SARDAR MUHAMMAD NAWAZ KHAN, J.--- This appeal has been directed against the judgment and decree of District Judge Bagh dated 30.3.2002 whereby, a judgment and decree recorded by Civil Judge Bagh dated 10.10.2001 was up-held..
2. The brief facts leading to the present appeal are that initially Mst. Jatti Khatoon W/O Shair-A.I Khan R/O Panali brought a declaratory suit against Muhammad Yaqoob and others for cancellation of gift-deeds and sale-deed dated 18.8.1983, 21.8.1983 and 15.'1.1984 respectively regarding suit land comprising survey Nos. 228/Min and 228/Min situate in village Panali Tehsil Bagh. Her claim was that she and her two daughters Mst. Gulzar Begum and Musawar Bi being sharer in the legacy left by her deceased husband Shair A.I were living together in the house constructed by her deceased husband over the suit land and the suit land was also under their possession. Muhammad Yagoob being their close relative through fraud and misrepresentation manoeuvred to obtain gift-deeds dated 18.8.1983 and 21.8.1983 in his favour. They were ignorant of the fact of registration of gift-deeds therefore, the possession over the suit land remained with them. The gift-deeds, according to her, not accompanied by the delivery of possession were void ab initio as such liable to be cancelled on the ground of fraud and non-delivery of possession.
When they came to know that Muhammad Yaqoob had practised fraud over them they demanded to get the so-called gift-deeds cancelled but the said person instead of doing so transferred the suit land to one Muhammad Ashraf s/o Gul Ahmed Khan on 15.1.1984. The plaintiff Mst. Jatti Khatoon seeks cancellation of gift-deeds and sale-deed through her suit. The suit filed by Mst. Jatti Khatoon was resisted by the opposite party on the ground that she had no cause of action to challenge the gift-deeds executed by Gulzar Begum and Mst. Musawar Bi because those upon whom fraud had been practised could challenge the gift-deeds. During pendency of this suit, Mst. Gulzar Begum and Mst. Musawar Bi also challenged the gift-deeds allegedly executed by them in favour of Muhammad Yaqoob through two independent suits, one by Mst. Gulzar Begum and other by Mst. Musawar Bi. They also put forwarded their claim as averred by their mother in her plaint. They sought cancellation of gift-deeds on the ground of fraud and non-delivery of possession at the time of execution of gift-deeds. The sale-deed in favour of Muhammad Ashraf Khan dated 15.1.1984 was also assailed through their suits. The defendants-respondents resisted their suits by claiming the gift-deeds to have been executed voluntarily by the said ladies and moreover, complete in all respect. The suits were requested to be dismissed on the ground that the gift-deeds were completed in all respect as the possession of the suit land was delivered to them at the time of execution of aforesaid gift-deeds. Another suit by respondents was also brought before the Trial Court against Mst. Jatti Khatoon and others seeking perpetual injunction to restrain them from interfering into the suit land as the respondents were lawful owners. Having possession over the suit land. All four suits were consolidated by the learned trial Judge and relevant issues were framed. The parties were directed to lead evidence in support of their respective claims and after conclusion of evidence the suits by Mst. Jatti Khatoon and her daughters Mst. Gulzar Begum and Musawar Bi were disallowed whereas the cross suit by the present respondents was decreed in their favour. Feeling aggrieved by the judgment and decree of the Trial Court, an appeal was brought before District Judge with no success. Hence this appeal.
3. The learned counsel for the appellants argued that both the Courts below by misreading and non-reading of evidence arrived at a wrong conclusion which resulted into grave injustice to the appellants. The appellants being illiterate, simpleton villager were influenced by the inducement.
They never executed gift-deeds in- favour of Muhammad Yaqoob - who being close relative of the vendors manouvered gift-deeds in his favour by influencing them. According to the learned counsel, the appellants were ignorant of the fact of alleged gift-deeds therefore, they remained in possession of the suit land and they are still in possession of the same as they being ' mother and daughters are living in the same house over the suit land raised by Shair A.I deceased. The fact of non-delivery of possession, according to the learned counsel, was also suggestive to say that no gift-deeds were executed in favour of Muhammad Yaqoob. The learned counsel during his arguments took the Court to different statements of the witnesses who appeared on behalf of appellants and also referred to documentary evidence placed on record showing factum of possession over the suit land. He placed reliance On a case-law titled Reshain Bibi and others v.
Walayat Hussain (PLD 1990 AJ&K 34) and contended that the evidence brought on record sufficiently proved the fact that the gift-deeds in favour of Muhammad Yaqoob were result of fraud and the said gift-deeds even if proved to have been executed by the appellants were in-complete as they were not accompanied by the delivery of possession to the vendee.
