JAVED IQBAL, J.--This appeal is directed against the judgment dated 11-6-1995 passed by learned Lahore High Court, Lahore, whereby ' R.S.A. Preferred on behalf of respondent (Liaquat Ali) has been accepted and judgment dated 29-10-1971 passed by learned trial Court and judgment dated 18- 12-1972 of learned District Judge dismissing the declaratory suit of the respondent has been reversed and suit decreed, hence this appeal.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that "Mst. Resham Bibi mother of Liaqat All present appellant succeeded to the inheritance of her father alongwith others. Respondent Khushi Muhammad was the predeceased son and could not inherit any property and it is urged that a gift was made by the mother of the present appellant as to her share alongwith Mst.Amna Bibi sister of Resham Bibi. The appellant filed a suit challenging the gift dated 3-5-1952 on the ground that the same was obtained by fraud and misrepresentation as his mother was a 'Pardanashin' lady and could not manage her share of property and Khushi Muhammad respondent nephew of the appellant's mother was managing the land on her behalf and he got a document executed for management of the land but pretending it to be a gift-deed.
On the basis of the pleadings of the parties following issues were framed:--
(1) Whether valuation for purposes of court-fee and jurisdiction is correct? OPP
(2) If not, what is the correct court-fee? OP Parties.
(3) Whether the gift-deed registered on 3-5-1952 was made by Mst.Resham Bibi in favour of defendant No,1 under misrepresentation and fraud? O.P.P.
(4) Whether Mst.Resham Bibi was receiving rent from defendant No,1, after the disputed gift? OPP.
(5) Whether the plaintiff has no cause of action against the defendant? OPD
(6) Whether the impugned gift-deed was never acted upon by the parties to the deed? OPP
(7) Whether the defendant No,1 is in adverse possession of the suit land . For more than 12 years?
OPD
(8) Whether the suit is not competent in present form? OPD
(9) Whether the suit of the plaintiff is not within time? OPD.
(10) Relief.
3. After recording the evidence pro and contra learned trial Court dismissed the suit vide judgment dated 29-10-1971 which was assailed by respondent but the same was upheld by the learned District Judge by means of judgment dated 18-12-1978. Being aggrieved the respondent approached learned Lahore High Court by filing R.S.A. No,156 of 1973 which has been accepted, suit decreed and the judgment of trial and. Appellate Courts were set aside, hence this appeal.
4. It is mainly contended by Mr. Gul Zarin Kiani, learned Advocate Supreme Court on behalf of appellant that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged emphatically that the judgment impugned is not only perfunctory but controversy has been decided in a cursory manner by ignoring the evidence causing grave prejudice. It is next contended that the gift-deed in favour of appellant was not only proved duly substantiated by cogent and concrete evidence but also acted upon which escaped notice. It is argued that since it was a case of misreading and non- reading of evidence and the conclusion arrived at by the learned Lahore High Court is without any reasoning the appeal after acceptance may by remanded to learned High Court so that entire evidence could be thrashed out in its true perspective and for the consideration of those pleas which were urged but ignored without any rhyme and reason. It is next argued that the concurrent findings were reversed on flimsy grounds and on this score alone the impugned judgment is liable to be set aside in violative of the provisions as contained in section 100, C.P.C. Which permits interference with concurrent findings of fact only if the decision is contrary to law or the decision is contrary to usage having the force of law or there has been failure to determine some material issue of law or failure to determine issue of usage or there has been some substantial error or defect in the procedure provided by the Code and a second appeal does not on a question of fact.
It is also argued that. No fraud whatsoever was committed and all the legal mandatory requirements were adhered to and in absence of any evidence to substantiate ' the plea of fraud no adverse order could have been passed in this particular sphere as has been done by the learned Lahore High Court on the basis of conjectural presumptions. It is pointed out that the parties are related inter se and two aunts (Phuphees) where the donors of their orphan nephew (Khushi Muhammad) and the appellant's real sister is married to the donor's son. It is stressed that well-established principles of transaction by female have not been proved to be lacking and, therefore, learned High Court was not justified in drawing a conclusion which is neither in consonance with the settled norms of justice nor law.
5. Ch. M. Anwar Bhinder, learned Advocate Supreme Court who appeared on behalf of respondents has strenuously controverted the viewpoint as canvassed by Mr. Gul Zarin Kiani, learned Advocate Supreme Court and supported the judgment impugned being free from any illegality or irregularity.
It is contended that the execution of gift-deed could not be proved by adducing worthy of credence evidence. It is argued that Rehmat Lumberdar who has witnessed the execution deed is not the concerned Lumberdar of the area and accordingly his attestation hardly matters. It is also argued that the appellant failed to produce any confidence-inspiring evidence to show that gift- deed was executed in his favour for which there is absolutely no logic or reasoning. It is pointed out that Liaquat Ali (respondent) being the only son of Mst.Resham Bibi by no stretch of imagination could be deprived from the land in question specially when it has come on record that he was a sourceless person with meager income. It is contended that the plea of adverse possession has been taken in the written statement filed by the appellant which is indicative of the fact that no valid gift was existing in their favour. It is mentioned that had it been so there would have been no justification to press into service the plea of adverse possession.
