ZIA MAHMOOD MIRZA, J.--This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court dated 29-3-1994 dismissing the petitioner's appeal (R.S.A No.175 of 1993) directed against the concurrent judgments of the to Courts below.
2. Facts giving rise to this petition, briefly stated, are that Aurangzeb, respondent No. l herein made a gift of his landed property in favour of his sister's sons, the present petitioner Abdul Wahab and respondents Nos.2 and 3 way back in the year 1949. The gift was made through a registered deed.
On 1-7-1969, however, Aurangzeb brought a suit against the donees alleging that he had made the gift in question under a threat to his life and in any case he never delivered possession of the land, the subject-matter of gift, to the donees. The gift as such was not complete. The suit was resisted by to of the donees, namely, the petitioner and respondent No.3 while Abdul Hakim, respondent No.2 conceded the claim of the plaintiff.
3. Learned trial Court after framing the necessary issues and recording the evidence adduced by the parties, decreed the suit of respondent No. l vide judgment dated 14-9-1971 holding that possession of the suit land was not delivered to the donees in pursuance of the gift, which was thus not completed and the same could, therefore, be revoked by the donor. The judgment and decree of the trial Court was upheld by the first appellate Court, which dismissed petitioner's appeal vide judgment dated 8-2-1973. Send appeal filed by the petitioner in the High Court also met similar fate and has dismissed by the learned Single Judge vide the impugned judgment.
The learned Judge repelled the petitioner's contention that the factum of delivery of possession was recited in the gift deed, which was an admission on the part of the donor. The learned Judge held that a recital in a deed about a disputed fact "is not conclusive proof of the same and once the gift as challenged on the ground of the same having not been completed for want of delivery of possession of the land under the same the recitals in the deed could be proved to be also incorrect according to the firmly settled law". The learned Judge, on the basis of the evidence on record, found:-- "Admittedly the land was being cultivated by Muhammad son of Langar under Aurangzeb on the date when the gift deed was executed who was examined as P.W.2. He stated that he alongwith his father had been cultivating the land under Aurangzeb and paying share of the produce to Aurangzeb. The Government dues according to him had throughout been paid by him and Aurangzeb in equal shares. This fact has also been admitted in Ruqa Exh.P.2 written by the appellants 2 and 3 in which they expressed thanks to Aurangzeb deceased for having executed gift deed in their favour but clearly admitted and acknowledged that during his lifetime and the lifetime of his wife the share of the produce would continue to be recovered by them and after their death they would , distribute the produce among themselves. It was a clear admission that the possession of the land had not been delivered in pursuance of the gift deed to the appellants/donees during the lifetime of Aurangzeb who had been dealing with the property as owner and receiving the share of the produce as owner from the tenant. The gift was not complete, therefore, it was rightly held that the same could be revoked by Aurangzeb as according to law a declaration of gift unaccompanied with the delivery of possession of the property could be revoked at any the before the completion of the gift by delivery of possession. "
4. We have heard the learned counsel for the petitioner. He has not been able to point out any infirmity in the concurrent findings of three Courts including the High Court that the possession of the land gifted to the donees was never delivered to them and as such the gift was not completed.
We, therefore find no good ground to interfere with the impugned judgment of the High Court. This petition is accordingly dismissed.