MUHAMMAD YUNUS SURAKHVI, C.J.---Both the above titled appeals Ifave been filed. With the leave of the Court, assailing the consolidated judgment and decree passed by the High Court on 21-12-2001, whereby the appeals filed by the appellants, herein, were dismissed with costs.
2. The necessary facts, for the disposal of present appeals, briefly stated, are that the plaintiff- appellant, Muhammad Shafi, filed a Suit No. 139 (Civil) to the effect that the land measuring 13 Kanals and 12 Marlas, comprising Khewat No. 11, Khata No. 26, Khasra No. 1, situate in village Mehtika---Gohra, Tehsil Bhimber, might be declared in the ownership and possession of plaintiff and pro forma-respondents and the defendants have no concern with the suit land. The gift-- deed of the said land executed on 4-4-1987 by defendant No. 1 in favour of defendants Nos. 2 to 4 was inoperative and ineffective on the rights of .Plaintiff and as such the same may be cancelled with a prayer for perpetual injunction that the defendants might be restrained from interfering into the ownership and possession of the suit land.
3. Another Suit No. 138 (Civil) was tiled by Muhammad Shafi and Fazal Karim to the effect that the gift-deed of the suit land measuring 13 Kanals and 12 Marlas, comprising Khewat No. 11, Khata No.26, Khasra No.1, situate in village Mehtika--Gohra, Tehsil Bhimber, executed by defendant No. 1 in favour of defendants Nos. 2 to 4 was illegal and inoperative on the rights of the plaintiffs as the gift-deed was executed without the delivery of possession to the donees and as such is not binding on the rights of plaintiffs and the same is liable to be cancelled.
4. Another suit was filed by Raja Muhammad Aslam Khan and others against Muhammad Shafi and others for possession of land measuring 592 sq. Ft. (total approximately 1 Kanal) but this suit was dismissed for default vide order of the Sub--Judge, dated 17-6-1997 and the order for dismissal in default stands intact as the said order has not been restored.
5. Both the suits filed by Muhammad Shafi were consolidated by the trial Court and after necessary proceedings and framing of issues, the trial Court disposed of the suits in a following way. The trial Court vide its judgment and decree, dated 15-4-1999 decreed Suit No. 139 (Civil) for perpetual injunction to the effect that land measuring 13 Kanals and 12 Marlas, comprising Khewat No. 11, Khata No. 26, Khasra No. 1, situate in village Mehtika-Gohra, Tehsil Bhimber, is in possession of plaintiff Muhammad Shafi and the defendants were restrained from forcibly occupying the disputed land on the basis of gift-deed, dated 4-4-1987. The gift---deed, dated 4-4-1987 was cancelled and the mutation of the land on the basis of said gift---deed was also cancelled.
However, the suit to the extent of declaration was dismissed.
6. In the other Suit No. 138 (Civil) a decree for , declaration was passed in favour of Muhammad Shafi and Fazal Karim to the effect that the gift-deed, dated 4-4-1987 relating to land measuring 13 Kanals and 12 Marlas, comprising Khewat No.Ll, Khata No.26, Khasra No.1, situate in village Mehtika- Gohra, Tehsil Bhimber; is illegal and against the facts and on the basis of non--delivery of possession is inoperative and ineftective as against the rights of plaintiffs and pro forma- respondents. A decree for cancellation of gift-deed was thus granted in favour of plaintiffs and pro forma--respondents by the trial Court vide its judgment and decree, dated 15-4-1999.
7. Feeling aggrieved from the judgment and decree of the trial Court, defendants Sardar Ali and others filed two separate Appeals Nos. 37 (Civil) and 38 (Civil), before the District Judge, Bhimber, who after consolidating them accepted both the appeals ' and consequently both the suits filed by Muhammad Shafi were dismissed vide judgment and decree, dated 30-3-2001.
8. Muhammad Shaft and Fazal Karim, being dissatisfied with the judgment and decree of the District Judge filed Appeal No. 25 of 2001 and Muhammad Shaft also filed another Appeal No. 26 of 2001 before the High Court which were also dismissed by the High Court vide its consolidated judgment and decree, dated 21-12-2001. It is the aforesaid judgment and decree of the High Court which are the subject-matter of present appeals.
9. In support of his case the plaintiff--appellant has examined Muhammad Fw.Al son of Rooda, Muhammad Ilyas, Pervez Akhtar son of Gul Muhammad and Fazal Karim, attorney for plaintiff.
