' This is an appeal from a judgment and decree of Mr. Muhammad Zafrullah, District Judge, Sargodha, dated 11th May, 1967, affirming a judgment and decree of Ch. Ihsanul Haq Bhalli, Civil Judge, Sargodha dated 22nd July, 1966, granting the declaration that the respondents had prayed for in their suit.
2. The parties to this appeal are all brothers and sisters. A mutation of gift No, 504 was attested on 29th September, 1969, showing that the father of the parties hereto had gifted the suit land to the appellant. The three respondents filed a suit against the appellant, praying for a declaration to. The effect that the respondents and the appellant herein were owners of 128-3/4 Kanals of land, the details of which were given in the plaint, as heirs of their father Sardara deceased, and that the alleged gift made through mutation No, 504 dated 29th September, 1970, in favour of the appellant, was ineffective and inoperative against the rights of the respondents and that the so-called gift was also opposed to custom, and the mutation was based on fraud and misrepresentation.
3. It was alleged by the respondents that Sardara deceased had never gifted the land to the appellant, and that the mutation had been entered as a result of collusion and fraud. It was also alleged that Sardara deceased had in fact filed an appeal against the order of sanctioning of the mutation, but the same had failed, and that the possession of the suit land had never been delivered to the appellant. It was also alleged that in any case the suit land was ancestral, and had been inherited by Sardara under the Customary Law, and as such he could not gift the same to the appellant.
4. The appellant contested the suit, contending that the gift was legal and valid. However the appellant's counsel made a statement before issues on 4th September, 1962, admitting the Sardara had died in the year 1961, that he had inherited the suit land from his father before 1947 ; that he was governed by custom before the promulgation of the Shariat Act, but under the custom that was applicable, Sardara could alienate the property.
5. The following issues were framed by the learned Civil Judge :-
(1) Whether Sardara inherited the suit land from his father.
(2) Whether under the custom which governed Sardara in the matter of alienation of the land, he had now power to make the gift.
(3) Whether Sardara made the gift.
(4) If issue No, 3 is proved, whether the gift, was not completed by delivery of possession of property and on this account is invalid.
(5) If issue No, 3 is proved, whether the appeal filed by Sardara constituted revocation of gift. If so whether the revocation has lawfully been made.
(6) Whether the plaintiffs, particularly plaintiffs Nos. 2 and 3, have no locus standi in bringing this suit.
(7) Whether the gift, if proved, was made with the consent of the plaintiff, if so whether on this account, they are estopped from bringing this suit.
(8) Whether the plaintiffs are in possession of the land and on this account the suit is maintainable in its present form.
(9) Relief.
6. The trial Court found that the suit land was ancestral except for an area measuring 9i kanals that under the custom that had been followed by the family of the parties, a gift could not be made to an heir so as to deprive other heirs of their share altogether, and since the alleged gift was in respect of the entire property of Sardara, it had been made in excess of his powers : that actually Sardara had not made any gift at all ; that even if any such gift had been made, it had not been completed by delivery of possession ; that the respondents had locus standi to institute the suit ; that the consent of the respondents to the alleged gift was not proved ; and that the form of suit was not defective because one of the respondents was in cultivating possession of the land. On these findings the suit was decreed.
7. On appeal the learned District Judge found that Sardara had not made any gift in favour of the appellant, and that even physical possession had never been delivered to him. In view of this finding the learned Judge did not feel the necessity of discussing other issues,, but he made an observation to the effect that except for 9k Kanals of the land, the remaining property was ancestral, which the appellant's counsel had himself admitted to be so, and it could therefore not be gifted to the appellant.
8. It is submitted on behalf of the appellant that the property was actually not ancestral, and that the appellant was not bound by the statement of his counsel. This assertion is of no. Consequence, because the Courts below have concurrently found that no gift at all had been made, and even the possession of the land had not been delivered to the appellant under the so-called gift.
9. In any case the statement before issue made by the counsel for the appellant was finding on the appellant. Appearing as D. W. 3, the appellant had also stated that the property in dispute was ancestral, having been inherited by his father from the appellant's grandfather. He then corrected himself to say that some of the land was also self-acquired. The trial Court had also found from evidence that except for 91 kanals, the property was ancestral. There is neither any reason no necessity to differ with this finding, because no exception can be taken to the concurrent finding of fact arrived at by the Courts below that n valid gift had been made to the appellant. There is therefore no force in this appeal which accordingly is dismissed with costs.