' The trial Court decreed the suit of the plaintiff-respondent No,1 against the petitioner and that decision was affirmed by the appellate Court. This revision has, therefore, been filed to impeach the legality and accuracy of the said two decisions.
2. Ghulam Khan respondent No,1 sued his step-brother, the present petitioner, along with his two real uncles defendants-respondents Nos.2 and 3 and his mother and sister defendants- respondents Nos.4 and 5 respectively, for a declaration that he was a co-donee and as such a co- owner in possession along with defendants 1 to 3 in the two gift mutations Nos.585 and 586 both sanctioned on 9-4-1951 and that his name has inadvertently been omitted therefrom. .A prayer for permanent injunction dissuading the respondents Nos.1 to 3 from alienating any portion of the suit land was also made in the plaint. It was explained by the plaintiff that in the year 1951 when he was two years of age, his father Jehandad through mutation No,585 and his grand-father Alif Khan by mutation No,586 gifted the land in suit to the plaintiff and defendants Nos.1 to 3 jointly in equal share and as such as a co-sharer each one takes his due share from the benefits arising from the land in question. In view of the beginning of the new settlement of record of rights the plaintiff came to know that his name had not been recorded in the revenue record because in none of the gift mutations his name was incorporated as one of the donees. This suit was contested only by the present petitioner as the rest of the defendants in their joint written statement admitted the truth of the claim put forth in the plaint. In his written statement the petitioner controverted the factual position as alleged in the plaint and on legal plane described the suit as time-barred and incompetent in its present form.
3. At the trial Adam Khan Patwari appeared as P.W.1 who exhibited as Exh.P.W.1/1 to Exh.P.W.1/4 Jamabandis pertaining to the years from 1953-54 to 1961-62, Khasra Girdawari from Kharif 1969 to Kharif 1981' as Exh.P.W.1/5 and a report from daily diary regarding the mutation in question was also brought on record as Exh.P.W.1/6. Ghulam Khan plaintiff deposed as P.W.2 who beside supporting his claim in the plaint also stated that at the time of gift mutation he was two years of age and his mother is Roshan Jan while Mst. Rchmat Jan was the mother of defendant No,1. He also asserted his joint ownership and possession in pursuance of the gift mutations as a co-donee alongwith defendants Nos.1 to 3. P.W.3 Gohar Rehman corroborated the stand of the plaintiff and stated that at the time of gift plaintiff was two years of age and that plaintiff continues in occupation of the suit property as joint owner along with defendants Nos.1 to 3. As against this Sher Muhammad defendant No,1 while appearing for himself stated that the plaintiff was not a common donee with him and defendants 2 and 3 and that gift mutations have correctly been attested in his name and in the names of defendants 2 and 3 and he also denied the possession of the plaintiff over the suit property. Defendant No,3 Muhammad Aslam appeared in support of the written statement submitted by him along with defendants 2 to 5 and affirmed his admission as contained in the written statement.
4. The learned counsel pleading the cause of the petitioner submitted that he would not challenge the validity of the gift mutation on account of acceptance of gift or possession of the gifted property as these two essentials of gift would not derogate from its validity in this case because of the minority of the donee-plaintiff and because the gift being from father and grand-father. This is a candid and fair concession as under Muslim Law no transfer of possession or acceptance is required in case of a gift by a father to his minor child and the same is true of a gift by the grand- father in favour of his grand-son. However, the learned counsel criticized the effectiveness of the gift for want of declaration of the donor as the name of the plaintiff does not appear in the two gift mutations and he also described the evidence on record as lacking to prove this essential of gift.
He also criticized the approach of the learned lower Courts in respect of the evidence of defendant No,3 Muhammad Aslam, as according to him his admission of the right of the plaintiff is not of conclusive nature. The learned counsel who appeared for the respondents refuted the correctness of the argument addressed on behalf of the petitioner.
5. I studied the record in the light of the points agitated at the bar.
6. The petitioner concedes that the gift mutations are jointly and in equal share in his name and those of the defendants 2 and 3 and he also admits the joint possession of the said two co-donees on the suit land along with himself.In this state of record the admission made by defendants Nos.2 and 3 in the written statement and then supported by defendant No,3 in his Court statement will be the admission of the rights of the plaintiff by a person who had a subsisting proprietary interest in the subject-matter of the suit. It is established rule that when several persons are jointly interested in a certain property then the admission of any one of such persons would be receivable against himself and the other joint owners provided it relates to the subject-matter in dispute and is made by the declarant at a time when he retains his character of a person jointly interested. Such an admission would be only relevant but never conclusive unless it' amounts to estoppel but its evidentiary value lies in the fact that it raises a presumption that the fact admitted is true. Even under the provisions of Order 12, Rule 6 of the Civil Procedure Code the plaintiff could apply for a decree in his favour on the basis of the admission of his claim as contained in the written statement of defendants 2 to 5 and supported by defendant No,3 in his Court statement as the suit could have been decreed up to the extent of this admission and could have proceeded for determination of the rights of the contesting defendant. The declaration of gift by the donor is manifest through the mutation in which it is embodied and which is supported in case of the plaintiff by defendants 2 and 3 against their interest and which also finds strength from the fact that there was no reason whatsoever for the father and grand-father to deprive the plaintiff then a minor of two years when his mother had cordial relations with her husband and was residing along with the plaintiff with her husband. It is important to note that defendant No,1 had entered the report with the Patwari in `Roznamcha' regarding the gift covered by the two mutations on behalf of his father and grand-father and he being the step-brother purposely omitted the name of the plaintiff in the report because of his ulterior motive and hostile attitude which he exhibited by his conduct in this litigation. Moreover, the entire controversy to be determined in this revision revolves around solely on points of fact as it is requested herein to answer as to whether Jehandad gifted the property to his sons and brothers, and whether Alif Khan donated his property to his sons and grand-sons. These disputed points have been resolved by the two Courts unanimously and in absence of any complaint of misreading or non-reading of any material evidence on record such a conclusion cannot be interfered with in revision by this Court.
7. I find no merit in this revision and accordingly dismiss it with costs.