SHAHID BILAL HASSAN-J: Tersely, the present petitioner instituted a suit for declaration with consequential relief against the respondents contending therein that he was owner of land measuring 53-Kanals 16-Marlas vide register record of rights for the year 2010-11 situated at Mauza Wadhoon Tehsil Nowshera Virkan, District Gujranwala; that the petitioner used to cultivate the above said land; that the date of birth of the petitioner is 01.01.1936 and he being 80 years of age has been suffering from various diseases including loss of mind; that the respondent No.2 is real daughter of the petitioner and respondent No.3 is his son in law; that the respondent No.3 in connivance with the respondent No.2 and officials of revenue department illegally and unlawfully got executed gift deed No.399 dated 11.04.2013 and subsequent mutation No.647 was attested on 18.06.2013; that the petitioner time and again asked the respondents to get cancelled the said gift deed and mutation but they refused; hence, the suit. The suit was contested by the respondents No.2 and 3, whereas the respondent No.1 was proceeded against ex parte. Divergence in pleadings of the parties was summed up into issues by the learned trial Court and evidence of the parties, oral as well as documentary, was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 05.04.2022 dismissed suit of the petitioner. Being dissatisfied, the petitioner preferred an appeal but result remained the same vide impugned judgment and decree dated 17.05.2022; hence, the instant revision petition challenging the vires and legality of the impugned judgments and decrees passed by the learned Courts below.
2. Heard.
3. Article 117 of the Qanun-e-Shahadat Order, 1984 provides that:- '117. Burden of proof: (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.'
In the present case, the petitioner pleaded and took a stance that diseases including loss of mind, so he was under bounden duty in view of the above provision of law to prove the same by producing cogent, trustworthy and confidence inspiring evidence but nothing in the shape of medical prescriptions or medical history was brought on record by him. In this view of the matter, the learned Courts below have rightly concluded that the present petitioner has failed to prove his stance with regards to suffering from various diseases including loss of mind/ memory loss, especially when a week prior to the attestation of the disputed gift deed Ex.P1/Ex.D2, the present petitioner also executed a gift deed No.377 dated 04.04.2013 Ex.D1 in favour of his son Rizwan Asad; therefore, it can safely be concluded that the petitioner was hale and healthy at the time of executing of disputed gift deed in favour of the respondent No.2. In this regard reliance is placed on Khalid Hussain v. Nazir Ahmad (2021 SCMR 1986), wherein the Apex Court of the country has held that when a party took a plea and desires the Court to pronounce judgment as to his legal right dependent on the existence of facts which he asserted, then the onus to prove those facts laid on him. Moreover, mere assertion of fraud and misrepresentation is not sufficient rather the same has to be proved by leading confidence inspiring evidence. Reliance is placed on Ghulam Ghaus v.
Muhammad Yasin (2009 SCMR 70) as has been referred and relied upon by the learned appellate Court. As such, the petitioner has not proved that the respondents No.2 and 3 have committed fraud with him by taking benefit of his purported illness/mind of loss, especially when the petitioner travelled beyond his pleadings and during cross examination denied his signature and thumb impressions over the gift deed Ex.P1, which otherwise were pleaded to have been obtained fraudulently.
4. As against this, the respondent No.2 by appearing in the witness box as D.W.2 has categorically deposed that the petitioner offered her to gift the suit property, which was accepted by her and thereafter possession was delivered to her. The gift deed Ex.P1 was executed by the petitioner in her favour in presence of marginal witnesses and identifier. The respondent No.2 also produced marginal witnesses Rizwan Asad (D.W.1) (who otherwise will be beneficiary if the disputed gift deed is cancelled and set aside), Atta Ullah (D.W.3) who fully supported her stance. Muhammad Razzaq D.W.6 identified the petitioner at the time of registration of the disputed gift deed, who categorically deposed that at that time the petitioner was hale and healthy. Besides, the respondent No.2 produced Sub-Registrar Javed Sarwar, who was an independent witness and deposed in favour of the respondent No.2. Moreover, Patwari Halqa Khurshid Ahmad D.W.5 has also deposed in favour of the respondent No.2 and stated that Asad Ullah appeared before him for issuance of Fard Malkiyat, he chalked out Rapt No.434 dated 18.04.2013 Ex.D3 and issued Fard. In this view of the matter, the respondent No.2 successfully proved her case on the touchstone of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. The ratio of judgments reported as Sikandar Hayat v. Sughran Bibi (2020 SCMR 214), Taj Muhammad v. Mst. Munawar Jan (2009 SCMR 598) and Khalid Ahmad v. Abdul Jabbar (2005 SCMR 911), on this point has rightly been appreciated by the learned appellate Court.
Besides, the fact of delivery of possession has also been established that the same is with the respondent No.2 since the execution of the gift deed Ex.P1 in her favour. Even otherwise, when a donor gifts out property in favour of his near and dear ones, constructive possession is transferred even without physical possession. Moreover, presently the respondent No.2 is in possession of the disputed property. The petitioner could not lead evidence as to how and in what capacity the respondent No.2 is in possession if the possession was not delivered to her, because it is not stance of the petitioner that possession of the disputed property was snatched by respondent No.2.
5. In addition to the above, the question with regards to limitation has also rightly been adjudicated upon because it is bounden duty of the learned trial Court to firstly decide the question of jurisdiction and limitation, even if the same is not pleaded by the rival party, as per section 3 of the Limitation Act, 1908. The suit was instituted after about four years of disputed gift deed No.399 dated 11.04.2013, which is badly barred by limitation because Article 91 of the Limitation Act, 1908 provides that such suit can be instituted within three years when the fact entitling the plaintiff to have the instrument cancelled or set aside becomes known to him. In this case, the disputed gift deed was a registered document and being a public document the same is considered a notice to the public at large including the present petitioner. Even otherwise, it is settled law that when a Court reaches to a conclusion that the suit is barred by limitation, there is no need to discuss further merits of the case, but the learned Courts below even then have pondered upon and discussed evidence in a minute manner and have reached to a just conclusion.
6. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioner/ plaintiff has miserably failed to prove his case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity, rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst.
Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), CANTONMENT BOARD through Executive Officer, Cantt. Board Rawalpindi v. IKHLAQ AHMED and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that :- 'There is a difference between the misreading, non-reading and mis-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:- 'Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.'
7. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed. No order as to the costs.