This is Civil Revision Application under section 115, C.P.C. Preferred against the Judgment/Decree passed by learned Ist Additional District Judge, Larkana. Dated 30-6-1986 in Civil Appeal No.4 of 1981 confirming the Judgment/Decree passed by the First Senior Civil Judge, Larkana dated 13-12- 1980, in F.C. Suit No. 35 of 1974.
2. Briefly stated the facts which lead to this Revision are that the respondent (Umer Daraz) filed Civil Suit No. 35 of 1974 for-Declaration that the house bearing No. 904/3-F, Ward "C", Larkana having purchased in the name of his father Fayyaz Khan from the-Settlement Department, was a benami transaction and that he was the real owner of the same. He further sought declaration that the gift deed executed by Fayyaz Khan in favour of petitioner (Muhammad Haneef) was void and illegal.
3. That both the above said suits were consolidated by the trial Court and following consolidated issues were framed: --
(1) Whether Umer Daraz purchased the house in the name of Fayyaz Khan or whether Fayyaz Khan purchased it?
(2) Whether Fayyaz Khan remained in possession of the suit property?
(3) Whether Muhammad Haneef allowed Umer Daraz to occupy the house in suit as a licensee? If so, to what effect?
(4) Whether the gift of the house in suit in favour of Muhammad Haneef is void and of no legal effect?
(5)Whether Muhammad Haneef has remained in possession of the suitproperty?
(6) Whether Muhammad Haneef is the lawful owner of the house in suit? "`
(7) What should the decree be?
4. The parties to both the suits led oral as well as documentary evidence in support of their cases.
Umer Daraz examined himself at Exh.88 and produced documents at Exhs.89 to 92 and also examined witness Ghulam Sarwar at Exh.93, and closed his side under statement at Exh.94; while Muhammad Haneef examined himself at Eich.95 and produced documents at Exhs.96 to 97 and also examined Mr. Kewalram, Advocate at Exh.98 and closed his side vide Exh.99.
5. That the learned trial Court vide its judgment dated 13-12-1980 partly decreed the suit of Umar Daraz to the extent that he is owner of the disputed house of 0.50 paisas share in it and he should.
Not be interfered with his possession to this extent by Muhammad Haneef and other heirs of Abdul Hameed. The suit of Muhammad Haneef for possession against Umer Daraz was dismissed and the legal heirs of late Abdul Hameed including Muhammad Haneef who are owners of 0.50 paisas share in the disputed house are at liberty to file suit for partition and possession against Umer Daraz.
6. Thai against the abovesaid judgment of trial Court, Muhammad Haneef filed two Appeals Nos.3 and 4 of 1981 which were allowed by learned 1 Additional District Judge, Larkana vide judgment dated 4-3-1982, whereby the suit filed by Muhammad Haneef was decreed and the suit filed by Umer Daraz was dismissed. Against this judgment Umer Daraz filed Revision Application No.29 of 1982 in the High Court of Sindh, Sukkur Bench of Sukkur which was heard and decided vide judgment dated 6-11-1983 and the operative part of it reads as under: - "From the judgment of the learned first Appellate Court, it is patent that the question of handing over of the possession was very much agitated by the parties. However, the learned first Appellate Court proceeded on the erroneous assumption that the delivery of possession was not required as observed hereinabove in para. 4. I would therefore allow this revision to the extent that I would remand the case to the first Appellate Court with the direction that after hearing the parties to record its finding on the question whether factually the possession of the suit house was given byFayyaz Khan to the respondent in order to complete the gift. The appeal may be disposed of in accordance with law after recording the finding on the above question. The learned first Appellate Court shall be at liberty to record additional evidence on the 'above point in case if it considers it necessary "
7. That on remand the parties put their appearances before the learned first Appellate Court and did not lead any additional evidence in support of the point of the factual delivery of possession of the house in question nor the first Appellate Court deemed it necessary to record the additional evidence on the said point as according to him the evidence on the said point was already available and, therefore, no additional evidence was recorded. After hearing the learned advocates for both the parties, the learned first Appellate Court vide its judgment dated 30-6-1986 dismissed the Appeal No.4 of 1981, by determining that the possession of the suit house was not actually delivered by Fayyaz Khan to his grandson appellant Muhammad Haneef, at the time of making the gift deed in respect of the suit house. And since the possession of the suit house is not proved to have/had been actually delivered to appellant Muhammad Haneef by his grandfather Fayyaz Khan, the appellant Muhammad Haneef cannot claim the ownership of the suit house on the basis of the gift deed produced by him in the trial Court.
