CH. IJAZ AHMAD, J.- The present revision petition arises out of the following facts:- Abdul Hakeem predecessor-in-interest of respondents No. 1 to 5. Aged 120 years, had two living wives in the year. 1980 namely Mst.. Zainab Bibi respondent No. 5 defendant and Mst. Fazal Bibi respondent No. 1 defendant No. 4. It is pertinent to mention here that Abdul Hakim had two other wives who died during his life time namely Paris and Mst. Jabeen. Abdul Hakeem had no issue from Mst. Zainab Bibi: Mst. Fazal Bibi and Mst. Jabeen Bibi but had only one daughter namely Balqees: from his wife Paris. The facts as mentioned in the plaint are that. Abdul Hakeem wanted to alienate one acre of land approximately out of 80 kanals situated in Village Gullapur. Tehsil Bhalwal. District Sergodha. Abdul Hakeem, as mentioned-above. Was an old man (120 years age) and illiterate person, therefore, executed a power of attorney for alienation of land measuring one Acre and 9 Kanals for graveyard in favour of Sajjad Hussain respondent No. 6. Ln the plaint, it is alleged that the said Sajjad Hussain fraudulently obtained power of attorney in his favour on 10th February. 1980" regarding alienation of the whole land- approximately 80 kanals of Abdul Hakeem. Sajjad Hussain gifted the entire land in favour of Muhammad Aslam and Hushier Khan sons of Ghulam Hussain vide Mutation No. 1255 which was entered and sanctioned on 5.5.1981. Late Abdul Hakeem, predecessor-in-interest of the respondents filed a suit for declaration and permanent injunction that the gift was executed fraudulently by way of mis representation and without his consent in his life time on 21.7.1981. The present petitioners filed application under Order 7 Rule 11 C.P.C, that possession has already been taken by them, therefore, suit in the present form was not maintainable. The leamed trial Court after hearing both the parties rejected the plaint under Order
7. Rule 11 C.P.C, on 7th January. 1985. The respondent aggrieved by this decree judgment filed appeal and the appellate Court on 25.3.1985 accepted the appeal and gave its finding that the possession of land at the time of filing suit was with Abdul Hakeem but subsequently it was changed by force by the present petitioner and remanded the case to the trial Court for decision afresh on merits. It is pertinent to mention here that this order of the leamed Addl. District Judge was not challenged in any higher forum, therefore, the order dated 25th March. 1985 is final between the parties. The leamed trial Court framed the following issues:-
(i) Is this suit is not maintainable in its present form?
(ii) Is this suit correctly valued for the purpose of Court fee and jurisdiction?
(iii) Whether the plaintiffs are estopped to file this suit?
(iv) Whether the plaintiff and defendant No. 4 are owners in possession of . The suit property?
(v) Whether the general power of attorney dated 10.12.1980 and gift Mutation No. 1255 dated 5.5.1981 are based on fraud and hence are illegal, void, and ineffective on the rights of the plaintiff?
(vi) Whether the plaintiffs are entitled to possession of the disputed property?
(vii) Relief.
The leamed trial Court after completing all the legal formalities decreed the suit on 8.10.1986. The present petitioners filed appeal before the District Judge which was finally dismissed on 11.11.1990.
Hence the present revision petition.
2. The leamed counsel for the appellant contended that the judgment of the Appellate Court is based on mis reading and non-reading of the record and pointed out that Ex. D1 is to the following effect:- tJ J* / J0 ) it f li* Zl ij'1 ^I? ^ If (J-J'1 ((Urdu Text))
The leamed counsel pointed out that the leamed Addl. District Judge mis-read this document in its finding in para 8 which are to the following effect:- I am of the view that he General Attorney was not competent under the General Power of Attorney Ex. Df'l to make a declaration of the gift touching the suit land".
Leamed counsel farther relied upon Ex. P.7 and the relevant portion is reproduced hereunder:- ((Urdu Text))
The leamed counsel farther contended that the findings of the leamed Add!. District Judge in para 11 are also based on mis-reading of the record. The leamed counsel also relied upon Ex.P.
