' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been filed against the judgment and decree passed by the High Court on April 24, 1995, whereby on acceptance of appeal filed by respondents, herein, the judgment and decree recorded by Additional District Judge, Pallandri, were vacated and the order passed by Sub-Judge, Pallandri, was maintained.
2. The precise facts of the case are that Fazal Hussain, the appellant, herein, filed a declaratory suit in the Court of Sub-Judge, Pallandri, on January 21, 1981, claiming therein that Muhammad Afsar Khan, his uncle who was issueless, transferred his whole land through an oral gift in favour of plaintiff and in the land comprising Survey No,1227, measuring 15 Kanals and 6 Marlas in his presence got built a house for plaintiff who was in possession of the same as he was properly looking after the well being of Muhammad Afsar Khan during his lifetime and had been providing him the maintenance. On his death all the necessary expenses were borne by him. On December 6, 1978, when the plaintiff was out of the country and Muhammad Afsar Khan, due to illness was admitted in the hospital, the defendant, Abdul Qayyum, got executed in his favour whole land of Muhammad Afsar Khan situate in village DharDrach, Tehsil Sudnooti, through a gift-deed and Mutation No,1399, of the same was also sanctioned in his favour. The gift-deed was got executed when the donor Muhammad Afsar Khan was on the death-bed. The factum of gift was kept secret and only on death of Muhammad Afsar Khan, on January 2, 1981, it was made known to the plaintiff.
It was averred that gift-deed and mutation in consequence thereof in favour of defendant were false, fictitious and fraudulent. It was also claimed that the gift-deed was also void on account of non-delivery of possession to the defendant-donee. The plaintiff prayed that he being in possession of suit land on the basis of oral gift the gift-deed in favour of defendant be corrected and his name may be entered as a donee in the gift-deed. It was also averred in the suit that the sale-deeds, dated March 18, 1982, and July 21, 1983, are also liable to be cancelled. In April 1969, according to the plaintiff land bearing old Survey Nos.1227, new 788 and 802, measuring 15 Kanals, 8 Marlas was forcibly taken into possession by him and he openly asserted adverse possession in it. In April 1970, the defendant alongwith Sarwar Khan and Muhammad Afsar Khan demanded and tried to get back possession of the aforesaid land but they failed and plaintiff did not hand over the possession of the land to them. The plaintiff also prayed that entries in the Revenue Record made in favour of defendant be declared as invalid being against the rights of plaintiff and the same be set aside. In the written statement filed by Abdul Qayyum, the defendant, the factum of oral gift in favour of plaintiff was repudiated and was averred that his father, Sawar Khan, on persuasion of respectables of the tribe gave only 4 Mamas of land to the plaintiff for the purpose of building a house but in the year 1981, as a result of stay order issued by the Court he got the possession of the suit land. It was also averred by the defendant that when the gift-deed was executed in favour of defendant, Muhammad Afsar Khan donor was physically fit and enjoying good health. The question of getting a gift-deed in his favour during the illness or death-bed of Muhammad Afsar Khan donor, according to the defendant, did not arise. It was averred by the defendant that even after the execution of gift-deed the donor remained alive uptill January 1981, and this fact has been admitted even by the plaintiff in his suit. The possession of the gifted land according to the defendant was handed over to the defendant at the time of execution of gift. On October 1, 1983, a counter-suit was filed by Abdul Qayyum , defendant, the predecessor-in-interest of Mst. Walayat Jan and other respondents, for possession of 15 Kanals, 6 Marlas of land comprising Survey Nos.788 and 802 on the ground that in January, 1981, Fazal Hussain, defendant, filed a false and fictitious suit against Abdul Qayyum plaintiff and his father Sawar Khan and on account of issuance of stay order took the possession of the suit land.
3. During the pendency of suit Abdul Qayyum defendant, died and by the order of Court, dated September 26. 1988, Mst. Walayat Jan and others were impleaded as his successors-in-interest in suit filed by Fazal Hussain as defendants and in the suit filed by Abdul Qayyum as plaintiffs. The learned Sub-Judge consolidated both the suits and on the pleadings of the parties framed as many as 14 issues.