8. Being aggrieved by the judgment dated 30-6-1986 passed by the first Appellate Court, the petitioner Muhammad Haneef has filed the instant Civil Revision Application.
9. I have heard Mr. Moohan Lai, Advocate for the petitioner and Mr. Abdul Hameed Khan, Advocate for the respondent and with their valuable assistance have gone through the entire record of the suit available in Court.
10. Mr. Moohan Lal, the learned advocate for the petitioner contended that Fayyaz Khan the grandfather of the petitioner Muhammad Haneef under a Registered Gift Deed dated 21-7-1969 gifted the suit house to Muhammad Haneef and the possession of the said house was given to himst through his father as he was minor at that time: He argued that word "TO HOLD" is mentioned in the said gift deed, which means that possession was delivered. He also referred to the evidence of Muhammad Haneef who stated that in 1972 he had put the respondent Umer Daraz, who is his uncle, in possession of the house in dispute as a licensee and since the licence is revoked by Muhammad Haneef he is entitled to the possession.
11. In reply Mr. Abdul Hameed Khan, the learned advocate for the respondent argued that there is concurrent finding of fact on the point of validity of the gift deed due to non-delivery of possession, as such the said finding cannot be disturbed without the proof of misreading or non-reading of the evidence available on record. He contended that the word "to hold" does not mean the delivery of possession. He further argued that the revision can only be maintained if there is illegality, irregularity or want of jurisdiction; and not on the appreciation of evidence. In support of his plea, he relied upon following case-law:--
(1) 1972 SCMR 50, Ashiq Hussain v. Ashiq Ali.
(2) PLD 1964 SC 143, Shamshad Ali Shah v. S. Hassan Shah.
(3) PLD 1994 Karachi 348, Miss Parveen v. Nizari Coop. H.S. Limited, Karachi and others.
(4)1986 IPLC 1151, Mst. Sardar Begum v. Iqbal Ahmed and others.
11. I have given my anxious thought to the circumstances of the case and the points urged before me., The main document over which the entire dispute rests is the gift deed (Exh.97). The perusal of the said gift deed reveals that there is offer by Fayyaz Khan in favour of Muhammad Haneef regarding giving the disputed house in gift; and there is also acceptance of the said gift by Abdul Hameed the father of Muhammad Haneef on his behalf as Muhammad Haneef was said to be minor at that time. The third ingredient which is most important to constitute a valid gift i.e. Delivery of the possession of the gifted property by the donor to the donee is missing. In the said gift deed nowhere it is mentioned that the possession of the house in dispute was ever delivered to Muhammad Haneef, the donee, nor there is any endorsement to the effect that the possession of the same was received on behalf of the donee by his father Abdul Hameed. In view of the above legal position, the gift in question in respect of the house in dispute registered in the office of Sub- Registrar, Larkana in favour of Muhammad Hanif by his grandfather Fayyaz, Khan is not a valid gift and does not create any right and title in favour of Muhammad Haneef. The claim of Muhammad Haneef about the delivery of the possession of the house in suit is not supported by his witness Kewalram. The other two attesting witnesses have not been examined by the petitioner Muhammad Haneef.
12. Under the above circumstances, I have reached to the conclusion that / the finding of the trial Court as well as of first Appellate Court in the instant revision does not call for interference, and in the result, the Revision Application No. 13 of 1994, is dismissed with no order as to costs.