JUDGMENT TANVIR BASHIR ANSARI, J.- Muhammad Tariq, Muhammad Tahir and Muhammad Shahid sons of Muhammad Yaqoob filed a suit for declaration against Muhammad Bashir son of Haji Feroz-ud-Din and Muhammad Yaqoob son of Choudhry Fulani Rasool to the. Effect that vide registered Tamlik Nama dated 30.11.1977 land measuring 200 kanals situated in village Rajawala Tehsil and District Bahawalpur was conveyed to the petitioners by their father Muhammad Yaqoob and that the registered gift deed dated 31.10.1977 by Muhammad Yaqoob defendant No. 2 in favour of defendant No. 1 was collusive, illegal and ineffective upon the rights of the plaintiff. The defendants filed separate written statements. The defendant No. 1 contested the suit and defended the registered gift deed dated 31.10.1977 in his favour while defendant No. 2 conceded the suit and denied the execution of the gift deed in favour of Muhammad Bashir defendant No. 1.
2. From the pleadings of the parties, the following issues were framed:- Issues:
(1) Whether the plaintiffs are owner in possession of the suit land on the basis of registered gift deed dated 30.11.1977? OPP
(2) Whether the gift deed dated 29.10.1977 registered is a forged and fictitious document and hence it is illegal and void against the rights of the plaintiffs?
(3) Whether the alleged gift deed in favour of defendant No. I by defendant No. 2 is illegal, void and ineffective against the rights of the plaintiffs for reasons stated in the plaint and it does not create any rights in favour of defendant No. 1 ?
(4) Whether the suit land was validly gifted away in favour of defendant No. 1 and he has become its owner? OPD No. 1.
(5) Whether the plaintiffs have no locus standi to bring this suit? OPD.
(6) Relief.
3. The Trial Court vide judgment and decree dated 19.12.1981 dismissed the suit with costs, basing its findings upon the evidence produced on issues Nos. 1, 2, 3 and 4. The plaintiffs filed an appeal against said judgment and decree which was accepted vide judgment and decree dated 4.10.1983 passed by an Addl. District judge, Bahawalpur. Consequently, the suit of the plaintiffs was decreed.
The present civil revision challenges the said judgment and decree of the first Appellate Court.
4. The record has been perused with the assistance of the learned counsel for the parties. It transpires that the case of the petitioner/defendant No.-1 is primarily based upon the assertion that vide registered gift deed executed on 31.10.1977 by Muhammad Yaqoob in his favour, land measuring two kanals had already been alienated through registered gift deed dated 31.10.1977 and the subsequent Tamlik Nama dated 30.11.1977 could be effected only to the extent of 198 kanals belonging to Muhammad Yaqoob and could not effect the right of the petitioner in respect of two kanals of land already gifted to the petitioner. The learned counsel for the petitioner, while going through the statements of DW-1 (Registry Clerk), DW-2 Stamp Vendor of Ex.D-1 (registered gift deed in favour of the petitioner dated 31.10.1977), DW-3 who identified the parties before the Sub- Registrar and DW-4 and DW-5 marginal witnesses of Ex.D-1 submitted that the gift deed registered on 31.10.1977 has been duly proved in favour of the petitioner, in order to prove the fulfilment of the three ingredients of gift, the learned counsel for the petitioner stated that the factum of physical possession has been proved by DW-5 and DW-6. However, after dilating upon this aspect of transfer of actual physical possession, the learned counsel for the petitioner took up the alternative plea that even if the petitioner is not found to be in actual physical possession, he was at-least in joint possession in the Khata after having received the land in dispute through gift. The learned counsel for the petitioner further contended that if Muhammad Yaqoob donor had denied the execution of the registered gift deed dated 31.10.1977, he ought to have filed a suit under Section 39 of the Specific Relief Act for cancellation of the said document within limitation, In this regard, he placed reliance on PLD 1971 Pesh. ISO. The reliance was also placed upon PLD 1995 Lah. 321. The learned counsel for the petitioner further placed reliance upon Ex.D-3 which has the effect of rectification to the extent of two kanals of land out of the total land measuring 200 kanals. He submitted that the said Ex.D-3 still subsists and has not been challenged by Muhammad Yaqoob the donor which shall amount to acknowledgement of the gift of two kanals in favour of the petitioner.
5. On the other hand, Mr. Jaffir Hashmi, Advocate, submitted that the three ingredients of gift including the transfer of actual physical possession of the property subject- matter of the gift was mandatory and in the absence of the transfer of actual physical possession the gift even if found to have been executed was ineffective as being incomplete. The learned counsel took the Court through the oral and documentary evidence produced by the parties to demonstrate that the execution of the gift deed dated 31.10.1977 was not proved. He also emphasised that there being no valid reason of creating a gift in favour of the petitioner brought out on the record, there is no reason to believe that the gift was ever made. Regarding the objection of the petitioner that it was incumbent upon the alleged donor Muhammad Yaqoob to have challenged the registered deed in his separate suit under Section 39 of Specific Relief Act, the learned counsel for the respondent submitted that the same was not necessary in view of the fact that Muhammad Yaqoob had denied the gift in the written statement in the present suit, In respect of the contention of joint possession the learned counsel for the respondent submitted that firstly joint possession of an incoming owner is dependant upon his acquiring a valid title in the joint property and it is only then that he tan claim to be in joint possession. He also stated that no overt-act of even joint possession has been placed on the record.
6. Arguments heard. Record perused.
7. The learned Trial Court after examining the respective evidence, oral and documentary produced before it rightly found that in order to constitute the valid gift there are three necessary ingredients which have to be proved. The legal question that falls for determination is as to what is the nature of possession which is necessary to constitute and complete a valid gift. The evidence produced by the present petitioner comprised of the statement of DW-1 Registry Moharrir. Other evidence such as statement of Ghulam Rasool Stamp Vendor DW-2 and the statements of the marginal witnesses proved the execution of Ex.D-1. Nonetheless, it remains to be determined as to whether, the manner in which the petitioner claims to have got possession complete the gift or not.
After arguing at some length the learned counsel for the petitioner Choudhary Naseer Ahmed, Advocate confined his submissions to the contention that even if actual physical possession is not proved to have been transferred in favour of the petitioner yet he would be considered to have been transferred joint possession and shall be deemed to be in possession for the purpose of the gift.
8. In reply, however, as has been rightly pointed out by the learned counsel for the respondent that as admittedly no actual physical possession in 'favour of the petitioner accompanied the gift, the gift would not be completed. From a careful perusal of the evidence it transpires that the gift deed in favour of the petitioner does not specify the description of the property which is the subject- matter of the gift. It is nowhere specified in which "Killa" or square the two kanals of land was situated, what were its- boundaries and whether it was suspectible of actual physical possession.
The contention of the respondent that in fact no deed was executed is not substantiated by the denial of the execution of the registered sale-deed dated 31.10.1977 nor is the other evidence negativing the registered gift deed dated 31.10.1977 produced by the respondent is reliable. Be that as it may, the fatal defect in the title of the petitioner is the non-delivery of actual physical possession to him. Other evidence such as Ex. P.4 also demolishes the case of the petitioner with respect to his actual physical possession.
9. The contention of the joint possession is not legally tenable, unless and until actual possession is shown to be delivered, In view of the above discussion, it is found that as the necessary ingredient of the delivery of actual physical possession is not proved, no valid title has come to vest in the petitioner in pursuance of the registered gift deed dated 31.10.1977. As a result the Civil Revision fails and is hereby dismissed. Parties to bear their on costs.