Defendants-respondents examined Patwari of Mehtika Gohra, Khan Muhammad, Muhammad Aslam and Shabbir Ahmad as their witnesses. Apart from oral evidence the plaintiff-appellant also produced the documentary evidence in the shape of a copy of Jamabandi of the year 1980-81 wherein in the column bf ownership the land in dispute is shown as 'Shamilat Deh Hasab Rasad Khewat' and, in the column of possession it is entered as possessed by the owners. The total acreage of land is shown as 13 Kanals, 12 Marlas. The other document produced by the plaintiff is a copy of Khasra Girdawari of Rabih 1990 which is not exhibited in evidence but the same is a part of file wherein the land in dispute is shown as 'Shamilat Deh' Hasab Rasad Khewat possessed by Sardar Ali Khan son of Karam Dad Khan sharer. In the column of Kafiat an entry was made on 24-3- 1990 by the order of Tehsildar Settlement on the basis of which 1 Kanal of .Land was shown in possession of Fazal Karim son of Muhammad Shaft refugee wherein shops are shown to have been constructed and 1 Kanal, 2 Marlas of land is shown in possession of Muhammad Hanif and Muhammad Munir sons of Muhammad Hussain refugees. The rest of the land is shown in possession of owners in the village. The plaintiff has also produced a copy of 'Khasra Girdawari' of Rabih 1998 wherein Khasra No.1 in the column of ownership is entered as 'Shamilat Deh Hasab Rasad Khewat' and the possession of Muhammad Hanif son of Muhammad Hussain is shown as tenant-at-will on 10 Marlas of land wherein ' Ghair Mumkin Khata' is shown to have been constructed. The acreage of Khasra No.2 is 8 Kanlas and in the column of ownership it is shown as '
Shamilat Deh' Hasab Rasad Khewat Makbooza Malkan out of which 1 Kanal, 6 Marlas of land vide the order of Girdawar, dated 13-4-1998 is shown in possession of Fazal Karim, Muhammad Saleem sons of Muhammad Shaft tenants-at---will wherein shops are shown to have been constructed.
The acreage of Khasra No. 3 is shown as 3 Kanals, 10 Marlas and in the column of ownership it is entered as 'Shamilat Deh' Hasab Rasad Khewat Makbooza Malkan.
10. The defendants, apart from oral evidence, also produced documentary evidence Exh. D.A. Which is copy of Misl-e--Haqiat 1993-94. Khewat No. 11. Khata No. 53. In the column of ownership it is entered as Shamilat Deh Mazkoor. In the column of possession the entries are to the following effect:- The total acreage of the land in this Misl--e-Haqiat of 1993-94 is shown as 67 Kanals, 9 Marlas. In this copy the Khasra numbers have not been mentioned. The other document produced by the defendants is a copy of Misl-e-Haqiat 1993-94 which is Exh. D.B. The entries in this copy of Misl-e-- Haqiat 1993-94 Exh. D.B. And the copy of Misl-e-Haqiat 1993-94 Exh. D.A. Are totally different and in conflict with each other. In Exh. D.A. Khewat number is shown as 11 Khata No 53. In the column of ownership it is entered as Shamilat Deh Hasab-e-Rasad Khewat. In the column of ownership land measuring 11 Kanas, 10 Marlas of Khasra No. 1-min (,old), present 2 and 3, whereas Khasra No.1-min
(old) is shown as Khasra No.1 presently and its acreage is 10 Marlas which is being possessed by Muhammad Hanif son of Muhammad Hussain as tenant--at-will and in the said 10 Marlas of land Ghair Mumkin Kotha is stated to have been built. In Khasra Girdawari of Rabbi 1997 Khasra Nos. 2 and 3 measuring 11 Kanals, 10 Marlas, in the column of ownership are shown as Shamilat Deh Hasab-e-Rasad Khewat in possession of owners whereas Khasra No.1, measuring 10 Marlas, Ghair Mumkin Kotha is shown in possession of Muhammad Hanif son of Muhammad Hussain Jat, resident of village, tenant-at-will. In the column of ownership even this Khasra number is shown in possession of owners in village.
11. This is the sum total of documentary evidence produced by the parties. Apart from documentary evidence, the defendants, as stated earlier, have examined Patwari of village Mehtika Gohra, Khan Muhaad son of Abdullab, Muhmm-add Aalam Non of Sardar Ali and Shabbir son of Sher Muhammad as his witnesses.
