NAZEER AHMED LANGOVE, J.---This petition is directed against the judgment and decree dated 14th June, 2010, passed by Majlis-e-Shoora, Mastung, whereby; the appeal filed by Shahzada Agha Mahmood Khan (predecessor-in-interest of respondents Nos.1 to 5) has been accepted and the judgment and decree dated 31st December , 2009 passed by Qazi Kalat has been set aside. Hence, the instant petition with the following prayer: "It is, therefore, requested that the judgment and decree dated 14-06-2010 passed by the, learned Majlis-e-Shoora, Mastung in Appeal No.27/2010 may kindly be set aside and the Judgment and Decree dated 31-12-2009 passed by learned Qazi Kalat, in Civil Suit No.31/2009 be restored and maintained in the interest of law and justice."
2. Facts of the case are that plaintif f Shahzada Agha Mahmood Khan (predecessor-in-interest of respondents Nos.1 to 5) filed a suit for declaration, perpetual injunction and cancellation of revenue entries in the revenue record with averments that the grandfather of plaintif f namely Shahzada Abdul Kareem Khan gifted him a portion of land situated in Mouza Kohing Kalat, Tehsil Kalat measuring nine acres vide gift deed dated 2nd December , 1984 and since then he has continuously been in possession of the same. It was alleg ed that a portion of above said land has been entered on the name of Government and Frontier Corps, against which the instant suit was filed with the following prayer:-- {{URDU TEXT}}
3. On service of notices, petitioners (defendants) filed their written statement wherein they raised certain legal objections in respect of maintainability of the suit and contested the same on merits as well.
4. Out of pleadings of the parties, following issues were framed: {{URDU TEXT}}
5. After framing issues, the parties exhausted their respective sides.
6. The trial court/Qazi Kalat after hearing the parties and evaluating the evidence dismissed the suit vide judgment and decree dated 31st December , 2009, assailed in appeal, which finally was allowed, whereby suit filed by the plaintif f (predecessor-in-interest of respo ndents Nos.1 to 5) was decreed, vide judgment and decree dated 14th June, 2010 passed by Majlis-e-Shoora Mastung, hence; this petition with the prayer mentioned herein-above.
7. It is pertinent to note here that the instant petition was filed on 1st September , 2010. Despite publication, the private respondents Nos.1 to 5 did not appear , as such, they were proceeded against ex parte.
8. Heard the learned Additional Advoca te General for petitioners and learned Assistant Attorney General for respondent No.6 and gone through the record; perusal whereof, shows that the very suit filed by the plaintif f (respondents Nos.1 to 5) was not maintainable on the ground of non-joinder of necessary parties as the Secretary , Board of Revenue Balochistan has not been arrayed as party . A part from that ingredients sine qua non for Hibba , were not available to the plaintif f which are: (1) offer, (2) acceptance, and (3) delivery of physical possession. But, no physical possession has ever been transferred to the plaintif f, meaning thereby that the very gift was defective in nature and not enforceable under the law. In this respect "Principle of Muhammadan Law" by D.F. Mulla, para. 138, is relevant which reads as under: "Hiba or gift-- A hiba or, gift is "a transfer of property , made immediately , and without any exchange, by one person to another , and accepted by or on behalf of the latter ."
It is further elaborated in section 149, which provides that, it is essential to the validity of a gift that there should be:
(1) a declaration of gift by the donor; (2) an acceptance of the gift, express or implied, by or on the behalf of the donee; and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section
150. If these conditions are complied with the gift is complete. In view of the above mentioned mandate of law, there are three essential conditions for a valid gift; immediate transfer of property , without any exchange and accepted on behalf of the donee. It is further clarified in the latter part of section, wherein, the conditions expressly given are:-
(1) of fer;
(2) acceptance; and
(3) delivery of possession.
If any of the conditions is found as missing, then it cannot be termed as a valid gift.
Another damaging factor brought on record was that Shahzada Abdul Kareem Khan claimed to have gifted the aforesaid property to the plaintif f reported to have expired in the year 1983, while the alleged gift deed was of 1984; such an objection raised by the petitioners should have been answered properly , but not. Reliance in this behalf is placed on a case titled Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others (2008 SCMR 1384 ).
