Rasaal Hasan Syed, J. This civil revision stems from judgment and decree dated 04.3.2008 of learned Addl. District Judge, Mianwali Camp at Isa Khel whereby appeal of respondents against the judgment and decree dated 12.12.2006 was partially allowed and findings of the court below on issues No.3, 9 and 11 were partially reversed and the suit was partly decreed.
2. Respondents/plaintiffs instituted a suit for declaration claiming that they were owners of land measuring 05 kanals 11 marlas and that the petitioner/defendant No.1 had no concern with the property and that the alleged gift deed bearing document No. 483/01 dated 14.9.1977 was against law and facts, based on fraud and liable to be set aside and that the petitioner/defendant No.1 be restrained from interfering in the peaceful possession of respondents/plaintiffs and that they may be asked to admit the plaintiffs/respondents as owners and that the impugned gift deed was based on fraud. Petitioner filed contesting written statement controverted the allegations, raised certain preliminary objections. Issues were framed, evidence was recorded and, thereafter, the learned Civil Judge dismissed the suit of the plaintiffs/respondents vide judgment and decree dated 12.12.2006. Appeal filed by the respondents was partly allowed, findings on issues No. 3, 9 and 11 were partially reversed and suit was partially decreed to the effect that the contesting defendant and his legal heirs would remain in possession of the suit property till partition and his share in the suit property would be liable to be adjusted during the partition proceedings if found in excess of share of donee. This was vide judgment and decree dated 04.3.2008 of learned Addl. District Judge, Mianwali Camp at Isa Khel, which is impugned in this revision petition.
3. Heard.
4. Main argument raised by learned counsel to challenge the impugned judgment is that the suit was not maintainable as the respondents incorrectly alleged to be in possession of the property and the objection to the gift was on account of non-delivery of possession which was found against the respondents, the court should have dismissed the suit on account of the fact that they had not asked for possession and that the court committed illegality in allowing the respondents to amend the plaint. It was argued that the appellate court instead of dismissing the suit incorrectly allowed the appeal. It was added that the appellate court observed that the gift was valid to the extent of the ownership of donor and not beyond that and that the donee shall retain possession till the partition in case during partition the donee is found to be in excess of share the same should be returned. It was argued that this view could not sustain as the onus for this was on the other side which was never discharged and if this was the view at all then there was no need to make any observation as it was beyond the mandate of the appellate court, rather the proper course thereof was to leave it for the court dealing with the partition proceedings to determine as to how much was the title of donor which was validly transferred to the donee.
5. Submissions made by learned counsel have been given due consideration, documents available on the file inclusive of the findings of court below have been examined. It is evident therefrom that the respondents/plaintiffs filed a suit for declaration that they were owners of land measuring 05 kanals 11 marlas as described in the plaint and that the petitioner/defendant No.1 had no concern with the suit property and that the gift deed No.483/01 dated 14.9.1977 was against law and facts based on fraud and liable to be set aside and that the petitioner be restrained from interfering in the possession of respondents/plaintiffs and that they be asked to admit the respondents as owner and the impugned gift deed to be based on fraud. Suit was contested by the petitioner/defendants by raising legal and factual objections in the written statement including that the respondents had no cause of action or locus standi and they had not come to the court with clean hands and that the suit was false and gift deed was lawfully executed. On completion of trial the learned Civil Judge dismissed the suit vide judgment and decree dated 12.12.2006. In appeal the learned Addl. District Judge took all the objections which were raised in appeal and decided those objections one by one. As to the validity or otherwise of the impugned gift dated 14.9.1977 it was observed that basically suit for declaration and permanent injunction was filed by asserting to be in possession of the property but relief of recovery of possession was added by an amendment after framing of issues without framing of any additional issue.
