M. TABASSAM AFTAB ALVI, C.J.---The captioned appeal has been directed against the impugned judgment and decree passed by the learned Additional District Judge, Muzaffarabad, dated 23.12.2008, whereby, judgment and decree recorded by the learned Senior Civil Judge, Authmuqam, dated 12.10.2004, were set -aside.
2. Precise facts culminating into filing of the instant appeal are that Muhammad Aslam respondent-plaintiff, filed a suit for declaration-cumpossession and cancellation of gift-deed dated 18.04.1995, against Muhammad Farooq and others appellants-defendants, in the Court of Senior Civil Judge, Authamuqam, on 09.07.1997. It was averred that land comprising Khewat No.15 measuring 10 Kanals 6 marlas situated at Village Authmuqam, was in possession of uncle of respondent-plaintiff namely Jalal, whose whereabouts were not known. It was contended that land in dispute was in possession of appellants-defendants, which was mutated in their names through mutation dated 05.10.1994, against which, appellants-defendants filed an appeal before Board of Revenue, which was dismissed through order dated 24.07.1995. However, before the said period, appellants-defendants procured a fictitious gift deed dated 18.04.1995, against which, Muhammad Aslam, respondent-plaintiff filed the aforesaid suit. The suit was refuted by appellants-defendants through written statement, wherein, it was pleaded that plaintiff had no cause of action who did not invoke jurisdiction of the Court with clean hands. It was averred that in lieu of the gifted land respondent-plaintiff received Rs.12000/- in cash and one kanal land, hence, appellants-donees were owners in possession of the suit land. It was maintained that appellants-defendants made huge improvements upon the disputed land in shape of houses and planting fruit trees. It was submitted that gift-deed dated 18.04.1995, was executed and attested as per free consent of respondent-plaintiff and he himself remained instrumental in the entire proceedings. The other contents of suit were also refuted. The learned trial Court after framing issues, recording evidence of both the parties and hearing, dismissed the suit for want of proof vide judgment and decree dated 12.10.2004. Feeling dissatisfied from the aforesaid judgment and decree, Muhammad Aslam, respondent-plaintiff, filed an appeal before the learned District Judge, Muzaffarabad, which was made over to Additional District Judge, Muzaffarabad, on 28.05.2008. The learned Additional District Judge, after hearing, accepted appeal and set-aside judgment and decree of trial Court, supra, through the impugned judgment and decree dated 23.12.2008, hence, the instant second regular appeal.
3. Raja Jahangir Akram Khan, the learned counsel for appellants confined his arguments on issue No.8 and submitted that his clients proved their case by producing marginal witnesses before trial Court, however, the learned Additional District Judge, failed to appreciate documentary and oral evidence in its true perspective. He emphasized that respondent-plaintiff himself produced copy of gift deed dated 18.04.1995, which was certified, however, this aspect of matter was not considered by first Appellate Court. The learned counsel craved that while setting aside the impugned judgment and decree dated 23.12.2008, judgment and decree passed by trial Court dated 12.10.2004, may be restored.
4. Mir Sharafat Hussain, the learned counsel for respondent, also addressed his arguments on the aforesaid vital issue No.8, who defended the impugned judgment and decree with full force. He contended that while passing the impugned judgment and decree, the learned Additional District Judge, rightly came to conclusion that appellants failed to bring on record original gift deed dated 18.04.1995. He pressed into service that the aforesaid gift deed was a forged and fabricate document that is why appellants failed to place the same on record. He further argued that as matter regarding land in dispute was sub-judice in Board of Revenue, hence, gift deed was attracted by principle of lis pendens. The learned counsel submitted that no any illegality or irregularity was committed by first Appellate Court, hence, craved for dismissal of appeal. In support of his submissions, the learned counsel placed reliance on the following case law:-- i) Inayat Ali Shah v. Anwar Hussain, (1995 CLC 1906). ii) Abdul Aziz v. Mst. Jantay Bibi, (1999 CLC 1505). iii). Mst. Gul Bibi and another v. Mst. Saiida Bibi, (2000 CLC 399). iv) Chief Engineer Hydel (North) and Project Director WAPDA WARSAK v. Zafrullah Shah and another, (2003 SCM R 686).
5. I have perused the contents of appeal, examined the record made available with utmost care and have given my dispassionate thought to the points raised by the learned counsel for parties.
