1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 28-4-2000 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby Civil Revision No,372-D of 1987 filed by the petitioner was dismissed maintaining the judgments and decrees dated 19-12-1983 and 7-10-1987 passed respectively by the learned Civil Judge 1st Class, Chishtian, and the learned District Judge, Bahawainagar.
2. ' Facts briefly stated for the disposal of this petition are that the predecessor-in-interest of the parties Siraj Din was the owner of agricultural land measuring 470 Kanals, 18 Marlas situated in Mauza Chak Gajjani, Tehsil Chistian, District Bahawalnagar. He had three sons namely Muhammad Bakhsh, Elahi Bakhsh and Allah Bakhsh and a daughter Mst. Fatima Bibi. He allegedly executed a gift deed in favour of his two sons Elahi Bakhsh (respondent No,1) and Allah Bakhsh (respondent No,2) to the exclusion of his third son Muhammad Bakhsh and daughter Mst. Fatima Bibi. The former was allegedly given 370 Kanals, 18 Marlas of land while Allah Baksh was given 199 Kanals.
3. The said gift deed was got registered on 22-6-1977 before the Registrar at Bahawalnagar instead of Sub-Registrar, Chishtian, in whose territorial jurisdiction the property under registration was situated. Admittedly Siraj Din was more than 80 years of age at the time of registration of gift deed and expired 14 days thereafter on 6-7-1977.
4. ' The petitioner/plaintiff filed a declaratory suit in the Court of Civil Judge 1st Class, Chishtian, on 19- 12-1977 seeking cancellation of the alleged gift deed inter alia on the grounds that the donor at the time of execution of the same was insane and that the alleged gift deed was procured by playing fraud, collusion and impersonation with mala fide intention to deprive the other lawful heirs. It was also averred that the essential ingredients of the gift were not fulfilled as no possession was delivered.
5. ' Allah Bakhsh, respondent/defendant No,2, who was one of the beneficiaries of the gift deed as well as .Mst. Fatima Bibi, respondent No,3, conceded to the stance taken by the petitioner/plaintiff. The suit was, however, contested by respondent No,1 Elahi Bakhsh. Out of contradictory pleadings of the parties, issues were framed and the parties led their respective evidence. The learned Civil Judge 1st Class, Chistian, through his judgment dated 19-12-1983 dismissed the suit. An appeal was filed by the petitioner assailing the aforesaid judgment of the trial Court, which was dismissed vide judgment dated 7-10-1987 rendered by the learned District Judge, Bahawalnagar. Thereafter, the petitioner preferred Civil Revision No,372-D of 1987 before the Lahore High Court at Bahawalpur Bench, which too met the same fate as it was dismissed by a learned Single Judge through his judgment dated 7-4-2000, impugned herein. Hence, this petition for leave to appeal.
6. We have considered the contentions raised by the learned counsel for the parties and have gone through all the documents appended with this petition with their assistance. We must say at the very outset that the learned Single Judge of the Lahore High Court is not correct in holding that once the concurrent findings are recorded by the two Courts below i.e, the Civil Judge and the learned District Judge, the reversal thereof by the High Court does not fall within the scope of revisional jurisdiction to be exercised by it under section 115, C.P.C. It is pertinent to mention here that this is not an absolute rule. The High Court is well-empowered to reverse the findings of the Courts below if those are not supported from the record or the Courts below have misread the same resulting into serious miscarriage of justice. In the case of Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others (PLD 2001 SC 443) the learned Judges of this Court did not agree that the concurrent findings in any case could not be reversed by the High Court while exercising revisional jurisdiction under section 115, C.P.C. For. The reason that the scope of said section was not as narrow and limited as argued by the learned counsel. The learned Judges repelled this stance by observing as under:-- ' "We are of the considered opinion that where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law that can be reversed justifiably by High Court while exercising revisional jurisdiction as conferred upon it under section 115, C.P.C. And interference may be made in concurrent findings when the same are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken due to non-reading and misreading of evidence."
7. ' Reference is also made to Muhammad Bakhsh and 4 others v. Province of Punjab through District Collector, Multan (now Lodhran) and 2 others (1994 SCM R 1836), Anwar Zaman and 5 others v.