12. Raja Muhammad Siddique, the learned counsel for the appellants, has tired to make head out of the tail of the oral evidence of the witness for defendants Muhammad Adam son of Sardar Ali, who has admitted certain suggestions of plaintiff in his cross-examination by saying that it is correct that plaintiff had constructed shops on the land in dispute, wherein there are five rooms and a verandah alongwith them but when we read the statement of this witness as a whole, he has made it clear at the end of his cross-examination that the shops, houses and the land in the use of school will be approximately one Kanal. Shop is built in a piece of land measuring one Marla. The learned counsel for the plaintiffs-appellants, at the very outset of his arguments stated at Bar that so far as the claim of his clients with regard to ownership of land in dispute and adverse possession is concerned, he would not argue the case on the above stated two points. However, he will argue the case with all the emphasis at his command with regard to the possession of the suit land with the defendants and they being allottees of the Shamilat Deh land in accordance with entries of Misl-e-Haqiat 1993-94 Exh. D.A., the defendants have become co-sharers in the suit land with the plaintiff as they have been allotted the share of a Hindu evacuee from Khata No.53, Khewat No. 11, the total acreage of which is 67 Kanals and 9 Marlas.
The learned counsel further submitted that the appellants being co-sharers in the Shamilat Deh land have become owners to the extent of share of Hindu evacuee as such their possession to the extent of their share shall stand protected.
13. On careful consideration of the arguments advanced by Raja Muhammad Siddique, the learned counsel for the appellants, it may be stated that so far as the execution of gift-deed and its cancellation is concerned, the same have no substance because these entries in favour of defendants do not relate to the land in dispute. The total acreage of this land is 67 Kanals, 9 Marlas and its Khata and Khewat numbers are different from the land which was gifted away. The other reason for dispelling the argument of the learned counsel for the appellants is that Exh D.A. And Exh.
D.B. Are copies of Misl-e-Haqiat 1993-94. Both the copies are produced by the defendants and the entries made in Exh. D.B. Are totally in conflict with entries made in Exh. D.A. In Exh. D.B. Out of Khasra No. 1 only 1 min (old), present Khasra number of which is 1 only 10 Marlas of land is shown in possession of Muhammad Hanif son of Muhammad Hussain as a tenant-at-will wherein Ghair Mumkin Kohta appears to have been constructed. Similarly in Khasra Girdawari 1997 only 10 Marlas of land is shown to possession of Muhammad Hanif son . Of Muhammad Hussain as tenant-at-will wherein Ghair Mumkin Kotha is constructed vide Exh. D.C. Raja Muhammad Siddique, the learned counsel for the appellants, emphasized much on the point that as the defendants have become co-sharers in the Shamilat Deh land which was in possession and ownership of Hindu evacuees and was allotted to them. Therefore, they had the right to protect their possession and they cannot be dispossessed from the land occupied by them except in due course of law is also not tenable for the simple reason that the counsel for the appellants has not raised this plea in his plaint.
14, We have carefully examined the allegations made In the plaint filed by Muhammad Shafi. In none of the para, foam 1 to 8 it was claimed by the plaintiff that on account of Shamilat Deh land being allotted in his favour which fell within the share of Hindu evacuee he had become co-sharer in the suit land and as such has a right to protect his possession. The claim of plaintiff for the cancellation of gift-deed mainly rests on the grounds; (i) that he is owner in possession of the suit land; (ii) that the gift-deed was executed without delivery of possession; and (i.e) that his possession on the suit land for being more than 12 years has ripened into ownership as he has constructed shops and houses on the suit land. In none of the paras. Of the plaint it was averred by the plaintiff that on account of his being co-sharer in the Shamilat Deh land he has interest to protect his possession whereas on the other hand the defendants have clearly raised a plea in the written statement that the plaintiffs are not owners in the village and they are refugees. It was further averred by the defendants that the plaintiff and pro forma-respondents in absence of defendants have forcibly occupied the land measuring 592 sq ft. And had constructed two shops for which proceedings against them are being initiated.
2000 YLR 2793 it was observed by this Court at page 323 of the report by way of following observations:-- ---................ By now it remains settled that a plea which has not been raised in the pleadings, the evidence in respect of that cannot be looked into. Therefore, in our view respondent pre-- emptor is also entitled to a decree for pre-emption in respect of suit land measuring 2 Kanals, 19 Marlas."
