Facts giving rise to the present revision petition are that Faiz Ahmad, father of Muhammad Iqbal the petitioner herein was owner of the agricultural land measuring 44 Kanals, 3 Marlas, which he had allegedly gifted to his son through a Mutation of gift No.4950 attested on 31-7-1968. The said donor had died on 17-4-1983 and thereafter mutation of inheritance was attested in favour of legal heirs namely Mst. Nazir Begum widow, Muhammad Iqbal son and Mst. Balqees Bibi daughter. This gift was challenged by the plaintiff/respondent herein Mst. Balqees Faiz daughter of the donor through a suit for declaration alleging therein that her father had not gifted away the suit property to the plaintiff in any manner and the possession under the gift was not delivered to the donee. The land was being cultivated by the tenants and the defendant Muhammad Iqbal the petitioner herein had fraudulently got sanctioned the said mutation to deprive the plaintiff of the inheritance of her father. It was further alleged in the plaint that the land in dispute is joint Khata and she is entitled for 7/8 share equal to 7/24 shares. The plaintiff further averred that she came to know about the said mutation two months prior to the institution of the suit.
2. The suit was contested by the defendant/petitioner who filed his written statement denying the averments of the plaint. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:-- (1)Whether the plaintiff has no cause of action? OPD.
(2)Whether the suit is time-barred? OPD.
(3)Whether the suit cannot be proceeded in its present form? OPD.
(4)Whether the suit lacks proper court fee, if so, its effect? OPD.
(5)Whether the plaintiff is estopped by his words and conduct to file his suit? OPD.
(6)Whether Mutation of Hibba No.4950 dated 31-7-1968 was based on fraud, illegal, fraudulent, without jurisdiction, ultra vires, mala fide and have no effect upon the rights of the plaintiff? OPP.
(7)Whether the plaintiff is entitled to the decree as prayed for? OPP.
(8)Relief.
3. After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court vide its judgment and decree dated 20-10-1997, decreed the suit. Feeling aggrieved, the defendant/petitioner preferred an appeal which came up for hearing before the learned Additional District Judge, Wazirabad who vide his judgment and decree dated 27-1-1999 dismissed the appeal maintaining the findings of the learned trial Court. Both the judgments and decrees passed by the Courts below have been assailed through instant revision petition.
4. The learned counsel for the petitioner contended that the petitioner by producing sufficient evidence has established the sanctioning of the mutation of gift in his favour by donor Faiz Ahmad.
This mutation was not objected to by the donor during his lifetime who died 14/15 years after sanctioning of the said mutation. The gift in favour of the petitioner was in the knowledge of the plaintiff-respondent, she has also not objected to the same and the present suit was filed on 22-3- 1993, which is barred by limitation. He further contended that the limitation in this case shall start functioning from the date of attestation of the mutation and the declaratory suit filed to challenge mutation was clearly barred by time. He relied on a case titled as Ghulam Haider v. Hafiz Allah Bux 1985 SCM R 1218. Further contended that when the period of limitation once starts functioning it could not be suspended. In this context reliance has been made on the case of Noor Hussain Shah and another v. Muhammad Hussain Shah and 2 others PLD 1988 Azad J&K 1. Further argued that in the instant case the delivery of possession was not essential as that the subsequent delivery of possession had cured the defects of non-delivery. Reliance has been placed on a case titled as Manzoor Hussain Shah and 3 others v. Muhammad Siddique 2000 CLC 623 Lahore.
5. On the other hand, the learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner contending that no reasons had been established for making of gift in his favour by the donee depriving the plaintiff/respondent his real daughter.
Further contended that the delivery of the possession is essential requirement which has not been proved. Further contended that the onus to prove the valid gift was upon the petitioner/beneficiary the gift and he miserably failed establish all the three requirements of law for a valid gift. Further contended that the suit filed by the plaintiff/respondent was within limitation Right of the plaintiff in the inheritance of father was a continuous right and the time for filing suit for declaration was to start when the right to sue accrued to the plaintiff. Further contended that every such entry was denial of right of plaintiff and the plaintiff had option to file suit on every denial of the right and every such denial would furnish a fresh cause of action. He has placed his reliance on the cases of Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 .SCMR 1938. :Vovv
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. The questions boil down for determination in this case are that "whether Mutation of Hibba No.4950 dated 31-7-1968 was based on fraud, illegal, fraudulent, without jurisdiction, ultra vires, mala fide and have no effect upon the right of the plaintiff" and "whether the suit was time-- barred"?
