' Police Khan and 2 others respondents/plaintiffs filed suit against Mst. Bakht Jehan petitioner/defendant in the Court of learned Senior Civil Judge, Charsadda seeking declaration, permanent injunction and possession of the suit-property. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 18-7-2001. Feeling aggrieved with the said judgment and decree, respondents filed Appeal No,46/13 of 2001 in the Court of learned District Judge, Charsadda, which was allowed. The judgment and decree passed by the learned trial Court was set aside and the suit filed by respondents/plaintiffs was decreed in their favour vide judgment and decree dated 23-5-2002.
Being not contented with the judgment and decree of the Appellate. Court the petitioner has filed the revision petition in hand.
2. Mr. Murtaz a Durrani, Advocate, the learned counsel for " the petitioner, argued that Mst. Zarwar Jana who is the real mother of-the parties was turned out of their house by respondents/plaintiffs in her lifetime. She was kept by Mst. Bakht Jehan petitioner/defendant. Even after the death Mst. .Zarwar Jana the burial ceremony/expenses were borne by the petitioner. Since the mother was living with the daughter, therefore, in her lifetime she had executed a valid gift-deed which was duly registered under the law. The attorney of the petitioner namely Jan Nisar had appeared in Court and narrated about the execution of the gift. So far as the question of possession of the property in dispute is concerned, the learned counsel stated the possession of the suit-property was with the brothers of Mst. Zarwar Jana as admitted by Police Khan P. W. 2, they were holding the possession as 'Khata Sharik Bawaja Biradiry' and the said Khata was unpartitioned/undivided, the possession would be handed over to her after official partition takes place.
3. It was also argued that the suit filed by the respondents was barred by time. The gift-deed was registered on 8-9-1996, whereas the suit was filed on 24-2-2000. Under Article 92 of the Limitation Act the suit should have been filed within a period of three years, therefore, the suit was barred by time.
4. On the other hand Mr. S.M. Attique Shah, the learned counsel for the respondents argued that Mst. Zarwar Jana was herself not in possession of the property in dispute, hence she did not hand over the possession to Mst. Bakht Jehan, therefore, the essential ingredient of gift i.e, delivery of possession was not completed. The gift was, therefore, not proper.
5. It was also argued that Mst. Zarwar Jana was disabled having 85 years of age and very poor eye-sight, she was unable to go to the office of Sub-Registrar to execute the alleged gift-deed. P.W.
Police Khan categorically stated this fact but he WM not crass examined by the petitioner/defendant side which amounts to admission of this fact but the learned trial Court did not appreciate the same whereas the learned Appellate Court rightly appreciated this position.
6. It was also argued that the suit filed by the respondents was for declaration for their 4/5th share out of the suit-property, therefore, the same was within time.
7. I have heard the learned counsel for the parties and perused the record.
8. The question that requires determination in this case is as to whether the gift made by Mst.
Zarwar Jana in favour of petitioner/defendant was proper/legal or not. In order to prove that gift in favour of Mst. Bakht Jehan was valid it was necessary to prove the following ingredients:--
(i) Declaration.
(ii) Acceptance.
(iii). Delivery of possession.
9. So far as declaration of the gift by Mst Zarwar Jana is concerned, the same was properly made by her by presenting her before the Sub-Registrar Charsadda in presence of two marginal witnesses of the gift-deed Exh.P.W.-2/2 and (Exh. D.W.-1/3). The argument of the learned counsel for the respondents that Mst. Zarwar Jana at the time of making the gift was 80/85 years old, had very weak eyesight and was mentally not in a position to understand, has no force: ' Firstly, because the same is contradictory to the pleadings i.e, plaint filed by respondents/plaintiffs. In para.4 of the plaint it was stated that the petitioner/defendant had at the time of registration of gift-deed Exh.P.W.-2/2 had produced some other woman, therefore, the said gift-deed was based on fraud.
' Secondly, there is no evidence available on record to show that Mst. Zarwar Jana at the time of execution of gift-deed Exh.P.W. 2/2 was 80/85 years old, having weak eye-sight and mentally incapacitated to execute the said gift-deed. On the contrary the note of the Sub-Registrar shows that Mst. Zarwar Jana at the time of gift-deed was 60/65 years old. Said Umar D.W. 3 stated that Mst. Zarwar Jana was at the time of gift-deed 60/65 years old, she was in good health, active and she herself climbed the stairs to attend the office of Sub-Registrar, Charsadda and executed the gift-deed by puiting her thumb-impression in his presence. There is no rebuttal on the record and this witness was even not cross-examined with regard to the age, health and condition of Mst.
Zarwar Jana.
10. So far as the second ingredient of the gift-deed i.e, acceptance by Mst. Bakht Jehan is concerned, it was the bounden duty of respondents/defendants to prove that she had accepted the gift. Mst. Bakht Jehan neither appeared before the sub-Registrar, Charsadda nor she bothered to put her thumb-impression/signature on the gift-deed Exh.P.W. 2/2 (Exh.D.W. 113 also) in token of acceptance of the gift nor did she appear before the learned trial Court to record her statement with regard to the acceptance of the gift-deed. No doubt her husband Jan Nisar D.W. 2 was present at the time of registration of gift-deed in the office of Sub-Registrar, Charsadda and he had also appeared before the learned trial Court as her attorney and had placed on record special power-of-attorney Exh. D.W. 2/1, which was executed only for pursuing the case. He was not authorised through the said power-of-attorney to appear before the Registrar and record his acceptance of the gift on behalf of Mst. Bakht Jehan.
11. So far as delivery of possession is concerned, it is on record that the property in dispute was ancestral property of Mst. Zarwar Jana. She had inherited her share from her predecessor, the said property was joint and unpartitioned and the same was in possession of her brother and after the death of her brother, was in occupation of the L.Rs, of her brother. It is by now settled law that where the gifted land was undivided, share of a donor it was not a necessary requirement to deliver actual physical possession. In such cases the necessary requirement was only that donor should do all for parting with the ownership of the gifted land whatever was in her control. It is admitted between the parties that the land in dispute is a joint holding which has not yet been partitioned by metes and bounds. Therefore, delivery of possession in such a case was not necessary and gift out of the joint property is valid withOut formally delivering the possession to the donee.
12. The learned Appellate Court has not only appreciated the evidence on record, but also properly appreciated the law applicable to the case.
' I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the impugned judgment and decree passed by the learned Appellate Court. Resultantly the revision petition in hand is dismissed with no orders as to costs.