Relevant observation therefrom is as under: "11. ...There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view is supported by the dictum laid down in the cases of Gopal Das and others v. Sri Thakurji and others AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633. In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee; contents of gift-deed and constituents of gift must be proved in consonance with the provisions of "Qanun-e-Shahadat" and rules of gifts under Muhammadan Law ."
9. Legally the entire property cannot be gifted to a person by the donor , he is authorized to give only one third (1/3rd) of the entire property , therefore, on this count as well, the alleged gift deed was not enforceable.
10. Apart from this, gift deed relied upon by the plaintif f did not disclose correct description of the property-in- dispute, which during the settlement held in the year 1969-70, had been recorded on the name of Government, but not challenged timely . The instant suit was filed after lapse of about thirty-five years, which was barred by time. In this respect, reliance is placed on the judgment of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153 ), wherein, the Hon'ble Supreme Court of Pakistan observed as under: "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement of the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority , and a detailed discussion of the same is not necessary , to lay down that limitation being a matter of statute and the provisions being mandatory , it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad. 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant autho rity in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up against by the parties waiving them or by the Courts themselves."
Further reliance in the behalf is placed on a case titled Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others (2017 CLC [Balochistan] 646 ). Relevant observation therefrom is as under: "12. ...Section 3 of the Limitation Act provides that every suit instituted after the period of limitation shall, subject to the provisions of Limitation Act irrespective of the fact that limitation has not been pleaded as defence. If it appears from the plaint that the suit is barred by limitation, the plaint is to be rejected under Order VII, Rule 11, C.P.C. without resorting to evidence or framing any issue."
11. In the instant case, the suit filed in the year 2009 to challenge the mutation entries of 1969-70 was barred by time. It has time and again held by the Hon'ble Supreme Court of Pakistan that any aggrieved person has to pursue his legal remedy with diligence and if a suit filed beyond limitation, each day delay is to be explained. In the instant case, no explanation was given even without specifying the date of knowledge of the impugned mutations. In Muhammad Raz. Khan v. Government of N.W.F.P and another (PLD 1997 SC 397), the Hon'ble Supreme Court of Pakistan observed as under: "It is undoubtedly imperative for aggrie ved party to pursue legal remedies with utmost diligence and satisfy conscious of the Court or quasi-judicial authority for approaching respective forum s beyond prescribed limitation, even if objections to that effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmed and others ) and PLD 1993 SC 147 (Province of Punjab and others v. Muhammad Hussain and others ). Thus, aggrieved person seeking redress has legal obligation to justify each day's delay for launching proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts. However , reference may be made to judgments reported in (i) PLD 1996 SC 292 (Ali Muhammad and others v. Muhammad Shafi and others ), (ii)
PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930 (Muhammad Feroze Khan v. Khalique Dad Khan and 28 others ), (iv) PLD 1982 SC (AJ&K) 13 Khadim Hussain Khan v. The State )."
12. The judgment passed by Majlis-e-Shoora, Mastung does not contain findings on each and every issue, which is required under Order XX, Rule 5, C.P .C, which reads as under: "5. Court to state its decision on each issue.---In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor , upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
13. While on the other-hand, learned Qazi Kalat passed a well-reasoned and speaking judgment and decree, based on correct appraisal of the evidence and relevant provisions of law. As such, there was no occasion for the appellate court to reverse the findings of trial court on invalid and non-convincing grounds. Even on reappraisal of evidence, this Court is of the opinion that the findings arrived by the trial court were in consonance with the record, evidence and relevant provisions of law , should not have been interfered with by the appellate forum.
14. In view of what has been discussed above, the petition filed by the petitioners is allowed and the judgment and decree dated 14th June, 2010 passed by Majlis-e-Shoora, Mastung is set aside. Consequently , the judgment and decree dated 31st December , 2009 passed by Qazi, Kalat is up-held. Parties are left to hear their own costs.