' These two appeals have been filed against the judgment and decree of the District Judge, Mirpur, dated November 26, 1994, whereby appeals filed against the judgment and decree passed by the Sub-Judge, Dadyal on January 29, 1994, were dismissed a common order. As the common question of law and facts are involved therein, as such these are disposed of by this single order.
2. The facts giving rise to the present appeals are that a suit for declaration to set aside the gift- deed executed by Mst. Ghulam Bi and Mst. Sahib Bi, daughters of Sharaf Din, on November 23, 1987 in favour of Muhammad Iqbal, respondent herein, was filed in the Court of Sub-Judge, Dadyal, on November 14, 1988 by Muhammad Sarwar and others. Mutation No,3007 attested on its basis on February 25, 1988, was also challenged. It was also claimed that the land measuring 112 Kanals 18 Marlas comprising Survey Nos.4371, 4373, 4383, 4385, 4387, 4390, 4384, 4401, 4419, 4420, 4427, 4372, 4379, 4380, 4386, 4418, 4388, 4421 and 4422, Khewat No,88, Khatas Nos.437 and 438, situate in village Khirrari, Tehsil Dadyal, District Mirpur, was in possession of plaintiffs and pro forma- respondents, Abdul Rehman and others (deleted from the proceedings). The gift-deed was challenged on the ground of same being executed in excess of share of the donors, without possession and also illegally on the following additional grounds as well:---
(i) That Khewat No,88 was comprised of 112 Kanals 18 Marlas, whereas the total acreage was shown as 108 Kanals 8 Marlas in the gift-deed;
(ii) that the total acreage of Survey No,4380 was one Kanal 6 Marlas but the same was shown in the gift-deed as 15 Kanals 6 Marlas;
(iii) that Survey Nos.4386, 4380 and 4384 have not been included in the gift-deed;
(iv) that the gift-deed was executed for the land measuring 21 Kanals, whereas the total share of the donors comes to 18 Kanals 2 Marlas.
3. Another suit for correction of the gift-deed executed by defendant, Mst. Ghulam Bi and Mst. Sahib Bi, in favour of Muhammad Iqbal, was also filed by him, in the Court of Sub-Judge, Dadyal, on March 18, 1989. Both the suits were consolidated. Various issues arising out of the pleadings of the parties were framed. The parties led their evidence in support of their respective claims. The trial Court, after hearing them, dismissed the suit of Muhammad Sarwar and others, filed for declaration, to set aside the gift-deed while the suit filed by Muhammad Iqbal for correction of the gift-deed was decreed. The two appeals filed against the above order were dismissed by the learned District Judge, Mirpur. Hence these two appeals.
4. Kh. Ali Muhammad, the learned counsel for the appellants, raised the following points in support of the appeals:---
(i) That the gift-deed made by Mst. Ghulam Bi, defendant-respondent and Mst. Sahib Bi, in favour of Muhammad Iqbal, respondent, was illegal as the same was executed without possession. It was explained that the possession of the suit land was with the plaintiff-appellants;
(ii) that the gift-deed was executed in excess of the share of the donors. The share of the donors was claimed to be 18 Kanals 2 Marlas, whereas the gift-deed was executed for 21 Kanals;
(iii) that the total acreage of the Khewat from which the gift-deed was executed, was 112 Kanals 18 Marlas, whereas the same was shown as 108 Kanals 8 Marlas in the gift-deed. Survey No,4380 of the above Khewat comprised of one Kanal 6 Marlas, whereas the same was shown as 15 Kanals 6 Marlas. The learned counsel also argued that Survey Nos.4386,4380 and 4384 of the aforesaid Khewat, were not mentioned in the gift-deed; and
(iv) that the suits were illegally consolidated and their consolidated trial was illegal. It was emphasised that the suit filed for the correction of the gift-deed had nothing to do with the suit filed by Muhammad Sarwar and others, plaintiffs, for cancellation of the gift-deed, as such in any case, the suits could not be consolidated. Therefore, the suits were tried illegally by the trial Court and the fact was ignored by the District Judge in appeal.