4. The learned Sub-Judge, Pallandri, vide his consolidated order, dated October 14, 1990, dismissed the suit filed by Fazal Hussain, appellant, and decreed the suit filed by Abdul Qayyum, the predecessor-in-interest of respondents Walayat Jan and others. The decree for possession as prayed for by Abdul Qayyum the predecessor-in-interest of respondents was passed except 4 Marlas of land wherein the house of appellant Fazal Hussain was built.
5. Against the aforesaid judgment and decree passed by the trial Court, Fazal Hussain appellant herein, preferred an appeal before the Additional District Judge, Pallandri who vide his order, dated October 28, 1991, dismissed both the suits.
6. Feeling aggrieved with the above order of Additional District Judge both the parties filed separate appeals in the High Court which vide its consolidated order, dated April 24, 1995, accepted the appeal filed by Mst. Walayat Jan and others, respondents, but the appeal filed by Fazal Hussain, appellant, was dismissed. Consequently the judgment and decree recorded by Additional District Judge, Pallandri, were set aside and the judgment and decree passed by Sub- Judge were maintained. Hence this appeal.
7. Arguing the case on behalf of appellant, Raja Muhammad Hanif Khan, the learned counsel, maintained that on the basis of evidence on record it was fully established that Afsar Khan during his lifetime transferred the suit land in favour of appellant on the basis of oral gift but the Trial Court as well as the first and second Appellate Courts misread the evidence and did not appreciate the same in its true perspective. It was contended that the findings recorded by the Trial Court and the first and the second Appellate Courts that the appellant was not in adverse possession of the suit land were erroneous and based on mere assumptions. According to the learned counsel the possession of appellant on the suit land even during the lifetime of Muhammad Afsar Khan was open and hostile in nature. Similarly against Abdul Qayyum and his successors-in-interests Mst.
Walayat Jan and others his possession had ripened into ownership but this plea without any justifiable reason was turned down by all the Courts. The learned counsel submitted with vehemence that the gift-deed, dated December 6, 1978, in favour of Abdul Qayyum by Muhammad Afsar Khan, donor, was void and invalid for the simple reason that the possession of the suit land was not delivered to the donee. According to the learned counsel the condition of delivery of possession, being essential ingredient for completion of gift the same was void on account of non- delivery of possession. The learned counsel referred to Revenue Record and pointed out that suit land is shown in possession of Fazal Hussain, appellant. It was maintained that the gift-deed was executed in 1978, but possession of the gifted land was not handed over to the donee. The learned counsel pressed into service the submission that sale-deeds, dated March 16, 1982 and August 21, 1983; were also invalid as they were executed in excess of the share of the vendor, Muhammad Afsar Khan. The learned counsel also submitted that both the trial Court and Appellate Courts have fallen into grave error by dismissing the suit and the appeal filed by the appellant.
8. Controverting the arguments it was argued by Sardar Rafique Mahmood Khan, the learned counsel for the respondents', that Fazal Hussain, appellant-plaintiff could not prove the factum of oral gift in his favour and the possession of suit land in consequence of the oral gift. According to the learned counsel there was a concurrent finding of fact recorded by the trial Court and the first and second Appellate Courts that Fazal Hussain, appellant, could not substantiate his plea of oral gift on the basis of any cogent evidence. The evidence of the witnesses on the point runs counter to the claim of appellant-plaintiff, submitted the learned counsel. He maintained that Fazal Hussain, plaintiff miserably failed to prove the plea of oral gift. On the other hand the gift-deed executed in favour of Abdul Qayyum, the predecessor-in-interest of Mst. Walayat Jan and others, respondents, dated December 6, 1978, was perfectly valid and in accordance with the requirements of law. The question that it was void or invalid, due to non-delivery of possession in the circumstances of the case did not arise. The learned counsel submitted with vehemence that there was ample evidence on the record that at the time of gift the possession of gifted land was handed over to the donee. In the alternative according to the learned counsel for the respondents it was only the donor or any of his heirs who could validly object to the non-delivery of possession and incompletion or invalidity of the gift but not the third person. According to the learned counsel the appellant figures no where as he is neither a donor nor one of the heirs of the donor. As regards the execution of sale-deeds in favour of Abdul Qayyum on behalf of Muhammad Afsar Khan, it was maintained by the learned counsel for the respondents that these sale-deeds were not specifically challenged by appellant, Fazal Hussain, in his suit. Fazal Hussain appellant neither pleaded nor there was any issue on the point that the sale-deeds were in excess of the share of the vendor. Sardar Rafique Mahmood Khan also submitted with vehemence that only a co-sharer with the vendor in the joint land could have challenged the validity and legality of the sale-deeds whose interests would have been adversely affected but the appellant neither being a co-sharer nor his interests being adversely affected could not have claimed the cancellation of sale-deeds. According to the learned counsel for the respondents, the learned Additional District Judge fell in error in dismissing the suit filed by Abdul Qayyum, the predecessor-in-interest of Mst. Walayat Jan and other respondents.