6. We. Have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 29-10-1971 passed by learned trial Court, judgment dated 18-12-1972 passed by learned District Judge and the judgment impugned. The entire evidence has been scanned. Let we mention here at the outset that learned Civil Judge and District Judge have failed to examine the evidence which has come on record in its true perspective. The appellant failed miserably to prove the execution of gift-deed by producing worthy of credence evidence. As mentioned hereinabove we have examined the entire evidence. After having a careful scrutiny of the statements of Muhammad Boota (P.W.1), Karam Illahi (P.W.2), Alauddin (P.W.3), Ghulam Qadir (P.W.4), Shahabuddin (P.W.5), Nabi Baldish (P.W.6), Riaz Ahmad (P.W.7), and Ali Ahmed (P.W.8), the position emerged as follows which appears to be undisputed:--
(i) The land in dispute is located in Mouza Tolekee where Khushi Muhammad is residing.
(ii) Mst. Resham Bibi is not residing in Mouza Tolekee.
(iii) The land in question was being looked after by Khushi Muhammad (appellant).
(iv) The land in question (18/30 Kumhaun) was obtained on contract (Theka) from Mst. Resham Bibi and an amount of Rs,700 was paid by appellant in this regard.
(v) After institution of suit by Liaquat Ali (respondent) a serious attempt was made by the appellant to get the matter compromised.
(vi) The appellant made a categoric offer for one Murabba of land in case the suit instituted was withdrawn.
(vii) The negotiation for compromise took place in the presence of Ghulam Qadir, Badar Din, Nabi Bukhsh, Rehmat Khan, Ali Ahmed, Ch. Akbar etc.
7. There is absolutely no justification whatsoever to discard the statements of abovementioned witnesses who stood firm to the test of cross-examination and nothing beneficial could be extracted. It is worth-mentioning that not even a remote suggestion was made that appellant was owner in land being donee of the same. All the witnesses have supported each other on all material points. It is an admitted feature of the case that evidence of the abovementioned witnesses could not be discussed at length by the learned High Court but it would have no substantial bearing on merits of the case. The conclusion as derived by means of impugned judgment is free from any infirmity.
8. We have also examined the statements of witnesses produced by the appellant. It is stated by Mst. Aimna Bibi (D.W.1) that the gift-deed was executed at the behest of Mst.Rasham Bibi with the consent of Liaquat Ali is not believable as no sourceless person who has admittedly not well of would give his consent to her mother for donating the entire land in favour of her nephew. Had his consent been obtained from Liaquat Ali he would have signed the gift-deed which would have been a solid proof for its execution, genuineness and authenticity whereof could not have been challenged. It is hardly conceivable that during the existence of alleged gift deed hectic attempt was made to get a compromise executed with Liaquat Ali and handsome offer of one Murabba of land was also made to him. This aspect of the matter also finds support from the statement of Mst.
Aimna Bibi. It is not understandable that if the gift-deed was executed with the consent of Liaquat Ali then what had prompted him to institute a civil suit to get his grievances redressed which is indicative of the fact that Liaquat Ali was not aware about the gift-deed and was not a consenting party. Mst. Resham Bibi being mother of Liaquat Ali could not have deprived him from the land in question as nothing has come on record to show that they were not on good terms or Liaquat Ali was disobedient. It has not been explained why in presence of Liaquat Ali the only son of Mst.Resham Bibi she would have gifted out her entire land to her nephew which is hardly believable and thus it can be said that the gift-deed is not a valid one and its authenticity is not beyond doubt. (In this regard reference can also be made to Muhammad Ashraf v. Bahadur Khan 1989 SCM R 1390 wherein a similar proposition was examined with the observation that such a gift-deed could not be held valid). Besides various dishonest omissions in the statement of Mst. Aimna Bibi it appears to be self-contradictory. She could not mention the name of those tenants who were informed that after the execution of gift-deed Khushi Muhammad became owner of the land in question. She has mentioned in a categoric manner that the official by whom the gift-deed was registered read the contents of the gift-deed but during cross-examination she conceded frankly that the same were not read over to her meaning thereby that she was not aware about the contents of the deed on which she had affixed her thumb-impression. She could not mention the names of persons who accompanied her when they proceeded to Court for execution of gift-deed.
She also stated that the gift deed was executed at the place where office of Tehsildar is located but the petition writer namely Abdul Qadir mentioned in an unambiguous manner that the place where gift-deed was written is about two furlongs away from the office of Tehsildar. Similarly Abdul Sattar petition-writer could not D mention that by whom the Jamabandi was produced and more so he did not know Mst. Resham Bibi and Mst. Aimna Bibi in person and, therefore, his statement up to the extent that Mst.Resham Bibi and Mst. Aimna Bibi affixed their thumb-impression on the gift- deed could not be relied. He remained absolutely silent regarding the source of identification of Mst. Resham Bibi or Mst. Aimna Bibi. Hayat Muhammad (D.W.3) did not know Mst.Resham Bibi and was present by chance in the Court on the day when gift-deed was executed and stood witness at the instance of Rehmat Ali. He knew nothing about Mouza Tolekee were the land in question was located.. He could not mention the name of Magistrate before whom gift-deed was got registered.