5. On the other hand, Raja Muhammad Siddique Khan, the learned counsel for the opposite side, controverting the arguments advanced by the learned counsel for the appellants, addressed the following arguments:-
(i) That the gift-deed executed by Mst. Ghulam Bi, defendant-respondent and Mst. Sahib Bi, in favour of Muhammad Iqbal, respondent, was within their share. The learned counsel referred to the revenue record including the statement of Patwari supporting his claim, produced by the plaintiff- appellants;
(ii) that the donors were shareholders with Muhammad Sarwar and others, plaintiff-appellants who executed the gift-deed of their entire share, as such the point raised with regard to the wrong mentioning of total acreage of or omitting some of the survey numbers in the gift-deed, did not merit any consideration;
(iii) that the appellants' point with regard to non-delivery of possession by the donors to the done, has no substance in law as a co-sharer cannot challenge a gift-deed in his own right. It is the donor or the heir claiming through him who has a locus standi to challenge the gift-deed on the basis of want of possession; and
(iv) that in view of the facts involved, the suit filed by the plaintiff-appellants, Muhammad Sarwar and others and the other filed for correction of gift-deed, were consolidated. The grievance of the appellants with regard to the consolidation of suits, carries no substance in the circumstances when they have failed to disclose as to how their rights have been damaged.
6. I have heard the learned counsel for the parties and also gone through the record. The plaintiffs, Muhammad Sarwar and others produced Muhammad Yunus, Patwari, Qurban Hussain and Muhammad Arif, one of the plaintiffs appeared as witness, in addition to the revenue record, copy of the Jamabandi for the year 1967-68, Exh. PA, in support of their claim. The respondents, in support of their claim, brought the evidence of Mst. Ghulam Bi, Muhammad Sajawal and Muhammad Iqbal, one of the defendants, on record, including the gift-deed Exh. DA. A perusal of the record shows that it is not disputed between the parties that the total acreage of the Khewat is 112 Kanals 18 Marlas and the parties are shareholders According to the Jamabandi, Exh. PA and the statement of the Patwari witness, produced by the plaintiffs, the disputed gift-deed was executed within the share of the donors. Both the Courts below, on the basis of evidence, arrived at the conclusion that the gift-deed was executed within share. After a careful consideration, it is found that the plaintiffs have failed to substantiate the claim with regard to execution of gift-deed in excess of the share, apart from the fact that the concurrent findings of facts by the Courts below cannot be assailed on the question of fact in second appeal. Reliance may also be placed on the case titled "Shah Alam and others v. Hay. Muhammad Nawaz and 5 others" (PLD 1981 SC (AJ&K) 124, wherein it was observed:--- "It would thus appear that unless some procedural defect, such as non-reading of evidence, misreading of evidence or travesty of the finding is not established, a finding of fact cannot be allowed to be discharged by the High Court. In the instant case no such defect could not be noticed."
' The proposition also came under consideration in the case titled Salah Muhammad Khan v.
Hassan Muhammad Khan (1981 CLC 353), wherein it was laid down:--- "A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread or the finding is based on surmises and conjectures. Erroneous finding of fact, however, inexcusable it may be, cannot be disturbed in second appeal unless there is some 'defect in the procedure' causing error in the decision of the case on the merits. Mr. Justice Munir with whom we concur on the point in Nadir Shah v. Lal Shah (PLD 1954 Lah. 447) after referring to the leading authorities of the Privy Council on this subject, came to the conclusion that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits."
7. It was next contended by the learned counsel for the plaintiff-appellants that the possession of the suit land was with them and was not transferred to the done as such the gift-deed was invalid.
It was agitated that unless the donor parts with physical possession of the subject of gift and puts the done in actual physical possession thereof, a very essential condition of delivery of possession remains unfulfilled.