6. A contemplate perusal of file reveals that Muhammad Aslam, respondent-plaintiff filed a suit for declaration-cum-possession and cancellation of registered gift-deed dated 18.04.1995, pertaining to disputed land against appellants-defendants in the Court of Senior Civil Judge, Authamuqam, on 09.07.1997. The suit was resisted by appellants-defendants through written statement, wherein, they refuted the contents of suit. The learned trial Court after framing issues, recording evidence of both the parties and hearing, dismissed the suit for want of proof vide judgment and decree dated 12.10.2004. Feeling dissatisfied from the aforesaid judgment and decree, Muhammad Aslam, respondent-plaintiff, filed an appeal before the learned District Judge, Muzaffarabad, which was made over to the learned Additional District Judge, on 28.05.2008. The learned Additional District Judge, after hearing, accepted appeal and set-aside judgment and decree of trial Court through the impugned judgment and decree dated 23.12.2008. The respondent-plaintiff in support of his claim produced Ali Akbar and Muhammad Younas, as witnesses and also got recorded his statement. However, in order to prove gift deed dated 18.04.1995, Exh."PC", appellants-defendants produced marginal witness viz Ahsan Sheikh, witness of identification of donor, Kh. Abdul Samad, and one of defendants also got recorded his statement. The marginal witness Ahsan Sheikh, deposed that gift deed Exh."PC", was executed in year 1995, in his presence and he also signed on the said deed. In cross-examination, he also stated that besides him Kh. Abdul Samad, an identification witness of donor and Afsar Mir, were also present at the time of execution of the aforesaid deed, however, Afsar Mir died. Likewise, witness Kh. Abdul Samad, also testified the aforesaid gift deed and deposed the same was executed in his presence and respondent-plaintiff and appellants-donees were present at the time of execution of the said deed who signed the same. The execution of gift deed Exh."PC", was, therefore, proved by appellants donees.
7. A perusal of record reveals that appellants-defendants also constructed residential houses and their possession was categorically admitted in suit by respondent-plaintiff. The ' witness Muhammad Younas, produced by respondent-plaintiff in his cross-examination also admitted possession and improvement made by appellants-defendants. The learned counsel for respondent-plaintiff failed to refer any other piece of evidence from record, which might have not been considered by the trial Court.
8. The contention of the learned counsel for respondent-plaintiff that appellants-defendants failed to bring on record original gift deed dated 18.04.1995, however, the learned trial Court, failed to consider this aspect of matter is misconceived. The certified copy of gift deed dated 18.04.1995, was produced by respondent-plaintiff himself before the trial Court in evidence, which was- exhibited as "PC" and the same was considered by the said Court as per law.
9. The contention of the learned counsel for respondent-plaintiff that principle of lis-pendens is attracted in the given case is also baseless. As per section 52 of the Transfer of Property Act, 1882, during pendency in any Court of any suit or proceedings, which is not collusive, and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. As per section 2 of the aforesaid Act, nothing in the second Chapter of the Act, shall be deemed to affect any rule of Muhammadan Law.
Section 52 occurs in Chapter II of the Transfer of Property Act, 1882. It is clear, therefore, that if there is a rule of Muhammadan Law on the point under discussion, then the principle embodied in section 52 of the Transfer of Property Act, cannot be invoked. Section 167 of the Mulla's Muhammadan Law deals with the subject of revocation of gifts. Subsection (1) is to the effect that a gift may be revoked by donor at any time before delivery of possession. The reason for this rule being that before delivery there is no complete gift at all. The possession of suit land was admittedly with appellants-donees since decades. Therefore, in the present case, the rule of lis- pendens is not attracted.
10. The appellants-defendants proved their case by producing marginal witnesses before the trial Court, hence, judgment and decree recorded by first Appellate Court are not maintainable as such.
11. The authorities referred to and relied upon by the learned counsel for respondent-plaintiff are distinguishable and having no nexus with the instant case.
12. The crux of above discussion is that by accepting the instant appeal, the impugned judgment and decree passed by the learned Additional District Judge, Muzaffarabad, dated 23.12.2008, are hereby set-aside and judgment and decree recorded by the learned Senior Civil Judge, Authmuqam, dated 12.10.2004, are restored. The costs shall follow the eventuality.