1. MUHAMMAD SAYEED AKHTAR, J.-- Plaintiffs (respondents 1 and 2) filed suit on 12.1.1992 against petitioners/defendants for declaration to the effect that they were the owners-in-possession of 1/4th share in khata No. 10 land measuring 431 kanals and in "Shamlat Deh" khewat No. 12 situate in Mauza Punjey Wala, Tehsil Chiniot, District Thang. The "Hiba" mutation No. 173 attested on 21.5.1983 was illegal, without jurisdiction and ineffective upon the rights of the plaintiffs. By way of consequential relief a prayer for permanent injunction restraining the respondents from interfering with the possession of the plaintiffs was also made.
2. Allah Yar, deceased, the father of the parties had two wives, Mst. Bhag Bhari and Mst. Small. The plaintiffs/respondents are the sons and daughters of Allah Yar from Mst. Bhag Bhari. The petitioners are sons and daughters of Allah Yar from his second wife Mst. Small. It was averred in the plaint that the suit land was orally gifted to the plaintiffs (respondents 1 and 2) by their father out of love and affection and services rendered. The gift was accepted by the plaintiff and since then they are in possession of the same as owners. On the instigation of the defendants 2 to 5 defendant No. 1 the father of the parties gifted the same land to them vide mutation No. 173, dated 21.5.1983. The mutation of gift was illegal and ineffective against the rights of the plaintiffs.
3. The suit was resisted. Joint written statement was filed by Allah Yar, donor, alongwith other defendants wherein it was stated that the relations of the plaintiffs with their father were strained and that the plaintiffs were bent upon grabbing the land of Allah Yar (their father). It was specifically stated that the gift in favour of defendants 2 to 5 vide mutation was legal and valid.
4. Out of the divergent pleadings of the parties following issues were framed:--
(1) Whether the plaintiffs have got no cause of action or locus standi to bring this suit? OPD
(2) Whether the alleged gift deed is void qua the rights of plaintiffs? OPP
(3) Whether the suit has not been valued correctly for the purpose of Court-fee and jurisdiction if so, what is its valuation and effect? OP Parties.
(4) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD
(5) Whether the plaintiffs are entitled to a declaration with injunction in respect of the land detailed in the head-note of the plaint? OPD
(6) Relief.
5. The learned Trial Court vide its judgment dated 22.12.1993 dismissed the suit. An appeal was preferred before the Additional District Judge, Chiniot, District Jhang who vide his judgment dated 22.3.1995 allowed the same, reversed the judgment of the Trial Court and partly decreed the suit of the plaintiffs (respondents 1 and 2) declaring the "Hiba" Mutation No. 173, dated 21.5.1983 illegal on the ground that the gift was not proved; secondly that the delivery of possession to the donees was also not proved.
2. The learned counsel for the petitioner contended that there was no ambiguity in the judgment of the Trial Court. The gift was proved on the record and that the respondents had no locus standi to.
6. Challenge the gift in favour of the petitioners as the same was admitted by the donor. Reliance was placed on Waheed Gul v. Mst. Saida Jan (1998 M LD 3), Muhammad Sarwar and 6 others v.
7. Muhammad lqbal and 2 others (1997 M LD 130), Saida v. Pinnu and another (PLD 1979 SC (AJ&K)
8. 245) and Munawar Hussain Shah and 2 others v. Mst. Bilora Bi and 3 others-(PLD 1978 SC (AJ&K)
9. 33).
10. Conversely the learned counsel for the respondent vehemently contended that the gift was not proved on the record. He urged that the possession of the land was never delivered to the petitioners.
3. I have gone through the judgments of the Courts below and perused the record. The "Hiba" mutation No. 173, Ext.D-7, was sanctioned on 21.5.1983. Muhammad Hayat, plaintiff (respondent No. 2) filed an application on 20.6.1982 before the District Judge, Jhang under Section 62 of the Lunacy Act, 1912 for declaring his father as lunatic and for appointment of Manager for the management of the estate of his father, Allah Yar. The same was dismissed by the learned District Judge, Jhang vide judgment dated 12.4.1983, Ext. D-3. Failing before the District Judge, Jhang Muhammad Hayat, respondent No. 2 moved another application before the Deputy Land Commissioner, Ext.D-8 on 14.4.1983 for holding an inquiry and confiscation of the land. There is no documentary evidence of the oral gift made by Allah ,Yar in favour of the plaintiffs (respondents 1 and 2). In fact their father admitted that he had gifted/land in favour of the petitioners/donees.