8. As a broad principle, it may be stated that if a donor is himself in actual physical possession of the corpus, the delivery of possession would normally require actually putting the donee in physical possession thereof. But there may be cases where the possession is not with the donor himself or where the done is already in possession jointly or severally with the donor or where the donee is a minor and the donor is minor's guardian, it would not be necessary for the completion of a valid gift under the Mahomedan Law to put the-donee in actual physical possession of the gifted property.
In such cases, if the donor does all that he could do to divest himself of the ownership and domain over the property, a gift will be complete and valid. In these cases though the donor does not put the donee in actual physical possession of the corpus, but by doing all that he could do in this respect, he places the donee in a position to take the possession and this fact per se will be taken as delivery of possession without the necessity of handing over physical possession. A donor or an heir claiming through him (and not against him) has the locus standi to challenge the gift-deed for want of delivery of possession but when a presumptive heir challenges the gift on the basis of non-delivery of possession in exercise of his independent right, he could have no locus standi to challenge the gift on this score as this challenge is not through the donor but in spite of and against him. Reference may be made to the case of titled "Safi Ullah v. Ghulam Jabbar and 4 others" PLD 1955 Lahore 191 wherein the Division Bench consisting of Mr. Justice B.Z. Kaikaus and Mr. Justice Akhlaque Hussain, held: "--A declaration by a donor regarding the delivery of the gifted property made solemnly, intelligently and freely, is irrevocably binding on him and those who may claim the property through him in disregard of his gift.
' The true doctrine of the Muslim Law relating to gifts does not require either that only a particular kind of possession be given; or that possession can be given only in certain specified ways.
' What is really required by Muslim Law is that there should be satisifactory evidence that the donor did in fact part with possession of the subject-matter of his gift either physically or constructively."
' The proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in the case titled 'Saida v. Punnu and another' PLD 1979 SC (AJ&K) 245, wherein it was observed:--- "--Gift--Delivery of Khas possession not possible--Donor doing all he could do to perfect contemplated gift by placing donee in a position to take possession of subject property--Such gift by a co-sharer to a third person without delivery of actual possession--Held, valid." --Gift--Donor pleading total deprivation of his interest in property--Gift without delivery of possession--Held, can only be impeached by a donor and not a third person and a person claiming hostile possession against donor and donee."
' Reliance may also be placed on the case titled Rehm Ali and others v. Abdul and 3 others 1980 CLC 1110. The relevant observation is reproduced:--- "A donor or an heir claiming through him and not against him has the locus standi to challenges the gift-deed for want of delivery of possession. But where a presumptive heir challenge the gift on the basis of non-delivery of possession in exercise of his independent right, as for instance, being in adverse possession, he would have no locus standi to challenge the gift on this score as this challenge is not through the donor but in spite of and against him."
' Therefore, the point raised by the learned counsel for the plaintiff-appellants with regard to non- delivery of possession carries no substance and the objection with regard to the invalidity of the gift-deed stands repelled in the circumstances.
9. A stress was laid on behalf of the appellants' counsel that both the Courts below failed in error in granting decree for correction of the gift-deed in the circumstances pointed out by the learned counsel during his arguments. The emphasis was also laid on the consolidation of the suits. It may not be out of place to mention that the correction of gift-deed was sought in respect of matters which were simply formal in nature and particularly in the circumstances when the suit for correction of gift-deed was admitted by the opposite side, the donors or the parties claiming through them. Even otherwise, the above correction sought relates to inclusion of some of the survey numbers in the gift-deed and correction of total acreage of the Khewat from which the gift- deed was executed. As the total share from the Khewat was gifted away by the donors within their share, as discussed above, therefore, the above correction sought was necessary and advanced the interest of justice. The consolidation of the suits, in the circumstances, was all the more necessary in the interest of the parties. The learned counsel failed to disclose any grievance arising out of the consolidation of the suits which might have caused any damage to his rights of the plaintiff-appellants. Therefore, even if it is found that the suits could not be consolidated, no right, whatsoever, appears to be affected by it.
10. In view of the above discussion, the appeals are found to have no substance in them which are hereby dismissed with costs.