15. It may also be stated that it is a settled principle of law and rightly observed so by the High Court that in presence of documentary evidence which is of primary nature, the oral evidence- has no value as compared to the documentary evidence. The claim of Muhammad Shaft initially was that he was owner in possession of the suit land and in the alternative his possession had ripened into ownership. He also took the plea that the cause .Of action arose to him in 1950 but he did not mention as to how the cause of action arose to him. During the arguments he developed the case that the land was allotted to him as some portion of the land was in the ownership of Hindu evacuees. This plea was not at all taken up in his plaint nor an amendment was sought to this effect. Subsequently when the learned counsel for the appellants found that there are some entries of allotment in some Revenue. Record then he took the plea that .The land was allotted to the plaintiff prior to execution of gift-deed. After critical examination of evidence of both the parties we are of the view that the preponderance of evidence is in favour of respondents rather than the plaintiffs-appellants. It was for the plaintiff to prove the case on the basis of his own evidence as in civil matters the plaintiff has to stand on his own. Legs and should not take the benefit of the weakness of adversary's case.
1997 CLC 1768), it was held that it is a cordial principle of law that a plaintiff in order to succeed must prove his own case and stand on his own legs rather to take advantage of the weaknesses of the case of defendant or his adversary. .
1993 SCMR 356) it was laid down as follows:-- "The plaintiff is to succeed on the basis of his own evidence and not on the basis of weaknesses of the evidence of the defence. Civil matter is to be decided on the basis of preponderance of evidence and tie Court is to consider the entire evidence on record whether it is of the plaintiff or of both plaintiff and defendant in order to arrive at a correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance. "
Therefore, in our view, the plaintiffs---appellants have failed to prove their case against the defendants-respondents.
16. Another important factor which is to De taken note of is that the objection with regard to non- delivery of possession in a gift is always valid either on behalf of donor or his heirs. No other person is validly competent to raise the question of non---delivery of possession for the completion of the gift-deed. In a case reported as Abdul Sattar and others v. Tariq Aziz and others 1999 CLC 1146, it was resolved by this Court that except donor and his heirs no person can validly raise the question of non---delivery of possession for the completion of gift-deed but this does not mean that except donor and his heir no other person on earth can challenge the validity of the gift-deed on the basis of non-delivery of possession. If 'C', a donor for instance alienates the land in the ownership of ' A' to ' B' it cannot be said that except donor and his heirs no other could challenge the validity of. The gift-deed on the basis of non-delivery of possession. In such-like case ' A' who was owner in possession of the land was competent to challenge the validity of the gift-deed on the ground that donor was not competent to alienate the land as he was not the owner in possession of the land.
But in the case in hand the position is totally different. We have already discussed documentary as well as oral evidence on the basit of which it can safely be concluded that the plaintiff failed to prove that at the time of execution of gift-deed he was owner in possession of any of the Khasra numbers which were subject of gift-deed.
1993 CLC 1084) it .Was observed as follows:-- "It may be stated that it is well-settled principle of law that' objection regarding non-delivery of possession can only be raised by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff Alif Din or for that matter his legal representatives are not legal heirs of Mst. Bago. Thus the gift-deed in question could not be challenged on the ground of non-delivery of possession. We find support in our view from the cases reported as Muhammad Lal v. M6kho (PLD 1979 SC (AJ&K) 27), Kaiu Baig, Afzal Baig v. Gulzar Baig, Lai Baig (AIR 1946 Nag.
357), Fazal Ahmad v. Mst. Rokhi PLD 1958 Lah. 218 and Saida v. Pinnu PLD 1979 SC (AJ&K) 245, therefore, we are of the view that the argument that the gift-deed was invalid on account of non- delivery of possession is not tenable and is devoid of any merits."
17. In the light of what has been stated above, finding no force in these appeals, the same stand dismissed with no order as to costs
18. However, it may be observed that out of the gifted land from Khasra No. 1, Muhammad Hanif son of Muhammad Hussain is shown to be in possession of 10 Marlas of land wherein Ghair Mumkin Kotha is shown to have been constructed, whereas in Khasra No.2 whose acreage is 8 Kanals, vide the order of Girdawar, dated 13-4-1998, 1 Kanal and 6 Marlas of land is shown in possession of Fatal Karim and Muhammad Saleem sons of Muhammad Shafi, tenants-at-will, wherein shops are shown to have been constructed. These entries in Khasra Gridawries were effected in favour of appellants much later than the execution of gift-deed by the order of Girdawar. Or by the order of Tehsildar Settlement. The appellants may move for the correction of entires to the extent of 1 Kanal and 16 Marlas of land. The respondents may move the proper forum for the redressal of their grievance and may get their -land partitioned by metes and bounds. Till the partition takes place, the appellants may not be dispossessed from the land measuring 1 Kanal and 16, Marlas except in due course o; law. If in the partition proceedings the appellants fail to get any share, the authorities concerned shall hand over the entire gifted land to the respondents.
S.A.K./337/SC(AJ&K)