6. While considering the effect of possession with the petitioner it was observed that the plea of invalidity of gift due to non-delivery of possession was not available with the plaintiffs/respondents to challenge the factum of gift by simply taking a stance that possession was forcibly taken from them subsequently which could not be proved. Taking into consideration the entire evidence on record, the learned Addl. District Judge observed that execution of gift was proved by two marginal witnesses DW-3 and DW-6, registration of gift deed was proved by DW-4 and DW-5; original gift deed was produced as Ex.D-1 and that the discrepancies and contradictions pointed out were not fatal for the proof of gift deed. After finding that the gift deed was genuinely executed and its execution was proved, the learned Addl. District Judge observed that the main concern of the other side appears to be excess of share and not against the gift itself. As to the excessive alienation of share in the gift deed, the learned Addl. District Judge took note of entire material evidence and recorded the findings in para 7(b) of the judgment as under: "b. 2nd point for determination is about alienation in excess of her share by the donor which is deemed to be the main concern of the plaintiffs. It is claimed by the plaintiffs that the donor was the co-owner of the suit property measuring 5 Kanals 11-Marlas to the extent of 8/9 Marlas only being one of three childless widows of the original owner in presence of a real brother having 1/3 share out of 1/4 share, but alienated the suit property measuring 1- 1/2 Kanals through the impugned gift deed. A perusal of the copy of impugned gift-deed Ex.P-2/ Ex.D-1 shows that the share of two widows of the original owner is described as 3-Kanals with the recital about prior alienation of the share of third widow by mentioning the remaining share of the two widows including that of the donor jointly with another widow as 3-Kanals. It means that the total share of three widows in the residential portion of the estate left by the deceased husband was presumed by the donor to be 4-1/2 Kanals having share of 1-1/2 Kanals of each of the three widows while the area of the suit property according to the version of the plaintiffs is 5-1/2 Kanals. A local commissioner was appointed by the learned trial court to ascertain the suit property whose report is on the file but the learned local commissioner was not asked to determine the total area of the suit property and the report is limited to the possession of the contesting defendant over the gifted portion. It is admitted fact that other residential and constructed portion of the inheritance of the predecessor of the parties namely Nawab Fazal-ur-Rehman Khan situated adjacent to the suit property is still un-partitioned. It is therefore observed that the plaintiffs have failed to prove the exact entitlement of Mst. Ghulam Fatima Bibi donor but the fact remains that even the donee has not proved the exact entitlement. Modification is therefore required in the findings of the learned trial court about excess transfer and the findings are accordingly modified to the effect that issue No.9 is to be partially answered in favour of the plaintiffs to the effect that if at the time of the partition of the suit property any excess share is found in possession of the donee then the same would be liable to be adjusted by suggesting an appropriate mode of partition if so moved to be made by either party. Findings on the issue about Relief are also deemed to have been modified accordingly."
7. The findings recorded by learned Addl. District Judge do not suffer from any misreading and non-reading of evidence or any error of law or jurisdiction nor any material misreading or non- reading of evidence could be pointed out. It is a settled rule that one cannot transfer the title in the property in excess of his share and rights therein and therefore, the view taken by the appellate court is not open to any exception. The objection of the petitioner's counsel that the gift having been challenged on the ground of non-existence due to allegation of fraud which having not been proved, the court below could not grant a relief as granted; it is a settled rule that the court shall grant a relief to which the party is entitled, no matter if it was not specifically asked for it. Reference can be made to Samar Gul v. Central Government and others (PLD 1986 SC 35) where it was observed to the effect that the court is empowered to grant such relief as justice of case may demand and for determining relief asked for, whole of the plaint must be looked into so that substance rather than form should be examined.
8. As regards the plea that the plaintiffs having not claimed possession and alleged to be in possession which could not be proved and it should not have been allowed to amend the plaint rather his suit should have been dismissed, the argument is misconceived and is untenable. The objection appears to have been raised in the light of proviso to section 42 of Specific Relief Act. The point raised is without substance. In the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) it was observed that in a declaratory suit if plaintiff is able to seek further relief, suit could not fail merely by the reason of fact that the consequential relief by way of possession was not claimed and that the court in such case should allow plaintiff to amend the plaint by adding "prayer for possession" and paying appropriate court fee thereon and granting relief even though he had not specifically asked for it. In view of the rule supra the objection raised is declined.
9. As upshot of the above this revision petition is devoid of any merit which is dismissed.