1. This appeal has been filed against the judgment and decree passed by learned District Judge Neelum dated 10.06.2014, whereby the appeal filed by the appellants herein against the judgment and decree recorded by Senior Civil Judge Athmuqaam dated 27.02.2013 has been dismissed.
2. Detailed facts necessary for the disposal of instant appeal are, Kala Khan and another, respondents herein, filed a suit for declaration cum perpetual injunction and cancellation of gift deed dated 02.12.1992 before Senior Civil Judge Athmuqam on 16.12.1992 against Mst. Samundra and others stated therein that land comprising khewat No. 29 min, 34 min, 35 min, 36 min and 37 min along with constructed houses and other rights measuring 4 kanal 19 marla was alienated to father of plaintiffs by Defendant No. 1 through oral gift, father of the plaintiffs remained in possession of the land and after the death of their father, plaintiffs remained as owners and in possession of the said land. Defendant No. 2 illegally and fraudulently executed gift deed dated 02.12.1992 regarding the same land in favour of Defendants No. 03 to 06 who are his real sons as attorney of Defendant No. 1. It is further averred that plaintiffs have made improvements of more than Rs. 300,000/-over the land being owners of the land. He solicited decree for declaration cum perpetual injunction and also prayed to cancel the gift deed dated 02.12.1992. The suit was contested by Defendants No. 2 to 6, 10 and 14 by filing written statement wherein it has been submitted that Defendant No. 2 was appointed as attorney for Defendant No. 1 for looking after and transfer of the land thus Defendant No. 2 as attorney has transferred the land in favour of Defendants No. 3 to 6 vide gift deed dated 02.12.1992 and Defendants No. 3 to 6 are in possession of land. It is further claimed that plaintiffs neither got any concern with the suit land nor any oral gift has been executed by Defendant No. 1 in favour of father of plaintiffs.
3. Another suit was filed by Fateh Ali, appellant herein, in the same Court regarding same land, wherein it has been solicited that the land mentioned in the plaint was in the ownership of the parties as co-sharers out of which the share of plaintiff is 27 kanal 7 marla which also includes 4 kanal 19 marla of gift property but plaintiff was in possession of only 13 kanal land while rest of his share measuring 14 kanal 7 marla was in possession of Defendants No. 1 to 8. It was further alleged that Ahmed Noor father of Defendants No. 1 to 8 has sold 18 kanals of land to Kaloo father of Defendants No. 34 to 42, therefore, the share of defendants in the suit land has left only to the extent of 4 kanal 18 marla thus, the plaintiff was entitled to get a decree for joint possession to the extent of his share. It is further averred that plaintiff as attorney of Defendant No: 17 has transferred 4 kanal 19 marla land to Defendants No. 22 to 25, his real sons, hence prayed a declaration that plaintiff and Defendants No. 22 to 25 are lawful owners of 27 kanal 7 marla land and also entitled to take possession of the same land from Defendants No. 1 to 9. The claim was refuted by defendants by filing written statement wherein the claim of the plaintiff has been denied on the ground that defendants are in the legal ownership and possession of the land since long by injected enormous improvements over the suit land.
4. The learned trial Court consolidated both the suits and framed seven issues in the light of pleadings of the parties. The parties were extended opportunity to lead evidence in support of their respective stand. On completion of codal proceedings, the learned trial Court vide its impugned judgment and decree dated 27.02.2013, decreed the suit filed by Kala Khan and another, respondents herein, but dismissed the counter suit filed by Fateh Ali, appellant herein for want of proof. Feeling dissatisfied, Fateh Ali Khan, appellant herein, preferred an appeal before the learned District judge Neelum on 10.04.2013. The learned District Judge after hearing the parties pro and contra, concurred with the findings recorded by the trial Court and appeal was shown the doors vide its impugned judgment and decree dated 10.06.2014, hence, the captioned second appeal.
5. The learned counsel for the appellants reiterated the grounds already taken in the pleadings strenuously argued that both the Courts below have skipped to ponder this preponderant scenario of the matter in hand that Mat. Samundra Begum appeared before the Court and requested to withdraw her admission on the ground that the same was obtained by deception. The learned Advocate further contended that Samundra Begum was an illiterate hillbilly lady, thus it was enjoined upon the Courts below to muse this outlook of the case but both the Courts below erroneously relied upon the resiled admission and decreed the suit filed by respondents herein, Kala Khan and another in flagrant violation of relevant law. The learned Advocate also claimed that a plea of joint possession was also claimed by the plaintiff/appellants but both the Courts below miserably failed to attend the said stance taken by the plaintiff/appellants. The learned Advocate further proceeded that impugned judgments of both the Courts below is an outcome of misreading and non-reading of oral as well documentary evidence thus reached at a wrong conclusion which is anomalous and not capable of being sustained hence the suit filed by plaintiff/appellants entails to be decreed.