4. As against this, the learned counsel for the respondents submitted that both the facts i.e, execution of gift-deeds in favour of Muhammad Yaqoob and delivery of possession being question of facts were unanimously resolved by the Courts below therefore, the present appeal being second appeal was not permissible as neither any legal point was involved in this case nor any misreading or non-reading of evidence was committed by the Courts below. Both the Courts below by appreciating the evidence in the light of relevant law concurrently observed that the gift-deeds were executed voluntarily and the same were completed in all respect as the possession was delivered to vendee at the time of execution of gift-deeds, the learned counsel argued.
Muhammad Yaqoob being full owner of the suit land had rightly transferred it to Muhammad Ashraf through a sale-deed which by no means was liable to be cancelled the learned counsel maintained. He has also a referred case-law titled Mst. Amina Bibi and others v. Mumtaz A.I and others (1992 SCR 154) and Sawali and another y. Gul Muhammad and others (PLD 2000 Quetta 8) = (2000 CLR 969) and contended that the concurrent findings by the Courts below in a civil case were not challengeable unless some misreading or non-reading of evidence was shown to have been committed by the Courts below or some legal' point was involved to be attended to by this Court.
5. The record made available to this Court is examined with care and caution. As regards the suit by Mst. Jatti Khatoon, it may be observed that she had no cause of action to challenge the gift- deed allegedly executed by her daughters in favour of Muhammad Yaqoob Khan on the ground of fraud and non-delivery of possession. The persons (here daughters) have challenged the gift- deeds through their independent suits on the ground of fraud and non-delivery of possession therefore, her suit was rightly disallowed by the Courts below and the findings of the Courts below to her extent menit no interference by this Court. Her daughters have allegedly transferred their share and, if, the fraud is committed upon them or if the gift-deeds are in-complete they are there before the Court with their grievances. Mst. Jatti Khatoon is dead now and the present appellants are pressing their case in their own capacity and as legal heirs of deceased lady. Leaving aside whether or not the appellants are sole legal heirs of their deceased mother, the controversy required to be resolved by this Court is bout the execution of the gift-deeds and their legal position in the light of relevant law. Before passing to the merits of the case, it may be observed that a gift- deed if found in-complete on account of non-delivery of possession can be revoked by the donor.
Here in this case, Mst. Guitar Begum and Musawar Bi have challenged the gift-deeds allegedly executed by them in favour of Muhammad Yaqoob on the ground of fraud practised upon them by the said person being their relative. The relationship between the appellants and Muhammad Yaqoob Khan is an admitted fact. The case of the appellants, as averred in their plaint, is that they were living together with their mother and Muhammad Yagoob persuaded them to transfer their share in his favour through gift-deeds as he promised to look-after their mother and on this assurance, he took them to Bagh where he maneuvered to register gift-deeds un-conditionally i.e. In the name of Allah. However, they took a different stand during their evidence and maintained that they never went to Bagh to execute gift-deeds in favour of said Muhammad Yaqoob and these documents were result of fraud committed by the said person as they were registered behind their back. The appellants recorded their Court statements wherein they are contradicting their pleadings. The statements of other witnesses are also found to be contradictory to the averments made in their plaints. It is well-settled principle of law that the evidence contradicting the pleadings cannot be considered. The pleadings in this respect show that they executed gift- deeds in favour of Muhammad Yaqoob on an undertaking given to them to serve their mother during her life-time and consequently, they agreed to it but Muhammad Yaqoob respondent No. 3 herein managed to get register the gift-deeds in the name of Allah i.e. Un-conditional. The evidence on behalf of appellants suggested to say that they have set-up a different case from which they have pleaded in their respective plaints. Therefore, this evidence cannot be allowed to be credited in their favour. Both the Courts below have rightly observed in this regard and their concurrent findings in this respect merit no interference by this Court.
6. The next point which needs resolution by this Court is about the legality of gift-deed executed in favour of respondent Muhammad Yaqoob and sale-deed in favour of Muhammad Ashraf Khan respondent. Under law, a gift-deed is in-complete if it is not accompanied by the delivery of possession. A donor is required to divest himself of all domain over a gifted property at the time of execution of a gift-deed or he should do all what he can do at the time of gifting away the property. If the gifted property is under his physical possession; its delivery to the donee is necessary under law otherwise the gift is in-complete. However, if the property is not under exclusive or physical possession of the donor he can authorize donee to take possession and this act of donor would amount constructive delivery of possession. Here in this case, both the Courts below are found to have committed mis-reading and non-reading of evidence regarding factum of possession over the suit land. They have laid much emphasis about the fact that appellants Mst.
Gulzar Begum and Musawar Bi failed to establish their possession over the suit land at the time of execution of gift-deeds. The question here is that whether the donors voluntarily delivered their possession over the suit land to donee and whether this fact is established through the evidence.