11. Since the gift was admitted by Allah Yar, donor, in favour of donees/petitioners there was no question of its proof. The oral evidence of the P.Ws. About the gift in favour of the respondents 1 and 2 would not prove the gift in their favour particularly in the presence of the afore-mentioned facts and, gift mutation No. 173, Ex.D-7 in favour of the petitioners. The learned counsel for the respondents submitted that P.W.3 and P.W.4, the tenants of the land deposed that the land was gifted to the plaintiffs and they (tenants) were attorning to the plaintiffs, it proves that the possession of the suit land was not delivered to the petitioners. Since the "Hiba" in favour of the plaintiffs (respondents 1 and 2) has not been proved the statements of P.Ws. Prove nothing.
12. Learned Trial Court came to the conclusion that:- "As far as the other documents of revenue record which have been produced by the parties into their evidence are concerned, they also support the version of the defendants. Neither ownership, nor possession of the plaintiffs qua the suit land is proved on the record."
13. Admittedly the gift was of share in khata and also in favour of Mst. Smail, the second wife of the donor. Strict proof of delivery of possession in favour of a wife is not required. See Waheed Gul v.
14. Mst. Saida Jan (supra). The possession of the plaintiffs/respondents is not proved. Rather the documents Ext.D-1 and Ext.D-2 show the possession of the petitioners on the land. The Hon'ble Supreme Court In the case of Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others (PLD 1994 SC 650) observed that where the shares given to the donees be equal or unequal, where the donor has parted with complete possession in favour of the donees, the donees become the transferees of the property and the gift is complete. It was further observed as under:- "The principle of Mushaa has been applied liberally more suited to practicability, justice and equity.
15. Its rigidity has been relaxed. The strict principle of Mushaa could be applied only to gifts which are vague, incomplete or uncertain. This principle was considered in the Indo-Pak Sub-Continent and in Tara v. Jodha and others (1882 PR 160). It was held that "according to the Muslim Law though there is difference of opinion between the doctors as to the validity of a gift to two persons are more of property that admits of partitions, such a gift is not void, and possession clears the defect arising from the shares of the donees not having been defined."
16. The learned Additional District Judge has laid stress on the non-delivery of the possession of the suit land. The donor admitted in his life-time about the gift in favour of the petitioners. The donor in the instant case has done all he could do to perfect the gift by placing the donees in' a position to take possession of the suit land. In my view the gift stands proved in favour of the petitioners. See Saida v. Pinnu and another (supra) and Munawar Hussain Shah v. Mst. Bilora Bt (supra). The learned Additional District Judge completely misdirected himself as to the application of the law and has misread the written statement. There is another aspect of the case that the gift has been challenged during the life-time of the donor. In the case of Muhammad Sarwar and 6 others v.
17. Muhammad Iqbal and 2. Others (1997 M LD 130) it was observed that "A donor or any heir claiming through him (and not against him) has the locus standi to challenge the gift-deed for want of delivery of possession but when a presumptive heir challenges the gift on the basis of non- delivery of possession in exercise of his independent right, he could have no locus standi to challenge the gift on this score as this challenge is not through the donor but in spite of and against him."
18. It is also pertinent to mention here that it is admitted by plaintiff (respondent No. 2) in his cross- examination that earlier the donor had gifted away 3-3/4 squares of land in favour of the plaintiffs.
19. The plaintiffs/respondents want to keep the same but wish to deprive the petitioners of land gifted in their favour.
4. For what has been stated above this petition is allowed and the judgment 'of the learned Additional District Judge dated 22.3.1995 is set aside and that of the learned Trial Court dated 22.12.1993 restored.