6. Conversely, the learned counsel for the respondents defended the impugned judgment on all counts and submitted that appellants may move for partition of the land under Section 135 of the Land Revenue Act, and the relief sought by them for possession of the land could not be granted by the Civil Court as plaintiff/appellants are admitted as co-sharers and in possession of a portion of the land, thus, the Courts below rightly dismissed the suit filed by plaintiff/appellants. He further stated that gift deed dated 02.12.1992 was illegal for having been executed without obtaining special permission from the principal, hence, prayed for dismissal of the appeal.
7. I have heard the learned counsel for the parties and gone through the record of the case with utmost care and caution.
8. Moot points for decision in this case are Issues No. 2 and 3. So far Issue No. 3, whether gift deed dated 02.12.1992 is liable to be annulled, is concerned it is an admitted position that said deed was executed through attorney and donor of the gift deed was father of donees. Under law, an attorney cannot utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal particularly in a situation where principal is an uneducated lady as held in 2016 SCM R 1781 and 2016 SCR 830. In the present case, neither the general power of attorney contained any special and specific power conferring right upon attorney (Fateh Ali Khan), to transfer the suit property to his real sons nor witnesses were produced before the Court to substantiate that permission of the principal was obtained prior to alienating the suit property in favour of vendees, thus, the gift deed executed on 02.12.1992 without getting special permission from principal to transfer the land in shape of a gift deed in favour of sons of the attorney is not sustainable. In these circumstances, the Courts below rightly set aside the gift deed dated 02.12.1992.
9. Now; the question which emerges for resolution is whether the plaintiff Kala and another were entitled to get a decree on the basis of oral gift deed? This point hardly required any deliberation that if oral transaction is proved through tangible and concrete evidence suit can be decreed on the basis of oral transaction. It has to be determined by this Court that whether the oral gift on behalf of Samundra Begum has been amply proved or not? The plaintiffs specifically claimed in their suit that Mst. Samundra transferred 4 kanal 19 marla land through oral sale to the father of the plaintiffs. The witnesses produced by plaintiffs deposed in their statements that father of Samundra and father of plaintiffs were real brothers, at the time of death of her father, Samundra was six months old and she was taken care by her uncle, (father of the plaintiffs). The witnesses further deposed that the land of Samundra was in possession of Ahmed Noor, father of the plaintiffs, Samundra alienated the same to the father of the plaintiffs as a result of love and affection given by their father to Samundra during her childhood. The learned counsel for the defendants failed to shake the credibility and truthfulness of said witnesses during cross- examination to get even an iota of evidence in favour of the defendants. Furthermore, Samundra Begum appeared before the trial Court and admitted claim of the plaintiffs vide her admission dated 22.08.1993. No doubt, after passage of one year, Samundra Begum filed application to revoke her admission but the same was turned down by both the Courts below. A perusal of the record reveals that on filing admission, the statement of Samundra Begum was also recorded which is sufficient to hold that admission was made by Samundra Begum by her free will and sine any force, coercion or deception, thus, the Courts below have rightly refuted the application subsequently filed by her for withdrawal of her admission because once a party accepted the rights of other party, subsequently could not be allowed to turn around and deny it keeping in view the principle of estoppels and acquiescence. Reliance may be placed on 2007 SCM R 443, PLD 2011 Lahore 552. Thus, after admission of donor and in presence of supportive statements of the witnesses, the oral gift is justified to be decreed.
10. As per the contention of the learned counsel for the appellants that the Courts below should have decreed the suit to the extent of joint possession is concerned, the facts that plaintiff Fateh Mi Khan is a co-sharer in the suit land, joint property is still undivided by the revenue authorities and appellants are in possession of some portion of the land are admitted by both the parties, thus, the proper course for the appellants is to approach the revenue authorities for partition of the land in accordance with law because even after getting a decree of joint possession they have to approach the revenue authorities for its partition with metes and bounds, hence, it would be a futile exercise. A decree for joint possession can be claimed where despite lawful title of the land plaintiff is not in possession of any of portion of land, so the dismissal of suit to that extent by both the Courts below is just in line and nexus with law which entails no indulgence by this Court.
11. It may also pertinent to mention here that question regarding validity of oral gift or the execution of gift-deed dated 02.12.1992 are pure questions of facts and both the Courts below concurrently decided the same, thus, a second appeal without disclosure of any misreading, non-reading of evidence or glaring violation of any law, is not maintainable. The learned counsel for the appellants failed to point out any misreading or non-reading of evidence rather during course of arguments he mainly stressed on the point that a suit of the plaintiff/ appellants should at least decreed to the extent of joint possession and said argument of the learned counsel has been resolved and repelled herein above, so, on this score too, the appeal is liable to be dismissed.
12. The sum and substance of the above discussion is finding no essence; the captioned appeal is hereby dismissed.