8. The onus toy prove the Issue No.6 was placed by the trial Court upon the plaintiff and in support of her assertion, the plaintiff has taken the stand that her father had not gifted the land in favour of the plaintiff. It was incumbent upon him in the first instance to discharge the proof showing reasons for making the gift in his favour by the donor. Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct made without reasons or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. Since at the time of institution of suit, the donor was not alive and in that case, the responsibility lies on the donee present petitioner to justify the making of gift of the land in his favour depriving her daughter Mst. Balqees Faiz and widow Mst. Nazir Begum.
At the most, it can import the love and affection of the son but the same seems to be unreasonable.
9. To prove the validity of gift, the petitioner produced Ali. Ahmad D.W.1, Abdul Rashid D.W.2, Mst.
Nazir Begum D.W.3 and the defendant/petitioner himself appeared as D.W.4. The assertion of the petitioner is that the donor has gifted the property in dispute in his favour while they were sitting in the Baramada of his house in the presence of Ahmad Ali and Abdul Rashid D.W.1 and D.W.2. This deposition of the donee was denied by the D.W.2 who had deposed that at the time of making the gift they were sitting in a room (Baithak) of the house of the donor. He stated that he came to his house by his own accord and he was not summoned or called by the donor while Ali Ahmad D.W.1 deposed that Abdul Rashid and he were called by Faiz Ahmad, who went to him to bring to his house. Abdul Rashid contradicted the statement and stated that neither he was summoned nor Ali Ahmad D.W.1 was called by the donor. D.W.4/defendant/petitioner had also stated that Faiz Ahmad his father has called Rashid Ahmad and Ali Ahmad. There are material discrepancies and contradictions in the statements of D.Ws. And their statements are not worth reliance. The evidence when tested on the touchstone so laid down by the apex Court, edifice erected by the respondent crumbled down and falls to the ground like the house of cards and in no way, would be taken to have been established by the date and material on record.
10. There are three requirements to establish a valid gift, (i) declaration by the donor, (ii) acceptance of gift by the donee and (i.e) delivery of possession by the donor and if any of the three is missing the gift would not be deemed to be a valid. In this context reliance can be placed to the case of Mst. Gul Bibi and another v. Mst. Sajida Bibi 2000 CLC 399. The defendant/petitioner setting up alleged gift-deed in his favour while plaintiff/respondent who claimed property in question, on basis of inheritance denied alleged gift as also its validity. Onus to prove voluntary execution of such gift I rested heavily upon defendant who was beneficiary under the gift-deed. In this context reliance can be placed to the case of Riasat Ali v. Mst. Sardar Bibi and 7 others 1994 CLC 475. In order to confer title by way of gift on the donee, the same must be accompanied by delivery of possession of the property.
11. In the instant case, there is no proof of the fact that the donor had delivered the possession to the donee petitioner. It is an admitted position that the petitioner is not cultivating the land himself but the same was being cultivated by the tenant but no tenant appeared in the Court to establish that the donor has gifted away the property in favour of the petitioner. The petitioner has himself admitted that the land is being cultivated by the tenant and no physical possession was I delivered to him under the gift.
12. Both the Courts below have concurrently passed the findings of fact that there was no valid gift in favour of the petitioner and when there is a concurrent finding of fact by the Courts below, the same cannot be disturbed by the High Court either in second appeal or in revisional jurisdiction unless Courts below while recording findings of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse. The jurisdiction of High Court to interfere with concurrent finding of fact in revisional jurisdiction was narrower, it could only interfere with the orders of subordinate Court on the ground that Courts below had assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Courts below had acted with material irregularity affecting its jurisdiction in the case. In this context reference can be placed to the case of Haji Muhammad Din v. Malik, Muhammad Abdullah PLD 1994 SC 291.
13. Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the findings of the Courts below on Issue No.6 which are unexceptionable and are maintained.
14. As to the arguments of the learned counsel for the petitioner that the suit was barred by limitation, the answer is that the plaintiff/respondent has claimed the share of the land out of the property left by her deceased father. The right of plaintiff in the inheritance of father was a continuous right and under Article 120 of the Limitation Act, 1908 time for filing suit for declaration was to start when the right to sue accrued to the plaintiff. No right to sue until there was an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by defendant against whom the suit was instituted. Reliance in this context can be placed to the cases of Kaura and others v. Allah Ditta and others 2000 CLC 1018, Wali and 10 others v. Akbar and others 1995 SCM R 284, Atta Muhammad v. Nasiruddin PLD 1993 Peshawar 127.
15. Every entry made in the record of rights after every four years was denial of right of plaintiff.
Plaintiff had option to file suit on every denial of right and every denial would furnish to plaintiff a fresh cause of action, therefore, there is no option but to observe that the suit was validly instituted by the plaintiff/respondent within limitation. The observation of the Courts below on the question of limitation calls for no interference, hence affirmed.
16. For the foregoing reasons following the dictum laid down in referred precedents, this revision having no force is dismissed with no to costs.