Brief facts, giving rise to the instant revision petition are as such that the respondent No.4/plaintiff instituted a suit for declaration to the effect that Muhammad Sharif son of Rakha, predecessor in interest of the respondent No.4/plaintiff, petitioner and respondent No.5, was owner of the suit property and he remained seriously ill for about five years before his death; that the family the respondent No.4 resides abroad so she has sound financial status, therefore, the respondent No.4 did not demand share of produce from the present petitioner. However, two months prior to institution of the suit, the respondent No.4 asked the petitioner/defendant that she wanted to sell her share out of the suit property and then petitioner/defendant told him that suit property was transferred in his favour against mutation No.107 dated 21.07.1980; that the deceased Muhammad Sharif neither gifted out the suit property to the petitioner/defendant nor appeared before any revenue officer, therefore, the mutation No.107 ibid was sought to be cancelled by decreeing the suit. The petitioner/ defendant and respondents No.5-D and 5-E contested the suit whereas the respondent No.5-B submitted consenting written statement. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court dismissed the suit vide judgment and decree dated 26.05.2023. The respondent No.4/plaintiff, being aggrieved preferred an appeal. The learned appellate Court vide impugned judgment and decree dated 18.03.2024 accepted the appeal, set aside the judgment and decree passed by the learned trial Court, consequent whereof decreed the suit of the respondent No.4/plaintiff; hence, the instant revision petition.
2. Heard.
3. The basic ingredients for a valid gift are: offer, acceptance and delivery of possession. See Bilal Hussain Shah and another v. Dilawar Shah (PLD 2018 Supreme Court 698) and Khalid Hussain and others v. Nazir Ahmad and others (2021 SCMR 1986). In the present case, paragraph No.V of the written statement deals with the alleged oral gift made by the deceased Muhammad Sharif in favour of petitioner/defendant. For ease of reference, the same is reproduced in verbatim as under:- {{URDU TEXT}} Bare reading of the above excerpt divulges that no description of making of offer and acceptance of the same by the deceased Muhammad Sharif has been given, which are necessary to be pleaded and proved, even the same have not been deposed during evidence either by the petitioner or his witnesses because a party cannot lead any evidence beyond its pleadings.
Reliance is placed on judgments reported Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Combined Investment (Pvt.) Limited v. Wali Bhai and others (PLD 2016 SC 730) and Saddaruddin (since deceased) through LRs. V. Sultan Khan (since deceased) through LRs and others (2021 SCMR 642), wherein it has been held that:- '............... the parties are required to lead evidence in consonance with their pleadings and that no evidence can be laid or looked into in support of a plea which has not been taken in the pleadings. A party, therefore, is required to plead facts necessary to seek relief claimed and to prove it through evidence of an unimpeachable character.'
Oral gift has two parts namely: the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift as noted above and secondly mutation on the basis of an oral gift has to be independently established and proved by adopting procedure provided in the Land Revenue Act, 1967 and the Rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e- Shahadat Order, 1984. The petitioner could not lead any cogent, strong, unimpeachable and confidence inspiring evidence with regards to first part of alleged oral gift. Reliance is placed on Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85).
4. The matter in hand pertains to inheritable property because admittedly the property in question was owned by Muhammad Sharif, so the petitioner being alleged donee was under heavy burden to prove valid execution of oral gift because he cannot take benefits from the shortcomings in the evidence of respondents rather he had to stand on his own legs as has been held in Mushtaq Ul Aarifin and others v. Mumtaz Muhammad and others (2022 SCMR 55) that:- 'As far as the contention of learned counsel for the respondents-plaintiffs that the appellants- defendants have not succeeded in proving their claim is concerned, it is a well settled principle of law that the plaintiffs cannot get benefit from the weaknesses of the defendants alone, rather they have to prove their case on their own strength. The initial burden of proof was upon the respondents-plaintiffs which they did not discharge, but the learned High Court has burdened the appellants-defendants for proving their stance which is not a correct approach.'
Moreover, in judgment reported as Mst. Parveen (deceased) through LRs. V. Muhammad Pervaiz and others (2022 SCMR 64), the Hon'ble Supreme Court of Pakistan has invariably held that: '...... On the death of a Muslim his/her property devolves upon his/her legal heirs. However, if any heir seeks to exclude the other legal heirs, as in the instant case by relying on a purported gift the beneficiary of such gift must prove it.'
The same view was also affirmed in Mst. Hayat Bibi and others v. Alamzeb and others (2022 SCMR 13).
Question of limitation has also rightly been responded to and addressed by the learned appellate Court because it is admitted position on record that the respondent No.4 and other legal heirs of deceased Muhammad Sharif lived abroad and she came to know about the alleged mutation two months prior to institution of the suit and even the matter is with regards to inheritable property, where-against the question of limitation does not arise.
5. Pursuant to the above, the learned appellate Court has not committed any material illegality and irregularity while passing the impugned judgment and decree rather vested jurisdiction has rightly been exercised while appreciating evidence on record and construing law on the subject in a judicious manner. Moreover, it is a settled principle, by now, that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.
Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).
6. As a sequel of above discussion and while placing reliance on the judgments supra, when there appears no illegality and irregularity as well as wrong exercise of jurisdiction, the revision petition in hand being without any force and substance, stands dismissed in limine.