2. P.S and statements of D.W. 2 and D.W. 1 to show that the possession of the land in question was handed over to the donee at the time of gift.
3. Leamed counsel for the respondents contended that the present petitioners did not attach material documents i.e. Original plaint filed by Abdul Hakeem, application under Order 7. Rule 11 CPC order of the trail Court dated 7.1.1985, grounds of appeal against the order dated 7.1.1985, grounds of appeal against the order dated 23.3.1985 Ex. P.4 Khasra Girdawari, with the revision petition, therefore, the revision petition is not maintainable in view7 of Section 115 C.P.C, and relied upon the judgment reported as Federation of Pakistan through G.M. Pakistan Railways v.
Muhammad Sadiq (P.L.J. 1987 Lahore 303) and Trading Corporation of Pakistan Ltd. v. Luck Fruit Products (P.L.D. 1988 Lahore 329) The leamed counsel farther contended that order dated 25th March, 1985 is final and binding between the parties and relied upon the judgment reported as Fida Muhammad v. Pir Muhammad Khan (P.L.D. 1985 S.C. 341) and Malik Riaz Ahmad v. Mian Inayatullah (1992 SGMR 1488). The leamed counsel farther contended that he petitioners were not relatives of late Abdul Hakeem and gift was executed without any love and affection, therefore, gift was invalid.
The leamed counsel further contended that the attorney executed gift in favour of the donees petitioners without getting fresh instructions from the principal who was not only aged person but also an illiterate person. The leamed counsel farther contended that daughter of the donor was alive at the time of execution of the gift and in her presence Abdul Hakeem could not execute such a gift in favour of the present petitioners it w as executed in favour of the relations of Mst. Zainab Bibi excluding the daughter, the only legal heir of Hakeem, therefore, the gift was not valid as is held by the Lahore High Court in a judgment reported as Muhammad Shaft v. Nasir Ali (1994 M.L.D. 283).
The leamed counsel further contended that by virtue of judgment of the leamed Addl. District Judge: possession was not delivered at the time of gift; to the donees, therefore, gift was not proper, being in violation of mandatory' Provisions of Injunction of Islam and relied upon para 138, para 152 of Muhammadan Law7 by D.F. Mullah. The leamed counsel further contended that only the attorney appear before the Revenue Officer which is evident from Ex. P.6. Neither the donor nor the donees appeared before him. This fact alone is sufficient to prove that the gift w as not valid. The leamed counsel further contended that the impugned judgments of both the Courts below are concurrently against the petitioners on the basis of the evidence adduced before the Courts below, therefore, High Court under Section 115 C.P.C, has limited jurisdiction to interfere with the concurrent findings of fact except where recorded on account of misreading or non- reading of the record.' 'the leamed counsel finally contended that the donor himself in his life time challenged the gift, therefore, gift was not made/executed in favour of the donees and relied upon the judgment of the Supreme Court reported as Ani Chand Fajroo (P.L.D. 1991 S.C. 1001). The leamed counsel for the respondents further contended that the donors was illiterate and in Ex. P.7 categorically mentioned that he executed power of attorney relating to land measuring 1 acre and nine kanals only, therefore, the contention of the leamed counsel for the petitioners is not sustainable in view of the contents of Ex. P.7.
The leamed counsel for the petitioners in rebuttal submitted that the documents were not attached with the revision petition as those documents related to the interim order and the interim order is merged in the final order, therefore, those were not necessary and the objection of the respondents is not sustainable in the eyes of law.
4. I have given my anxious consideration keeping in view1 the contention of the leamed counsel of the parties and perused the record myself. The finding of the leamed first Appellate Court is the result of misreading which was pointed out by the leamed counsel for the petitioners to the extent that power-of-attorney contains the word gift (-) but the leamed Appellate Court misread that document (Ex.P. 1-Ex.D.I) and gave finding that vide Exh. D/1 power of attorney, the attorney,' was not competent to make a declaration of the gift regarding the suit land, therefore, the contention of the leamed counsel has force. Now the question arises as to w hether the judgment and decree of the Appellate Court is to be set aside or remand the case to the leamed First Appellate Court for second round of litigation. I haw examined the judgments of both the Courts below carefully, and found that those are sustainable as both the Courts below came to the conclusion after perusing the evidence that donor did not hand over the possession to the donees, it is pertinent to mention here that the donor in his plaint took a stand that he gave general power of attorney only relating to one acre, 9 kanals of land in question and he filed a suit within two months of the alleged gift.
