is written in Persian and is a private document. Petitioners were legally bound to prove the said document in strict accordance with the relevant provisions of Qanun-e-Shahadat Order, governing proof of private documents. I have noted that Exh.D/A contains names of the marginal witnesses thereto as well as the name of scribe of the same, but neither contains any signature of the marginal witnesses thereto nor contains any signature of the scribe. Article 79 read with Article 17(2) of A Qanun-e-Shahadat Order governs the procedure of proof of a document similar to that of Exh.D/A.
In case of non-availability of witnesses to a document, proviso to Article 71 of Qanun-e-Shahadat Order attracts. Petitioners did not adduce any evidence in light of said provisions of law, therefore, badly failed to prove Exh.D/A. Petitioners have produced two DWs, DW-1 and DW-2 in proof of the contents of Exh.D/A. DW-1 has given his statement with reference to what he heard from his father Qurban. But Mr. Qurban is not a marginal witness to Exh.D/A as the said document does not contain name of the said Qurban. DW-2 has given a false statement as to age of Mr. Sultan, a marginal witness to Exh.D/A. It is very clear from statement of DW-2 that age of said Sultan was 70 years in the year 1999 A.D. as well as in the year 1420 Hijri. Learned counsel for petitioners failed to convince the court that the same position is possible in the attending circumstances.
7. In these circumstances, I am of the view that the impugned judgment/decree of District Judge is not result of any C misreading of evidence, nor the said court committed any other material irregularity in coming to the conclusion reflected in the impugned judgment/decree dated 30.03.2016, passed in C.F.A. No,17/2014. I, therefore, hold that this petition merits dismissal. Petition dismissed. This file be consigned to record.