SABIT ULLAH KHAN, J.- This civil revision filed u/s 115 of the Code of Civil Procedure, 1908 (C.P.C) is directed against the judgment and decree of the learned Additional District Judge, Swat at Kabal dated 06.04.2017, whereby their civil appeal against the judgment and decree of the learned Civil Judge-II, Swat at Kabal dated 30.05.2016 dismissing their suit, was dismissed while the Cross Objection No.02/11 of 2016 of the respondents/ defendants was partially allowed and accordingly findings of the learned trial Court to the extent of issue No.7 were set aside.
2. Brief facts giving rise to this petition are that the petitioners/ plaintiffs have filed a civil suit against the respondents/ defendants seeking declaration to the effect that they are owners of the disputed house, as described in the headnote of the plaint, being based upon the legacy of their father namely Bakhte Rawan, as such, the denial of the respondents/ defendants from their ownership along with possession of any document including sale or gift of the house would be ineffective upon their rights. They have asserted that the erstwhile owner of the house, namely Muzaffar Hussain had gifted his 1/2 share to their predecessor Bakhte Rawan due to his care and affection as he lived with Bakht Rawan until his death. The respondents/ defendants attended the trial Court and submitted a contested written statement denying therein the claim of the petitioners/ plaintiffs on different legal and factual objections. After framing of issues and recording of evidence, the learned trial Court vide its judgment and decree dated 30.05.2016 non- suited the petitioners/ plaintiffs. The petitioners, being aggrieved filed civil appeal while the respondents/ defendants filed cross objection under order XLI rule 22 C.P.C against findings rendered by the learned trial Court on issues No.3, 7 & 8. After consolidating both the matters and hearing the parties, the learned appellate Court dismissed the appeal of the petitioners while partially allowed the cross objection of the respondents/ defendants, as a result of which, the findings to the extent of only issue No.7 were reversed vide the impugned judgment and decree dated 06.04.2017, hence, this petition.
3. Arguments heard. Record perused.
4. The record would show that in para-No.4 of the plaint, the petitioners contend that the original owner of the house, namely Muzaffar Hussain, was an issueless person as he never married and mostly he resided with Bakht Rawan, the petitioners' father, who cared for him, hence, due to his love and affection with their father, said Muzaffar Hussain allegedly gifted his 1/2 share in the house along with possession to Bakht Rawan during his lifetime and after the death of Bakht Rawan, the petitioners claim their ownership on the basis of inheritance. The respondents/ defendants have denied this claim by asserting that Ahmad Jee alias Kakai was the common predecessor of both parties and the house originally had two rooms and it was partitioned through iqrarnama No.59 dated 15.08.1972 (Ex. DW1/2): 1/2 share was given to his son Muzaffar Hussain and Marwarai (the wife of Ahmad Jee) while the remaining 1/2 to Bakht Rawan, the predecessor in interest of the petitioners but subsequently, when another son namely Muhammad, raised a dispute before the then Extra Assistant Commissioner (EAC), it was resolved through compromise on 03.04.1984, affirming joint ownership of the house by Muzaffar Hussain and Bakht Rawan. Later, they partitioned the house vide iqrarnama dated 19.07.1987, after which, Bakht Rawan had sold his share to Jafar via deed No.352 dated 23.09.1991, who in turn sold it to Ali Khan, hence, the respondents claim that the petitioners have no legal right over the disputed house. It is notable that the respondents/ defendants did not dispute the relationship between the petitioners and Muzaffar Hussain rather it is an admitted fact that both the parties are the offsprings of a common predecessor but they have denied the alleged gift in favor of the predecessor in interest of the petitioners. Although a gift may be oral or written, however, the donee must prove offer, acceptance and delivery of possession of the gifted property. In the case in hand, the petitioners/ plaintiffs have failed to establish these essential elements through credible, direct and reliable evidence. In this regard, even the plaint of the petitioners lacks the specific details such as the date, time, and place of the alleged gift. The plaintiffs' own witness i.e., PW-2 namely Muhammad Akbar Hussain, has admitted during his cross examination that till the death of Muzaffar Hussain and Marwarai, the house remained as their ownership. It was also admitted by him that Muzaffar Hussain died after the death of Bakht Rawan, the petitioners' father. In addition to the above, there are contradictions qua the description of the house as the petitioners are claiming that it was consisting upon one room while PW-2 has admitted in his cross examination that it had two rooms; and although the plaint suggests Muzaffar Hussain died some 2/3 years prior to the institution of the suit, which was filed in the year 2014 while Bakht Rawan died in the year 2009, prior to the doner. PW-3 namely Bawar Khan stated the alleged oral gift has taken place in the year 2009, which is inconsistent to the claim of the petitioners. More-so, the petitioners could not produce any rent receipts to prove their possession after the alleged gift. In similar circumstances, the apex Court has held that such a gift is not proved in favor of the alleged donee. Reliance is placed on the case titled "Muhammad Srawar vs. Mumtaz Bibi and others" (2020 SCMR 276), wherein the apex Court has held that: "We have heard the learned counsel for the petitioner and examined the record with his assistance. At the very outset, we have noticed that the petitioner failed to mention the date, time and place, of the alleged gift. Further, he omitted to mention the names of witnesses in whose presence his father allegedly gifted the property in his favour and disinherited his sisters (Respondents). Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law. It is settled law that the onus to establish the factum and ingredients of the gift is on the beneficiary who claims such gift and which is denied or challenged by the other legal heirs."