Their case regarding delivery of possession is to be seen in the light of the averments in the plaint regarding influence- and inducement on the part of respondent Muhammad Yaqoob. The trail Judge resorted to the statements of appellants themselves wherein, according to him, they have accepted the possession of Muhammad Nazir respondent coupled with the fact that they failed to establish their possession over the suit land at or before the time of execution of gift-deeds. 1st Appellate Court without having due application of mind to the evidence on record about the factum of possession simply recorded his observation on the basis of entries regarding possession in the gift-deeds and sale-deed. According to him, the gift-deeds and sale-deeds were evident of the fact that possession was handed-over to the donee, It may be observed that mere recital in the gift-deed is not conclusive proof of the delivery of possession of gifted property as held in PLD 1990 AJ&K 34. Here in Azad Kashmir, it is a general practice that the petition-writers make entry in the gift-deed or sale-deed regarding possession to be handed-over to donee or vendor as the case may whereas the face of the matter is generally found otherwise. Thus, when the Courts below arrived at the unanimous conclusion leaving aside the relevant evidence and pleadings of the parties, their findings cannot be allowed to prevail. The respondents Muhammad Yaqoob and Muhammad Nazir have recorded their Courts statements. Muhammad Yaqoob categorically stated in his statement that he obtained possession of the suit land from the appellants 5/6 months after the execution of gift-deeds by them. Likewise Muhammad Nazir respondent stated ,before the court that the possession was taken by Muhammad Yaqoob after 10/15 days after the execution of gift-deeds. It means both the respondents are in agreement that the possession was lying with the appellants at the time of execution of gift-deeds and it was not handed-over to the donee at the time of execution. When the respondents themselves admit the possession of the appellants over the suit land at the time of execution of gift-deeds, the observations of the Courts below that the appellants could not prove their possession over the suit land at the time or before the execution becomes immaterial in the light of admission by the respondents themselves. The next question which arise is about the fact that whether the donee obtained possession after execution of gift-deeds' in his favour or the appellants voluntarily surrendered the possession in his favour in view of gift-deeds. The respondent Muhammad Yaqoob claim to have obtained possession after execution in presence of Kalu Khan and Shaira Khan r/o the vicinity but he failed to produce these two person in support of his claim. They could be the best evidence in his case.
Muhammad Yagoob being stranger to the suit land is never shown to be in possession of the suit land. The evidence on either side leads to a conclusion against him. The revenue record on either side does not speak of his possession neither he could lead any verbal evidence showing his possession over the suit land. His statement about taking over the possession after execution of gift-deeds runs-counter to the entries regarding factum of possession in the gift-deeds. He has transferred the said land in favour of Muhammad Ashraf Khan through a sale-deed and claims to have transferred the possession to Muhammad Ashraf vendee. Muhammad Ashraf did not appear as witness however, respondent Muhammad Nazir recorded his Court statement. It is on record that Muhammad Nazir is in possession of two Kanals out of survey numbers mentioned above on account of a sale-deed in his favour by Mst. Lnsha Bi another daughter of Mst. Jatti Khatoon.
Reference may be had to his statement and the entry in the revenue record showing his possession only to the extent of two Kanals. He and Muhammad Ashraf are co-sharers in the above-mentioned survey numbers however, Muhammad Yaqoob respondent is a stranger in the joint estate. The Trial Court is found to have relied upon mainly on the statement of appellants themselves wherein, according to the learned trial Judge, they have accepted the possession of Muhammad Nazir over the suit land. The relevant portion of their statements during cross- examination was examined in the light of their entire statements. It does not necessarily mean that the possession lies with Muhammad Nazir respondent. The appellants through their statement categorically stated that the possession of the suit land was and is With them and they never hand-over to Muhammad Yaqoob. The important aspect of this case is that when the respondents admit the possession of the appellants over the suit at the time of execution, it was incumbent upon them to prove delivery of possession in favour of Muhammad Yaqoob as the burden in a civil cases shifts to either party time to time. The appellants in the light of record, are found to have discharged initial burden regarding possession therefore, it stood shifted to respondents to prove delivery of possession. It is correct that no specific issue regarding delivery of possession of at the time of execution of gift-deeds has been framed, nevertheless issue No. 1 covers this fact especially so when the parties are found to be alive of this fact as pleaded in their pleadings.
7. The result is that the entire evidence when seen, properly read, and appreciated in its true perspective suggests to arrive at the conclusion that the possession over the suit land by the appellants was never delivered to the donee Muhammad Yaqoob at the time of execution of gift-deeds or afterwards meaning thereby that the gift-deeds in his favour were in-complete in the eye of law, hence liable to be cancelled. Both the Courts below are found to have mis-read the evidence in the light of the pleadings of the respective parties and the version taken by the respondents Muhammad Yaqoob and Muhammad Nazir in their Court statement about the delivery of possession. Therefore, the judgments and decrees of the Courts below are set-aside, the suits by the appellants Mst. Gulzar Begum and Musawar Bi are allowed consequently, the gift-deeds in favour of Muhammad Yaqoob, and sale-deed in favour of respondent Muhammad Ashraf also stand cancelled. The cross suit by the respondents for perpetual injunction is disallowed.