' This revision petition is directed against judgment, dated 11-5-1992 passed by the learned Additional District Judge, Toba Tek Singh through which the appeal filed by respondent No,1 against judgment and decree, dated 10-4-1991 passed by learned trial Court through which suit filed by the said respondent for declaration with consequential relief regarding his claim of ownership over 1/3rd portion of property in dispute i.e. Ihata/House No,1347 was dismissed, has been accepted and the said suit decreed. It is an admitted fact that both petitioner and respondent No,1 are real brothers whereas respondent No,2 is their father.
2. The property in dispute was transferred to respondent No,2 by the Settlement Department. He gifted this property to the petitioner through registered gift-deed. Respondent No,1 feeling aggrieved filed suit for declaration that he was the owner of the said house to the extent of 1/3rd portion in his possession because the same had already been gifted to him by respondent No,2 as such the registered deed executed in favour of petitioner for gifting the entire property was ineffective against his rights of ownership in the 1/3rd share of the house.
3. The gift made in favour of respondent No,1 was alleged to be oral. Learned trial Court after recording evidence held that the registered gift deed executed in favour of the petitioner by respondent No,2 regarding the entire property was valid and he has become owner thereof and the gift in favour of respondent No,1 as alleged regarding 1/3rd share prior to the execution of the said gift deed had not been established. The suit was dismissed through judgment and decree, dated 10-4-1991.
4. Respondent No,1 assailed this judgment and decree in appeal before the learned lower appellate Court. The learned lower appellate Court after examining evidence produced by the parties came to the conclusion that the factum of gift of 1/3rd share in the said property prior to the execution of the impugned registered gift deed stood established through evidence therefore the suit of the respondent No,1 was decreed to the extent of 1/3rd share on acceptance of appeal and setting aside the trial Court's judgment and decree through judgment, dated 11-5-1992 which is under challenge in this revision petition.
5. I have gone through the evidence of P.W.1 Munir Hussain Shah and P.W.2 Sohail Saqib, exmined by respondent No,1 in support of his case regarding oral gift of 1/3rd share of the property as also his own statement when he appeared as P.W.3. P.W.1 has stated that the respondent No,2 gifted 1/3rd share after partitioning the same to respondent No,1 of which possession was also delivered to him.
He stated that it was given to him by way of gift who constructed two rooms over the same and had been residing there as owner thereof. He also stated that the respondent No,1/plaintiff and defendants were residing separately for the last 5/6 years, Similar is the evidence of Sohail Saqib P.W.2. It was admitted fact that respondent No,1 was in possession of the said portion which admission is spelt out from the evidence of the witness produced by the petitioner himself.
Petitioner and respondent No,2 were present in person today. When questioned petitioner admitted that the said 1/3rd portion of the house was separated by a wall from the other portion and the possession of the same was not delivered to the petitioner at the time of execution of impugned registered gift-deed as it was with the respondent No,1 and uptil now he is in possession.
6. I have also noticed from the record about which documentary evidence has been produced that respondent No,2 filed a declaratory suit against the petitioner in which he alleged that the impugned gift deed was got executed by the petitioner through misrepresentation and fraud and he never gifted the property to him. The said suit was withdrawn by respondent No,2 because the petitioner gave an undertaking that he would pay an amount of Rs,300 p.m. to him and would also allow him to live in the house as a father. The copy of the plaint of the said suit has been produced in evidence as Exh.P.2.
7. It may be significantly observed here that respondent No,2 the donor/original owner entered appearance in the suit, contested it by filing written-statement alongwith the petitioner in which he denied the averments made by respondent No,1 in the plaint that the portion of property in dispute had been gifted to him, but he did not appear as witness to deny this averment on oath. The non- appearance of respondent No,2 who was the only proper person to say about this fact was very material and adverse inference can safely be raised that he could not ' deny the said fact as such is denial in the written statement was of no consequence as according to settled law pleadings are not the evidence in the case and the case has to be decided on the basis of evidence led by the parties in support of the averments made in the pleadings to establish their truthfulness.
6. After going through the evidence, I am satisfied that evidence of P.W.1 and P.W.2 has fully established the fact that gift of 1/3rd portion of the house in dispute had already been made in favour of respondent No,1 by respondent No,2 of which possession had also been delivered as such he had become owner thereof prior to execution of impugned registered gift deed in favour of the petitioner therefore, this gift in favour of the petitioner was valid only to the extent of remaining 2/3rd share of which possession was delivered to him. The possession of other 1/3rd share which was in possession of respondent No,1 was never delivered to the petitioner. On that account too, the gift of the said portion through registered gift deed executed in his favour was not valid.
7. The learned lower appellate Court while recording finding of fact in favour of respondent No,1 has not been shown to have committed any material irregularity and illegality such as misreading, misconstruction or non-reading of any material piece of evidence which finding after examining the record, I too, endorse, therefore, the revision petition has no merits which is dismissed with no order as to costs.