In the case titled "Naveed Akram and others Vs. Muhammad Anwar" (2019 SCMR 1095), wherein the issue of oral gift was under resolution, the apex Court has held as under: "Neither the date of attestation nor the name or place when the oral gift was made could be established. No witness in whose presence the oral gift was made was examined. Mere fact that gift mutation was entered was insufficient to establish a valid gift. Gift and the resultant mutation needed to be independently proved. Mutations were undertaken under questionable circumstances which also involved tampering and antedating for which no plausible or legally sustainable explanation was forthcoming. In the present case, there was complete failure on the part of the petitioners to prove the oral gift through production of credible witnesses. Petition for leave to appeal was dismissed and leave was refused."
Similarly, the apex Court in the case of "Mst. Saadia vs. Mst. Gul Bibi" (2016 SCMR 662), has held that: "Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non- registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession".
Reliance may also be placed on the cases titled "Islam-ud-din throujih L.Rs and others vs. Mst.
Noor Jahan throw', L.Rs and others" (2016 SCMR 986), and "Peer Baksh through L.Rs and others vs. Mst. Khanzadi and others (2016 SCMR 1417).
5. It is also a settled principle of civil jurisprudence that the plaintiff must success on the strength of his own case rather than the weaknesses of the defendants whereas, the issue of framing or non- framing of particular issues, as alleged by learned counsel for the petitioners, has also been settled by the Apex Court that the same looses its significance after recording of the evidence as held in the cases of "Eada Khan Vs. Mst. Ghanwar and others" (2004 SCMR 1524) and "Airtiad Akratn Vs. Mst. Asiva Kausar and 02 others" (2015 SCMR 01).
6. Even otherwise, the respondents/defendants, in support of their stance, contended that the original owner (predecessor of the parties) namely Ahmad Jee alias Kakai, during his lifetime, had partitioned the suit house amongst his legal heirs vide deed No.59 dated 15.08.1972. Not only the said deed was tendered by the respondents during trial as Ex.DW1/2, but its relevant witness, i.e., the Record Keeper of Tehsil Kabal, was also produced by them before the Court as DW-7, whose deposition, confirming that the deed was correctly executed as per official record, could not be rebutted by the petitioners through any overwhelming or confidence-inspiring evidence. More-so, the contents of the deed were also in line with the pleadings and evidence of the respondents/ defendants. The decision of the Extra Assistant Commissioner (EAC) dated 03.04.1984, which has been relied upon by both parties in their respective pleadings, also supports the stance of the respondents/ defendants. It is noteworthy that the petitioners have not even mentioned the correct description of the house, which indicates that, as per the respondents' contention, the petitioners had already sold it. The subsequent sale deeds regarding the house were also duly proved by the respondents in accordance with law through the preponderance of evidence. Thus, the evidence produced by the petitioners does not support their cause especially when the respondents have successfully established on record in accordance with law the execution of more than a 30-year- old document regarding the partition of the property by their predecessor in interest in the year 1972 by producing an official witness (DW-7) who confirmed the relevant entry in the official record.
In a similar issue came before this Court in the case of "Muhammad Durwaish Vs. Ha/i Muhammad Hussain" (1999 CLC 106), this Court has held that: Thus, the question to be determined is whether Article 79 or 100 of the Qanun-e-Shahadat Order be applied to resolve the controversy between the parties. If the former is relevant, the burden would be on the defendants to prove the execution of the sale-deed No.171, notwithstanding its registration. If Article 100 aforesaid is found to be applicable, the burden to disprove the execution of the deed would shift to the plaintiffs. Under Article 100 of the Qanune-Shahadat Order presumption of correctness is attached to the signatures and contents of a thirty-years old document if produced from proper custody when a document fulfils requirements of Article 100, the person relying upon the document is not required to prove its execution unless the presumption is rebutted. Thus, the provisions of Article 79 of the Qanun-e-Shahadat Order would not come into play if the benefit of Article 100 is available to the defendants.
7. It is worth mentioning that the concurrent findings of both the learned Courts below are based upon the proper appreciation of evidence and appraisal of the documents appended with the record, which are not open to any interference by exercising he powers conferred upon this Court u/s 115 C.P.C, as the concurrent findings could only be set aside or interfered with if there is any illegality, misreading or non-reading of the evidence, which is not the case before this Court as neither the learned A.A.G representing the present petitioners nor the learned counsel representing the petitioners in rest of the petitions could be able to point out any illegality, irregularity or jurisdictional defect in the impugned concurrent findings. Reliance is placed on the case of "Muhammad Idress and others Vs Muhammad Pervaiz and others" (2010 SCMR 5), wherein it has been held by the apex Court that: "It is settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity."
Further reliance may also be placed on the cases of "Alamgir Khan through Legal Heirs and others vs Han Abdul Sittar Khan and others" (2009 SCMR 54) and "Moulvi Muhammad Azeem Vs. Alhaj Mehmood Khan Bangesh and another" (2010 SCMR 817). Thus, the impugned judgments and decrees require no interference from this Court.
8. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed, leaving the parties to bear their ow costs.