The respondents filed a suit against the petitioners on 10-5-1979. It was stated in the plaint that the suit land was owned by Allah Bakhsh son of Qamar who died on 19-5-1978. He had two wives and children from both the wives. One set is the petitioners while the other set is the respondents; that the respondents came to know that vide a registered gift deed, dated 21-7-1977, the land stands transferred to the petitioners and Mutation No.81 has also been attested on 15-10-1977. It was alleged in the plaint that the gift is void as Allah Bakhsh has lost his senses two years before his death. It was also averred that the possession was not delivered to the donees under the alleged gift. It was also alleged that the gift having been made during Marz-ul-Maut cannot take effect as such. The petitioners in their written statement denied the said allegations and stated that a valid gift was made by the deceased Allah Baksh. Issues were framed. Evidence of parties was recorded.
The learned trial Court dismissed the suit of the respondents vide a judgment and decree, dated 23-7-1985. Feeling aggrieved, the respondents filed an appeal which was heard by learned District Judge, Vehari who proceeded to allow the same and decreed the suit of the respondents declaring them to be the owners of 7/24 share in the suit land vide a judgment and decree, dated 26-6-1986.
2: Learned counsel for the petitioners contends that the sole point which weighed with the learned District Judge was that according to him possession was not delivered to the donees under the gift.
According to the learned counsel, the said finding of the learned District Judge is bad both in law as well as in fact and is a result of misreading of the evidence, on record.
Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned District Judge.
3. I have gone through the certified copies of the record appended with this civil revision.
I find that the learned trial Court after examining the evidence on record which comprises inter alia of the marginal witnesses of the gift-deed D.W.1 and D.W.2, found that the gift-deed was validly executed. He also found that the deceased was not suffering from Marz-ul-Maut or any other disability at the time the gift was made. He also found that in accordance with the Islamic Law, the declaration and acceptance was made and the possession was delivered. The learned District Judge. Has not disagreed with any of the said findings except that according to the learned District Judge, the possession of the land was not delivered under gift. He has particularly insisted that the petitioners had not produced copies of Khasra Girdawari for Kharif, 1977 and Rabi, 1978 to prove that the possession was so transferred. I find that as per entries in Register Haqdaran-e-Zameen for the year 1977-78 (Exh.P.5) petitioners-donees are recorded to be the owners and in possession thereof through a tenant.
4. The learned District Judge has also lost sight of the fact that two of the donees i.e. Petitioners Nos.2 and 3 were minors while the third donee i.e. Petitioner No. l was the wife of the donor. It is by now settled that where the gift is made to the wife or the minor children then the physical departure of the donor from the suit land and delivery of actual possession is not necessary.
Learned counsel for the petitioners has cited the case of Mehr Din through Legal Heirs v. Azizan and another 1994 SCM R 1110, Chief Land Commissioner and another v. Maula Dad and others 1978 SCM R 264, Mst. Talawatun Nisa and 2 others v. Officer on Special Duty, Land Commission, Karachi and another 1984 CLC 1712 and Murid Hussain and others v. Ghulam Ahmad alias Ghulam Muhammad and another PLD 1984 SC 392. The said judgments do support the said contention of the learned counsel for the petitioners.
5. In view of the above discussion, I find that the learned District Judge has acted with material irregularity in exercise of his jurisdiction while setting aside the judgment and decree passed by the learned trial Court as his findings are based on misreading of the evidence as also of failure on his part to take note of the law declared by the superior judiciary on the subject. This civil revision is accordingly allowed. The judgment and decree, dated 26-6-1986 of learned District Judge is set aside while that dated 23-7-1985 of the learned trial Court is restored without any orders as to costs.