9. We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care.
10. On the point of oral sale in favour of plaintiff-appellant the Trial Court as. Well as the first and second Appellate Courts reached the conclusion that plaintiff-appellant could not prove the same by any cogent evidence. The evidence of the witnesses produced by the plaintiff-appellant is self- contradictory and is not confidence inspiring. A concurrent finding of fact was recorded by the Trial Court and by the Additional District Judge and the High Court. After appraisal of evidence the conclusion drawn was that plaintiff could not prove the factum of oral sale in his favour nor in consequence of any oral sale the possession of the suit land was handed over to him. This Court is not supposed to reverse the concurrent finding of fact which is based on well-stated reasons and after thorough appraisal of the evidence on the record.
11. Abdul Qayyum, the predecessor-in-interest of respondents, Mst. Walayat Jan and others, substantially proved that Muhammad Afsar Khan vide gift-deed, dated December 6, 1978, executed by him alienated his share in favour of defendant. The gift-deed is a registered document and the plaintiff failed to substantiate his plea that this document in any way was forged, fictitious or fraudulent. So far as the question of delivery of possession of the gifted land to Abdul Qayyum defendant is concerned, it has been observed by the Trial Court that donor Muhammad Afsar Khan, his brother Sawar Khan and donee Abdul Qayyum were residing in the same house and donor Muhammad Afsar Khan died in the year 1981, when he was living alongwith Sawar Khan and Abdul Qayyum. Thus, it will be-presumed that possession of the gifted land was delivered to Abdul Qayyum donee. To the same effect is the finding recorded by the High Court.
However, the learned Additional District Judge reached the conclusion, after appraisal of evidence that the possession of gifted land was not delivered by Muhammad Afsar Khan, donor, to Abdul Qayyum, donee. At the same time it was opined by the learned Additional District Judge that plaintiff-appellant Fazal Hussain, had no locus standi to challenge the gift-deed for the very simple reasons that the question of non-delivery of possession could have been validly raised only by the donor and not by any third person. Even after forming the above view the learned Additional District Judge dismissed the suit for possession filed by Abdul Qayyum on the ground that in absence of impleaing the other co-sharers, Abdul Qayyum's suit for possession was liable to be dismissed. To this aspect of the case we will be adverting to at a later stage. At the present moment we are adverting to the point whether at the time of execution of gift-deed, dated December 6, 1978, the possession of gifted land was handed over to Abdul Qayyum, defendant, and if not how would it affect the present proceedings. In our view since the land gifted out was an undivided share of the donor so it was not a necessary requirement to deliver the actual physical possession to the donee. In such-like cases the necessary requirement is only that donor should do all that for parting with the ownership of the gifted land whatever was within his control. After the execution of gift-deed Muhammad Afsar Khan, the donor, remained alive for a period of more than 2 yeais and during his lifetime he never objected to the validity or legality of the gift-deed. It is also on record that the donor had been living alongwith his brother Sawar Khan and Abdul Qayyum, defendant, till the time of his death in 1981. Fazal Hussain, plaintiff, does not happen to be even one of the heirs of the donor. In case of a gift of undivided property objection regarding non-delivery of possession can only be raised either by the donor or his heirs and not by a third person. In the case reported as Muhammad Bashir and others v. Muhammad Yaqub and others (1993 SCR 165), the precise facts were that one Mst. Bago executed a gift-deed in favour of her son Gulla, of land measuring 13 Kanals, 2 Marlas, out of which 7 Kanals, 4 Marlas was transferred to Muhammad Yaqub and Ali Zaman Khan through registered sale-deed. Alaf Din plaintiff, therein, filed a suit praying that gift-deed in favour of Gulla and subsequent sale-deed in favour of Muhammad Yaqub and Ali Zaman be declared as null and void on the ground that gift-deed executed by Mst.
