SYED JAMSHED ALI, J.--- This is plaintiffs second appeal and is directed against concurrent judgments and decrees of the learned two Courts dismissing her suit for declaration and injunction based on an oral gift. The facts of the case as gathered from the record are as follows.
2. Murad deceased was the owner of the disputed land measuring 154 kanals, 7 Marlas who statedly orally gifted the entire aforesaid land to the appellant and had lodged report No. 5 in Roznamcha Waqiati on 2.9.1972 (Ex.P.W.6/1). It was also claimed in the suit in the alternative that as an utrine sister of the said Murad she was entitled to 1/6 share in his estate. Based on the aforesaid report P.W.6/1, Mutation No. 36 was entered on 2.9.1972 (Ex.D4) but was not attested. The only order recorded thereon by the Assistant Collector Grade-II on 5.12.1972 shows that the gift was disputed and, therefore, proceedings were adjourned to be taken up in the presence of the heirs of the deceased. It may also be noted that on the written application of Mst. Sardaran Bibr, daughter of the deceased, Mutation No. 37 in respect of the inheritance of Murad was entered on 30.10.1972 (Ex.D2). It appears that this mutation was not also attested.
3. Murad died on 12.10.1972 and was survived' by two widows namely Mst. Noor Bibi and Sataran Bibi and a daughter, Mst. Sardaran. A written-statement was filed inter alia; on behalf of Mst. Sardaran the daughter in which she confessed the judgment. Another set of defendants also filed a consenting written statement but the other defendants, the collateral of Murad, contested the suit.
4. On 7.11.1987 Mst. Sardaran Bibi made an application repudiating written-statement filed on her behalf and sought permission to 'file a substituted written-statement. This application was dismissed vide order dated 15.11.1987 and a revision petition taken against the said order was dismissed by the learned Addl. District Judge vide order dated 11.1.1988.
5. Necessary issues were framed and the suit was tried. Vide-judgment and decree dated 1.12.1988 of the learned Trial Court it was dismissed on the basis of the finding that the gift in favour of the appellant was not established. It was further held- that she was not the utrine sister of deceased Murad. On appeal being taken to the learned District Court the findings of the learned Trial Court were affirmed vide judgment and decree dated 12.9.1989.
6. The learned counsel for the appellant has contended that the factum of gift had duly been proved by the evidence of P.W.2, the Patwari Halqa, who nad recorded the report Ex.P.W.6/1, P.W.3, Ghulam A.I, Lambardar, who appeared before the Revenue Officer when mutation No. 36 was presented before the Revenue Officer, P.W.4, Mst. Sardaran Bibi, daughter of the deceased Murad and P.W.5, Muhammad Anwar the attorney of the plaintiff-appellant. Fact his emphasis was on consenting written-statement and the statement of Mst,Sardaran Bibi recorded in the case as P.W.4.
7. On the other hand, learned counsel -for the contesting respondents has supported, the impugned judgments and decrees. According to him it was a case of no evidence as far as factum of gift by Murad in favour of the appellant was concerned.. He further contended that admission of a co-defendant does not bind the other defendants and at best it could be treated as a piece of evidence and when interest of other co-defendants is involved it does not amount to waiver of the controversy. He also contended that the appellant had set up a false case both on the question of gift as well as on relationship and, therefore, her suit had rightly been dismissed. It was finally contended that the matter stands concluded by concurrent findings of the learned two Courts and, therefore, 'no interference is called for.
8. I have considered the submissions made by learned counsel for the parties. As far as oral evidence is concerned P.W.2 recorded a report according to which the gift had earlier been made.
This witness does not provide any evidence of the gift by Murad. P.W.3 is Ghulam A.I, Lambardar, who appeared before the Revenue Officer when Mutation No. 36 was presented before him. He is also not a witness to the gift either. He was otherwise disbelieved. According to him the mutation was entered and attested which was contrary to the order passed on the mutation itself. His presence before the Revenue Officer, therefore, becomes seriously doubtful. P.W.4 is Mst. Sardaran Bibi. She claimed that Murad had gifted the disputed land to the appellant seven years back.
According to her, Murad had informed that he had given :his land to his ,sister. Her statement was recorded on 26.2.1980 and going by her statement the so-called gift was somewhere in 1973 while Murad had already died on 12.10.1972. Muhammad Anwar P.W.5 was the special attorney of the appellant who claimed that Murad had gifted the land to the appellant in his presence and that Murad had himself appeared before the Tehsildar and had affixed his thumb impression on the mutation. He was apparently being because the mutation was presented before the Revenue Officer on .5.12.1972 while Murad had already died.
9. Even if the statement of P.W.4 that a gift was made was taken on its face value, the evidence produced on the record clearly establishes that possession of the disputed land was never transferred. None of the witnesses produced by the plaintiff-appellant including P.W.4 claims that possession was transferred by Murad, the donor to the appellant at the time of the so-called gift.
The evidence coming-forth from P.W.5 rather establishes that in fact possession had never been transferred to the appellant. P.W.5 admitted that Murad was in self cultivation of the land in dispute and when he died Kharif crop had been cultivated by Murad himself but after the gift possession had been delivered to the husband of the appellant. Kharif crop is harvested not earlier then November and Murad having died on 12.10.1972, there was no question of transferring possession of the land by Murad after harvesting the Kharif crop. In any case, his statement alone in the absence of any other evidence could not be relied upon.
10. As far as P.W.6/1 is concerned, this document by itself does not furnish evidence of the gift por any presumption of correctness is attached to the said report.
11. It has been proved that the appellant was not the utrine sister of Murad. This finding was not challenged before the learned First Appellate Court or before this Court. The disputed gift thus, being in favour of a stranger clear and cogent evidence was required to establish that a valid gift was made by Murad in appellant's favour which was lacking in this case.
12. As far as the consenting written-statement filed on behalf of Mst. Sardaran Bibi (through Mr. Munnawar Hussain Chohan, Advocate, is concerned, it was repudiated and disowned. It was required to be proved which was not done. She was not allowed to file a substituted written- statement on the ground that as P.W.4 she supported the case of the plaintiff. The effect of her statement as P.W.4 has already been discussed above. I may add that after having repudiated the said written-statement which was not otherwise proved, it could not be said that the admission contained in the written-statement amounted to waiver of the controversy. Without proper proof of the admission, it could not be used even as a piece of evidence.
13. I thoroughly examined the record of the learned Trial Court. There are two vikalatnamas in favour of Mr. Munnawar Hussain Chohan, Advocate one given by Mst. Nooran, Dost Muhammad, Baqar, Said, Mst. Bibi and Faryal and the other by Mst. Fatima. None of the aforesaid Vikalatnamas show that Mst. Sardaran Bibi had ever appointed Mr. Munnawar Hussain Chohan as her counsel.
14. Whatever, evidence was produced by the parties was taken into consideration by the learned two Courts and the conclusion arrived against the appellant. No interference is, therefore, called for. This appeal is dismissed with costs throughout.