There are following three ingredients which make a gift valid:-
(i) offer.
(ii) Acceptance:
(iii) Possession.
The leamed trial Court has given the finding regarding possession as follows:- "The above-observations of the leamed Appellate Court had never been questioned in any forum and those have attained finality. When it has already been held that the possession was with the plaintiff at the time of institution of the suit, it would mean that he possession could not had been delivered to the donee at the time of alleged gift. The leamed counsel for the defendant argued that such observation cannot be taken into consideration as those were not finding on any specific issue. But such question of possession arises during the pendency of the suit, which had been decided and settled by the leamed Appellate Court, when the appeal was filed against that order of rejection of the plaint, which was rejected only on the basis of being plaintiff out of possession.
Such question of possession had already been settled by the leamed Appellate Court and cannot be allowed to agitate the same as principle is laid down in PLD 1985 Lahore 476. If we rely upon the principle laid down by his Lordship in above said care, the question of possession in the present suit had already been settled by the leamed Appellate Court and subordinate Court could not go out of such findings.
In the above circumstances, it has become quite evident that the possession was not delivered at the rime of alleged gift, therefore, that was no gift in the eye of law. Gift without possession is void gift ab initio as principle is laid down in PLD 1964 Supreme Court 143 (f). It could be said that the possession had been taken during the pendency of the suit and the requirement of delivery of possession is fulfilled. But such possession was without the permission of donor, therefore, such contention had got no force as the possession was not delivered at the rime of gift and the same principle is laid in 1980 CLC 2155(d) Lahore".
The question of possession had already been settled by the leamed Appellate Court and cannot be allowed to agitate the same as a principle is laid down in Baqa Muhammad v. Muhammad Nawaz and others (P.L.D. 1985 Lahore 476).
'If we laid down upon in the above said case, the question of possession in the present suit has already been settled by the leamed Appellate Court and subordinate Court could not go out of such findings'.
Ln the above circumstances, it is quite evident, that the possession was not delivered at the tie of alleged gift, therefore, that was not gift in the eyes of law. Gift without possession is void and ab initio gift as the principle is laid down in Shamshad Ali Shah and others v. Syed Hassan Shah and others {1964 S.C. 143).
5. The leamed Appellate Court while discussing question of possession in para 10 gave finding to the following effect:- "If is very difficult for this Court to agree with this contention because a gift is not complete unless possession is not taken by the donee at the time of declaration of gift and its acceptance.
Possession taken at a subsequent date is sufficient to fulfil the requirement of law if the same was taken with the donor's consent. In the instant case the alleged donor assailed the gift and vigorously prosecuted his cause till his death.
The finding of facts recorded by both the Courts below regarding possession that . The donees did not get the possession of the disputed property from the donor at the time of declaration of gift and even subsequently by his consent, therefore, High Court while exercising jurisdiction under Section 115 C.P.C, cannot disturb the finding of facts of both the Courts below unless and until these findings are based on misreading or non-reading of the record. The leamed counsel for the petitioners failed to point out any piece of evidence that the possession was taken by the donees from the donor with his free will at the time of declaration of gift or subsequently.
From the family of Abdul Hakeem donor his daughter Balqees w as alive at the rime of gift, therefore, the gift was not executed in favour of the donees as is held by the Supreme Court in "Ami Chand v. Fajroo" (PLD 1991 S.C. 1001). It is the conspiracy to exclude the legal heirs. The objection of the respondents that the revision petition is liable to be dismissed as the petitioners did not attach all the documents and withheld the material document, has no force because the leamed counsel for the petitioners can argue the case on the basis of the material available on the record, therefore, the objection of the respondents is not maintainable.
6. In view of what has been stated above, there is no merit in this petition and the same is dismissed with no order as to costs.