Bago in favour.Of Gulla, her son, was not followed by delivery of possession and the same being out of undivided property (Musha) was void and of no legal consequence. Dealing with the proposition it was observed by this Court at page 167 in the following manner:-- "First coming to the question as to whether the gift-deed executed by Mst. Bago in favour of Gulla is not yalid because the same was not followed by the delivery of possession, it may be stated that it is well-settled principle of law that the objection regarding non-delivery of possession can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff, Alif Din or for that matter his legal representatives are not legal heirs of Mst.
Bago. Thus, the gift-deed in question could not be challenged."
12. In the case reported as Reham Ali v. Abdul (1980 CLC 110) (SC AJ&K), it was observed that gift cannot be held as invalid for non-delivery of possession and that the constructive possession, as corpus is susceptible, accompanied by the acts of the donor shown that he parted with the ownership of the property would suffice for the delivery of the gift. In case reported as Saida v.
Pinnu PLD 1979 SC (AJ&K). 245 it was observed that the delivery of Khas possession by the donor in pursuance of a gift is not necessary in all the cases. If a donor puts the donee in a position which may enable him to get the possession, it would suffice; besides, the objection of non-delivery of possession can only be raised by the donor and not by third person.
13. From the survey of the case-law it is evident that the delivery of possession Is not a condition precedent for the validity of a gift in all cases and the condition is subject to all just exceptions. If in a given case the possession is not with the donor at the relevant time but he makes his intention clear to divest himself of the ownership of the property by doing all that he could do, the validity of gift is not open to challenge on the basis of non-delivery of possession. In the instant case the donor Muhammad Afsar Khan was not in exclusive possession of the gifted land. He was owner of an undivided share in the joint property. The donor was living with Sawar Khan, his brother, and Abdul Qayyum, defendant, the son of Sawar Khan. As said earlier during the lifetime of donor no one objected to the execution of gift-deed. After the death of donor at the most any of the heirs of the donor could have objected to the validity of the gift-deed on the basis of non-delivery of possession. Fazal Hussain, plaintiff-appellant, not being one of the heirs of donor had no right to challenge the gift-deed. The donor by executing the gift-deed in favour of Abdul Qayyum did all that what was within his control to divest himself from the ownership of the property. After the death of donor the name of donee was entered in the Revenue Record in place of Muhammad Afsar Khan, donor. Therefore, we are of the view that the gift-deed executed by Muhammad Afsar Khan, donor, in favour of Abdul Qayyum was perfectly valid and could not have been challenged by appellant. The plaintiff-appellant also could not substantiate his plea that gift-deed was executed when the donor was on the death-bed. As a. Matter of fact according to the suit of the plaintiff-appellant he was out of the country when the gift-deed was executed. All the Courts observed that plaintiff-appellant failed to prove that the donor was in any way under the expectancy of death when the gift was executed. In this view of the matter the objections with regard to non-delivery of possession and the gift-deed having been executed under the expectancy of death are hereby repelled.
14. The next point which needs the resolution of this Court is with regard to the adverse possession of plaintiff-appellant over the suit land. It was averred by plaintiff in the suit itself that he asserted his adverse possession over the suit land in the year 1969, when he forcibly took the possession of the suit land. The plaintiff went on to say that defendant Abdul Qayyum, his father Sawar Khan.
