' This is plaintiff's revision petition and is directed against concurrent judgments and decree of the learned two Courts whereby her suit for declaration was dismissed.
2. The case of the petitioner in the plaint was that Nizam Din, her husband was the owner 9f the disputed house who had orally gifted the said house in her favour followed by a memorandum of gift dated 21-6-1984 (Exh.P.1). The donor however, died on 22-12-1990 and the said property was transferred in favour of the legal heirs vide Mutation No,6468 attested on 28-4-1991. Besides claiming declaration, Mutation No,6468 was also assailed with a prayer for permanent injunction by way of consequential relief restraining respondents Nos.1 to 4 from interfering in her possession.
3. It may be noted that respondents Nos.1 to 3 are the sons of the Nizam Din and Mst. Janat Bibi, respondent No,4, while respondents Nos.5 to 7 are the sons and daughter of deceased Nizam Din and Mst. Zubaida, the petitioner herein. Respondents Nos.5 to 7 were also arrayed as pro forma defendants alongwith respondents Nos. 1 to 4, respondents Nos.5 to 7 confessed judgment in their written statement while the suit was contested by respondents Nos.1 to 4. They objected that proper Court-fee had not been paid and the petitioner was stopped to file the suit. It was averred that the Hibbanama was a forged document which was fabricated after the death of Nizam Din.
4. Necessary issues were framed and the suit was tried. The learned Trial Court noted that P.W.1 and P.W.2 testified to the execution of the memorandum of gift but its date of execution was not established and it was incumbent upon the petitioner to have examined the stamp vendor and the scribe of Exh.P.1. It was further observed that according to Exh.P.1, an oral gift had earlier been made but none of the P.Ws. Deposed as to the actual date of the oral gift. Statement of P.W.4, Allah Bakhsh, Deputy Record Keeper was also noted according to which the register of stamp vendor, Muhammad Abdullah, was not found entered in the register of stamps for the year 1984 nor it was received by him in the charge. Accordingly, the suit filed by the petitioner was dismissed vide judgment and decree, dated 10-3-1993. She filed an appeal which was dismissed vide judgment and decree dated 30-10-1993. The learned First Appellate Court found that execution of Exh.P.1 was proved by the marginal witnesses but observed that the plaintiff did not produce any evidence in support of the oral gift made in her favour.
5. The learned counsel for the petitioner has contended that the learned two Courts have misread the record. He submitted that the petitioner had applied for summoning the petition writer, the stamp vendor, the Notary Public and the Record Keeper. This application was allowed and the said witnesses were summoned out of which the Record keeper appeared and was examined as P.W.4.
About the stamp vendor the process server reported that he had died. Mr. Shams-ul-Haq, Advocate, Notary Public, was also served. He reported that for the last about for and half years he was sick, unable to move and had abandoned the profession. About the petition writer the process server reported that he could not be found and inquiries made had revealed that he was sick and had left the work. According to him, he made all possible efforts to examine all the witnesses whose evidence was relevant but it could not be recorded for the reasons stated above. He maintains that by examining both the marginal witnesses of Exh.P.1 the petitioner had discharged onus of Issue No,1 and it was for the respondents to establish that Exh,P.1 was the result of forgery. According to him, once execution of Exh.P.1 was duly proved, its contents also stood duly proved which established an oral gift in favour of the petitioner and no further evidence of the oral gift was required. His further grievance was that there was no issue as to whether the oral gift was made by deceased Nazim Din prior to the aforesaid memorandum of gift.
6. On the other hand the learned counsel for the respondents submits that the matter stands concluded by concurrent finding of fact of the learned two Courts. He relied on the statement of P.W.4 as noted by the learned trial Court and statement of P.W.3, who stated that Mr. Shams-ul- Haq, Notary Public used to come to the Courts. He further maintains that none of the P. Ws.
Examined deposed as to the oral gift in favour of the petitioner.
7. I have considered the submissions made by the learned counsel for the parties and have perused the record. It will be appropriate to take notice of the evidence produced by the parties.
8. P.W. 1 was the Clerk of Court of the Senior Civil Judge, Jhang while Nizam Din, deceased was employed as a Daftari in the Court of the learned District Judge, P.W.2 the other marginal witness of Exh.P.1 was a neighbour of Nizam Din. Both of them personally knew Nizam Din and categorically stated that Nizam Din had executed Exh.P.1. It was attested by Mr. Shams-ul-Haq, the Notary Public.
His clerk was examined as P.W.3 identify the signatures of the said Notary Public since he had refused to appear. The petitioner appeared as her own witness as P.W.4 and supported her case.
9. In rebuttal, Abdul Rehman was examined as D.W.1. According to him, the house was constructed by the father of Nizam Din and both the wives of Nizam Din (i,e, the petitioner and respondent No,4) have been living in the said house. Muhammad Ramzan was examined as D.W.2. He is the real brother of Nizam Din. According to him, the house was purchased by his father on which he had constructed a house and thereafter, gifted it in favour of Nizam Din and that respondents Nos.1 to 4 were living in the said house alongwith the petitioner. Aleem-ud-Din, respondent No,2 appeared as D.W.3. He stated that their father Nizam Din married the petitioner in 1972. The house was constructed by his grandfather at the time of his father's death, the two widows of Nizam Din and their children have been living in this house.
9-A. Neither the learned trial Court nor the First Appellate Court disbelieved the two marginal witnesses of Exh.P.1. In fact none of the two Courts examined their evidence. The learned trial Court observed that not only the petitioner was bound to prove execution of Exh.P.1 but also to prove its execution on the alleged date by examining the scribe and the stamp vendor. The learned First Appellate Court found that there was no evidence of oral gift. Issue No,1 as framed was:--
(I) Whether Nizam Din deceased gifted the suit property to plaintiff vide memorandum of gift deed dated 21-6-1984? OPP ' By proving execution of Exh.P.1., petitioner had discharged the initial burden and it was for respondents Nos.1 to 4 to establish that it was forged and ante-dated of which there was no evidence. After holding that execution of Exh.P.1 was duly proved, the learned First Appellate Court should not have looked for evidence of oral gift, independently of Exh . P . 1 .
10. As far as statement of P.W.4 is concerned he stated that he had not received the register of stamp vendor for the year 1984 in the charge. With this statement he could not say that it was not entered in the register of stamp vendor.
11. For what has been stated above their revision petition is allowed, the impugned judgments and decrees are set aside and the suit of the petitioner is decreed, with costs throughout.