8. Bahadur Sher and others (2000 SCM R 431), Muhammad Siddique v. Muhammad Akram (2000 SCM R 533), Samar Gul and others v. Mohabat Khan and others (2000 SCM R 974) and Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCM R 1700).
9. ' It is, also to be appreciated that in the impugned judgment the High Court has mentioned the contentions raised by the learned counsel for the parties but has not at all adverted to their determinations and has not given its own reasons. It has simply been stated that the Courts below have critically scanned the entire evidence. Had the record and evidence been perused in their true perspective, it would have been apparent from the perusal thereof that the possession was not at all given to the alleged donees. We asked this very question specifically to the learned counsel appearing for the respondents to substantiate the possession of the disputed land by the donees. He remained answerless and could not make any reference to any documents. On the other hand learned counsel for the petitioner has made reference to certain documents showing the petitioner in possession of his own share stated to be given by the deceased, predecessor to the legal heirs according to Shariah. The aspect of delivery of possession was not at all considered in-depth by either of the Courts below. The stance of the learned counsel appearing for the respondents that in the gift deed the delivery of possession is so mentioned is not of any consequence. It has been held in the case of Ashiq Hussain and another v. Ashiq Ali (1972 SCM R 50) that mere recital in the gift deed that possession has been delivered to the donee would not be enough. The learned Judges of this Court observed as under:-- ' "Coming now to the question whether the gift deed has been completed by delivery of the possession of the property in dispute. 'It will be noticed that the land in dispute was in cultivating possession of the tenants.. Ashiq Hussain was a Mukhtar of Ashiq Ali and he was collecting the produce from them. Mian Muhammad Shafi, learned counsel for the appellants, has contended that in such circumstances a mere declaration in the deed that possession has been delivered to the donees is sufficient to complete the gift. This contention has no force. This aspect of the case was considered by this Court in the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143). It was held in that case that a mere recital in the gift deed that the possession has been delivered to the donees is not enough. In that connection it was observed as under:-- ' 'Even in the case of an ordinary donor it has never been that a simple declaration, as to delivery of possession in the deed of gift would effect a transfer or possession if land was in possession of tenants and in case like the present where the donor was in the hands of the donee any recitals at her instance would obviously be of less weight' ."
10. Reference is also made to the case of Azim Khan v. Malik Mobeen Khan and others (2001 SCM R 34) wherein it was held that mere recital in the deed about the delivery of possession would not be sufficient to prove the possession unless the delivery thereof is proved by cogent evidence.
11. ' In the case in hand admittedly the possession of the disputed land, the main ingredient of the gift in question, is missing, as such the alleged gift cannot be given any evidence. Apart from the aforesaid ground of possession on which the alleged gift can be set aside, there are also other attending circumstances which make the same as doubtful. Admittedly, the donor was living at the fag-end of his life having crossed the age of eighty years with respondent No,1 the latter must have operated certain influence upon him. The alleged gift was made on 22-6-1977 while the donor expired 14 days thereafter on 6-7-1977. This also creates doubts and gives support to the stance taken by the petitioner that during the last days the donor was not enjoying good health. There is another aspect of the case that the property under dispute was situated at Chishtian but the gift deed was allegedly got registered at Bahawalnagar, which is at a distance of more than 100 miles.
12. Nothing has come on record why it could not be got registered at Chishtian.' The alleged execution of the gift deed had been carried out in a highly dubious manner and the Courts below totally failed to appreciate all these factums. Furthermore, learned counsel for the respondents has failed to point out any valid reason why the present petitioner as well as his sister Mst. Fatima Bibi were deprived of their legal shares according to the Holy Qur'an by the deceased predecessor-in- interest particularly so when the other beneficiary namely Allah Baldish had denied the execution thereof.
13. ' Taking cumulative effect of the above determinations, we are clear in, our mind that the impugned gift cannot be sustained. We, accordingly, convert this petition into appeal and allow the same by setting aside the judgments of the Courts below. However, there will be no order as to costs.