Demanded the possession from the plaintiff-appellant but he refused to hand over the possession to them. It is established from the record that the donor had been living with his brother Sawar Khan and Abdul Qayyum in their house till the time of his death in 1981. So far as the possession of plaintiff-appellant over the suit land against his father Sawar Khan is concerned that can never be regarded as hostile in the eye of law. The possession of son can never be hostile towards his father and vice versa. However, plaintiff-appellant was well within his right to claim adverse possession against Abdul Qayyum, the predecessor-in-interest of respondents. The adverse possession, if any, of appellant against Abdul Qayyum shall start from the day when'in the first instance in December, 1978, the gift-deed was executed in his favour. The suit was filed by the plaintiff-appellant in the year 1981, this shows that the necessary statutory period required for setting up adverse possession is 12 years which had not elapsed as yet in this case. It has been so held by the learned Additional District Judge. The plea of adverse possession claimed by appellant was rejected by the Trial Court as well as by the first and the second Appellate Courts. A conclusion arrived at, after thorough scrutiny of evidence by all the Courts cannot be disturbed by this Court. Moreover, there is nothing on the record to show that the possession of plaintiff-appellant was adverse to the defendant or his legal representatives.
15. The learned Additional District Judge after appraisal of evidence reached the conclusion that the sale-deeds executed by Muhammad Afsar Khan in favour of Abdul Qayyum, defendant, were beyond the share of the vendor. This finding recorded by the learned Additional District Judge, according to our estimation, was beyond the jurisdictional competence of the learned Additional District Judge. In the suit filed by plaintiff-appellant it was nowhere the case of plaintiff that sale- deeds were void or inoperative against the rights of plaintiff on the basis of being in excess of share of the vendor. The plaintiff never pleaded in the suit that the vendor sold the land in excess of his share. No issue to this effect was framed. In our view, the learned Additional District Judge fell into a grave error by observing and recording finding that the vendor alienated the share of undivided property beyond his share. After recording the above finding, the learned Additional District Judge observed that the plaintiff-appellant being not a co-sharer with the vendor had no right to challenge the sale-deeds and the same cannot be held to be as illegal and inoperative against his rights. To the above extent the finding recorded is correct and we are also of the view that the sale- deeds could have been set aside on the basis of being in excess of share of the vendor, if the sale- deeds had been challenged by any of the co-sharers of the vendor. As it has been earlier observed that plaintiff-appellant not being a co-sharer with Muhammad Afsar Khan, the vendor, the sale- deeds even if were beyond his share, could not have been set aside or declared invalid as against the rights of appellant-plaintiff.
16. The learned Additional District Judge simply dismissed the suit filed by Abdul Qayyum on the ground that he had not impleaded the other co-sharers in his suit as defendants. There is no doubt that the suit land is an undivided property and Muhammad Afsar Khan alienated his undivided share on the basis of gift-deed and sale-deeds. In our considered view the suit filed by Abdul Qayyum for possession of the suit land could not have been dismissed on this sole ground. Since the land gifted away and sold to Abdul Qayyum on behalf of Muhammad Afsar Khan is an undivided share, the proper course would have been to grant a decree for joint possession in his favour. Abdul Qayyum, donee and transferee on the basis of sale-deeds will enter into shoes of Muhammad Afsar Khan and nothing more or less than his share.
17. For the aforestated reasons, finding no force in the appeal filed by Fazal Hussain, the appellant herein, the same, therefore, stands dismissed. However, the respondents, Mst. Walayat Jan and others, being the legal representatives of Abdul Qayyum shall get a decree of joint possession of the suit land except 4 Marlas of land wherein the house of appellant Fazal Hussain is built, of course subject to partition. The above-stated 4 Marlas of land in accordance with the private arrangement between the parties shall remain in the ownership of appellant Fazal Hussain. With the above modification the appeal filed by Fazal Hussain fails with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.