On 6-12-1978 respondents Nos.1 and 2 filed a suit against the petitioners and respondent No,3. In the plaint it was stated that Mst. Ghulam Bi was the owner of the suit property comprising agricultural land and a house and that she gifted away the same in favour of her daughter i,e, respondent No,2 and her grandson, respondent No,1 vide registered gift-deed, dated 11-1-1978 and delivered possession. Mutation No,1076 was entered on 29-5-1978 but was cancelled on 30-5-1978, according to respondents Nos.1 and 2, at the behest of the petitioners by the officials of respondent No,3. It was also complained that after the death of Mst. Ghulam Bi the said petitioners had broken open the locks of the house and taken over forcible possession. With these averments a declaration was sought that they are the owners of the suit property and also sought possession of the house. The petitioners in the written statement admitted that the property was in the name of Ghulam Bi but they pleaded that they are in possession. They also denied the factum of the gift and objected that the gift was violative of the provisions of Cu M.L.R.115. Regarding the house they claimed to be in its adverse possession for more than 12 years. Issues were framed and evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 17-10-1981. The learned District Judge, Jhelum allowed the first appeal filed by respondents Nos.1 and 2 and remanded back the case on 8-5-1982. He also framed additional Issues Nos.3-A to 3-C and directed the learned trial Court to decide the matter afresh. After remand the learned trial Court recorded some more evidence and dismissed the suit vide judgment and decree, dated 26- 2-1987. This time the first appeal filed by respondents Nos.1 and 2 was allowed by a learned Additional District Judge, Jhelum on 29-5-1990 who has decreed their suit.
2. Learned counsel for the petitioners contends that the gift was bad qua the suit-land being in respect of an undivided share. Further contends that the gift was violative of the provisions of M.L.R.115. Also attacks the observations of learned Additional District Judge qua the matter of the possession of the house. Learned counsel for respondents Nos.1 and 2 argues that whereas the learned trial Court has failed to read the record, the impugned judgment and decree of the learned Additional District Judge is in accord with the pleadings as well as evidence on record.
3. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. The record reveals that the land was owned by one Dolu on whose death it devolved upon his widow (the donor), a daughter (respondent No,2) and a son namely, Fazal Muhammad. According to the petitioners Dolu was their paternal-uncle. It further is apparent on the record that the property was being held jointly by the two brothers and latter devolved upon their progeny. Some share out of the estate of said Fazal Muhammad also devolved upon the male collaterals. Thus, it stands proved on record that the donor, one of the donees i,e, respondent No,2 and the petitioners were co-sharers in the land. Ownership of the suit property including the house by Mst. Ghulam Bi is not denied. The gift is evidenced by a registered document (Exh.P.1). Mutation No,1076 (Exh.P.2) was entered or the basis of the registered document but the Revenue Officer proceeded to cancel the mutation finding the gift to be violative of M.L.R.115.
4.So far as the matter of possession is concerned, it is the petitioner's own case that they are in possession as co-sharers. As per the entries of Revenue Record present on the file the land is in joint possession of the parties. I may state here that Issue No,3-C was framed to cover the plea of adverse possession. Apart from the fact that there is I not an iota of evidence on record in support of the said plea, the said issue was neither pressed before the learned trial Court nor the learned D Court of appeal. This being the state of affairs on record the matter of possession becomes absolutely immaterial.
5. Coming to the said contentions of the learned counsel for the petitioner, so far as the first contention is concerned, the same is baseless. It is true that the subject-matter of the gift so far as agricultural land is concerned, is undivided share in the property but it is equally true that at the relevant time there was an embargo upon partition of the suit-land contained in M.L.R.115 and as such the gift would not be irregular. Needless to say that such a gift has never been said to be void.
So far as this Court is concerned, it has held that the provision is for the benefit of the donee and if he does not feel any difficulty in the matter then the question of invalidity of the gift on the touchstone of delivery or otherwise of the possession would not arise. Reference be made to the case of Hakim Khan v. Aurangzeb and another PLD 1975 Lah.
1170. Be that as it may, the donees being admittedly co-sharers can always get the possession now by filing a suit for partition. Nothing, therefore, turns on the said contention of the learned counsel.
So far as the said second contention is concerned, it has since been declared by the Supreme Court of Pakistan in the case of Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCM R 1935 that neither a Civil Court nor the Revenue Officer I, would be having jurisdiction to declare a transaction to be violative of provisions of M.L.R.115.
6. So far as the matter of the house is concerned, it is the case of respondents Nos.1 and 2 that the possession of the house was delivered but then it was taken over by respondents Nos.1 and 2. Now Muhammad Mumtaz, special attorney of respondents Nos.1 and 2 has stated as P.W.7 that the donor had delivered the possession of the subject-matter of the gift. He has rather explained that the donor was residing with her daughter in the house. No suggestion otherwise or in accordance with the plea of the petitioners has been given to this witness. Muhammad Yaqoob, petitioner has appeared as D.W.3 and has not said a word about the house and so is the case with D.Ws. 1 and 2.
In this state of evidence on record, the learned Additional District Judge cannot be said to have committed any error of jurisdiction in observing that the overall effect of the pleadings and the said' evidence on record is that respondents Nos.1 and 2 have been able to prove that the house was delivered to them at the I time of gift and the petitioner have not been able to state as to how they obtained the possession of the house if not in the manner stated by respondents Nos.1 and 2.
No other point has been urged. No case stands made out for interference with the impugned judgment and decree of the learned Additional District Judge within the meaning of section 115, II C.P.C. The civil revision is accordingly dismissed with costs.