The statement of Hayat Muhammad (D.W.3) hardly renders any assistance to the case of appellant. Bashir Ahmad (D.W.5) could not mention that when Mst. Resham Bibi approached for his advice for donating the land in question by way of gift in favour of Khushi Muhammad. It is amazing that he could not mention even the month when it so happened. The statement of Muhammad Akbar (D.W.6) also renders little help to the case of appellant being his father-in-law but on the contrary renders support to the factum of compromise attempted to be made with Liaquat Ali for withdrawing the suit in lieu of some land. We have also examined the statement of Khushi Muhmmad (appellant) who has mentioned that the land in question was given to him by means of gift by his aunts namely Mst. Resham Bibi and Mst.Aimna Bibi. He has also mentioned that the contents of gift deed were read to Mst. Aimna Bibi and Mst.Rasham Bibi but the said aspect of the matter has been controverted by Mst. Aimna Bibi who mentioned while answering one of the questions during cross-examination that contents were never read. Their thumb- impressions must have got affixed on a paper but they were not aware that what was written in the paper contents whereof were admittedly not read to them and thus the genuineness and validity of gift-deed is not above board. The statement of Khushi Muhammad also lends support to the factum of attempt for execution of compromise with Liaquat Ali which cannot be without reason. In nutshell they could not prove the execution of gift-deed.
9. As mentioned hereinabove the plea of adverse possession has been taken in a crystal clear manner in para.9 of the written statement which is reproduced hereinbelow for ready reference:- "9. The answering, defendant, having been in adverse possession of the suit land on a claim of title for over 14 years after the gift, has acquired indefeasible title, assuming that the gift conveyed no title in the land to him."
10. There was absolutely no lawful justification to take the plea of adverse possession in view of the assertion that the land in question was transferred by means of a valid gift and the only irresistible conclusion would be that no such gift deed was ever executed. Had it been so there would have been no justification to press into service the plea of adverse possession: It is well-settled by now that "person who asserts ownership over a certain property by purchase would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. The logic behind is that a person cannot claim hostile and adverse possession over a property which he holds in his own right and such a possession lacks the essentials of adverse possession so far recognized for maturity of ownership on this count. (Abdul Majeed v. Muhammad Subhan 1999 SCM R 1245, Khuda Bakhsh v. Mureed 1999 SCM R 996, Ghulam Qadir v. Ahmed Yar PLD 1990 SC 1049, Mirza Ghulam Hussain v. Ch. Iqbal Ahmad PLD 1991 SC 290. In our considered view the plea of adverse possession and title by way of gift as asserted vehemently being contradictory are irreconcilable.
11. We have not been persuaded to agree with Mr. Gul Zarin Kiani, learned Advocate Supreme Court that in view of section 100, C.P.C. The concurrent findings arrived at by the Courts below cannot be reversed for the simple reason that no such bar has been enumerated in section 100, C.P.Cand in case of non-reading and misreading of evidence such findings could be reversed. In this regard we are fortified by the dictum laid down in case titled Durga Chowdhrani v. Jawahir Singh Chowdhry ILR 18 Ca1.23, Ram Gopal and another v. Shams Khatoon and others ILR 20 Cal. 93, Ravi Veraraghavalu and others v. B. Venkata Narasima Naidu AIR 1914 PC 87, Venkata Kumara Mahipati Suryarao Bahadur Garu v. Secretary of State AIR 1929 PC 152, Ramji Patel v. Rao Kishore Singh AIR 1929 PC 190, Midnapur Zamindari Co. Ltd. v. Secretary of State AIR 1929 PC 286, Abdul Majid and others v. Khalil Ahamd PLD 1955 FC 38, Karamat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191, Pathana v. Mst. Wasai and another PLD 1965 Sc 134, Deity Pattabhiramaswa my v. S. Hanymayya and others AIR 1959 SC 57 and Nazar Muhammad v.
Shahzada Begum PLD 1974 SC 22.
12. In the light of foregoing discussion it can be concluded safely that neither any gift-deed whatsoever was executed in favour of Khushi Muhammad by Mst. Resham Bibi nor conscious and unequivocal possession of land in question was handed over to Khushi Muhammad as no convincing evidence could be adduced in this regard. It may not be out of place to mention here that delivery of possession in a gift is as necessary as in a sale. Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143, Hedaya, Vol. III, Second Edition, page 482, Amir Ali's Muhammadan Law, Vol. I, Chapter V, Baillie's Digest of Muhammadan Law, Part 2, Second Edition, pages 203, 204, Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another AIR 1945 PC 54, Jamma-ush-Shittat, Sharaya-ul Islam, Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309 and Sadik Hussain Khan v. Hashim Ali Khan LR 43 IA 212. No doubt the Khasra Girdawari (D3-D6) pertaining to years 1953 and 1956 were produced but Khasra Girdawari pertaining to year 1952 could not be produced which speaks otherwise. The appeal being devoid of merit is dismissed with no order as to costs.