Syed ALI ABBAS vs P.O.P.

ORDER

' This second appeal assails Judgments and decrees dated 14-10-1997 and 10-4-2004 passed by the learned Civil Judge and learned Additional District Judge, Okara, whereby suit and appeal of the appellant were dismissed, respectively.

2. Precisely, relevant facts are that the appellant filed a suit for declaration with permanent injunction with the averments that Syed Muhammad Abbas Shah, his father had two wives and out of love and affection, he gifted his land in Depalpur to the appellant, whereas the other property was transferred in favour of the respondents, his other brothers. The offer of gift made by Syed Muhammad Abbas Shah was accepted by the appellant and possession under the gift was transferred to him. He further pleaded that his father was owner of agricultural property measuring 1233 Kanals 6 Marlas in Mouza Abal Wali, Tehsil Depalpur, District Okara, which he gifted in the name of his other son Syed Hussain Abbas vide six registered gift deeds and also transferred possession of the said land to him. Petitioner pleaded that since the land had already been gifted by his father subsequently as the same did not vest in him and thus prayed for adjudgment of the six gift deeds. As a consequential relief, he also prayed that the respondents be restrained from alienating the property by any means whatsoever and not to interfere in his possession thereover.

3. Respondents being defendants in the suit contested it by filing their written statement, wherein they raised certain Preliminary objections as well. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the matter, after doing the needful, vide this judgment and decree dated 14-10-1997 dismissed the suit of the appellant.

4. Appellant aggrieved of the decision of the trial Court dated 14-10-1997 filed a Regular First Appeal (R.S.A. No,633 of 1998) before this Court, which on account of enhancement of pecuniary jurisdiction of the District Courts was sent back to the learned District Judge for decision in accordance with law. Appellant could not succeed in his first appeal as the same was dismissed vide judgment and decree dated 10-4-2004 passed by the learned Additional District Judge, Okara. He has now filed instant second appeal for setting aside the concurrent judgments and decrees of the two Courts below.

5. Learned counsel for the appellant submitted that gift in favour of the appellant was oral but the same was proved through evidence on the file, which has not been considered by both the Courts below resulting into miscarriage of justice. He further contended that after offer of gift to the appellant which was accepted by him, possession of the land was delivered to him, making the gift complete and the donor was left with no title to again gift it out to the respondents, thus his suit has incorrectly been dismissed. It was also submitted that all the six gift deeds being unauthorized should have been adjudged, but a contrary view taken by the two Courts below is not sustainable.

6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record. Since it was argued that evidence on the file has been grossly misread, I examined the same by obtaining copies of the statements from the brief of the learned counsel for the appellant. There are three witnesses in support of the oral gift in favour of the appellant including his own statement. P. W .1, Syed Shaukat Hussain deposed that father of the appellant once stated in his presence that he will give land to the appellant. Similar is the statement of P.W.2, Syed Asad Raza, who also stated that father of the appellant once admitted in his presence that he will give land to him. None of these witnesses uttered a single word regarding offer of gift by Syed Muhammad Abbas Shah, its acceptance by the appellant or delivery of possession of the land under gift. As a matter of fact, both the P.Ws. Are absolutely silent about the fact of making of gift.

The solitary self-serving statement of the appellant as P.W.3 without any independent corroboration is not enough to make him a donee or for that matter to make him an exclusive owner on the basis of the alleged gift.

7. No doubt, gift could have been made orally, but it required a consistent and solid proof which lacks in the case in hand. It is a settled proposition of law that beneficiary of gift has to prove the gift as a transaction, by proving all the prerequisites of a Muslim gift as mandated by the Honourable Supreme Court in the case Alif Khan v. Mst. Mumtaz Begum and another 1998 SCM R 2124.

8. Syed Muhammad Abbas Shah was arrayed as a defendant in the suit (defendant No,2) who filed his written statement denying gift in favour of the appellant and also appeared in the witness-box when he was alive, as D.W.1 and unequivocal deposed that appellant is his son, but he is disobedient towards him and he has disconnected relations with him since last 30/40 years. He further stated that he never gifted land to him and did not deliver him possession of the same.

Appellant cross-examined his father and his cross-examined runes over to five pages, but nothing material came out of it. In this state of 'affairs, oral gift without proof has rightly been disbelieved by, both the Courts below. No misreading or non-reading of evidence could be pointed out during the scan of evidence, which was done with the help of the learned counsel for the appellant. Above all, no law point could be made out by the appellant for interference by this Court.

9. For what has been discussed above, I have no hesitation to hold that both the Courts below returned their findings absolutely is consonance with the evidence on the file and their judgments are neither arbitrary nor fanciful, in absence of which and without any law point, no interference in second appeal can be made by this Court. This appeal has no merit and is accordingly dismissed, in limine.