Sardar Muhammad Raza Khan, JALLAH DIWAYA vs GHULAM FATIMA, Represented by Ahmad Sher and others

' JAVED IQBAL, ACTG. C.J.---This appeal with leave of the Court is directed against judgment dated 27-3-2003 whereby the revision petition preferred on behalf of appellant has been dismissed.

2. The leave granting order dated 30-11-2006 is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "The learned counsel argued that in view of provisions of section 129 of the Transfer of Property Act, 1882, it was permissible under Muslim Law to make an oral gift or even through an unregistered document where essential ingredients of gift were otherwise satisfied and that section 123 of the Act had no application in such cases. Reliance was placed on the case of Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCM R 154 and Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCM R 1403.

2. Leave to appeal is granted to consider the above submissions of the learned counsel. Since short points are involved, the office is directed to fix the appeal for final hearing on the present record within a period of six months."

3. Mr. Allah Wasaya Malik, learned Advocate Supreme Court entered appearance on behalf of appellant and contended strenuously that the gift deed (Exh.P/2) was not compulsorily registerable under section 17 of the Registration Act and valid title could have been created without getting it registered being not a mandatory requirement of the Islamic Law. It is next contended that the dictum laid down by this Court in case of Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCM R 1403 has been misinterpreted and misconstrued. It is also contended that Notification bearing No, 3097-8/15-11-LRL, dated 22-11-1978 has not been properly appreciated resulting in serious miscarriage of justice. It is further argued that the conclusion as arrived at by the learned High Court is not in consonance with the evidence which has come on record.

4. Qazi Khurshid Alam, learned Advocate Supreme Court entered appearance on behalf of respondents Nos.1 and 2 and controverted the view point as canvassed at bar by the learned Advocate Supreme Court on behalf of appellant and supported the judgment impugned for the reasons enumerated therein.

5. We have carefully examined the respective contentions in the light of evidence which has come on record and perused the judgments of learned trial and appellate courts as well as the judgment impugned. An in-depth scrutiny of the entire evidence which has come on record would reveal that the controversy revolves around the factum of gift allegedly made by Ghulam Rasool in favour of Allah Diwaya qua 33 kanals, 14 marlas of land and execution of sale agreement for 10 kanals of land in lieu whereof an amount of Rs,3500 was received by Ghulam Rasool. The execution of gift deed and agreement to sell were to be proved by Allah Diwaya being beneficiary and to substantiate his claim which is based on the alleged gift and sale. The appellant has failed miserably to prove the factum of gift and execution of agreement to sell. The learned appellate court has examined the entire evidence with diligent application of mind and the conclusion arrived at is strictly in consonance with the evidence which has come on record and reproduced herein below for ready reference:-- "13. As concern the arguments of learned counsel for the respondent-plaintiff I find no force in them for the reasons detailed by me earlier as well as for the reasons that from the statements of P.W.1 to P.W.7, execution of P.3 and P.4 could not be established. Statements of P.W.1 and P.W.2 are totally of no help because they are formal in nature. P.W.3 Arshad Gilani, has admitted that Ghulam Rasool was not known to him and he was not identified by any person before him, P.W.4 Jamaluddin admitted in plain words that Ghulam Rasool was not known to him. He admitted that witnesses were also not known to him. He failed to produce his petition writing register by saying that stand missed. It appears to me that he had acted in league with respondent and others to deprive legal heirs of Ghulain Rasool from his property. Statements of P.W.5, P.W.6 and P.W.7 are also of no use to the case of plaintiffs and I have recorded reasons on this count earlier. It is very strange that civil and criminal litigations were pending in between the parties but in spite of that Ghulam Rasool agreed to transfer 33 kanals and 14 marlas of land -in favour of Allah Diwaya, knowingly that he was owner of the same on the basis of a gift, executed in his favour about 20 years earlier by 'Mst.

Bhaghbari Exh.P.3 and Exh.P.4 appears to be fraudulent documents because there was no fun for Ghulam Rasool to come to another district than Bhakkar for execution of a simple stamp paper which of course was possible to be done in Tehsil Mankera in Bhakkar. Simple production of 2 P.Ws.

Is not sufficient to prove valid execution of Exh.P.3 and Exh.P.4 as is held by the learned trial Court. In case Ghulam Rasool would have gifted that land then there was nothing to restrain him to execute the sale-deed or to get sanctioned mutation by appearing before the Revenue Officer. It is very strange that instead of executing 2 documents, purpose was allegedly achieved just by executing one document in the shape of Exh.P.3, I, find that Allah Diwaya along with P.Ws. And petition writer created P.3 and P.4 just to deprive legal heirs of Ghulam Rasool deceased after his death . It is an admitted position that legal heirs of Ghulam Rasool were in possession of original identity card of Ghulam Rasool containing thumb impression. An application should have been made by the respondent for comparison of thumb impression available upon Exhs.P.l, P.3 and P.4 along with admitted thumb impression of Ghulam Rasool. No effort was made continuously possession was also firstly with Ghulam Rasool and thereafter, with his legal heirs. I find that in case gift would have been executed the name should have been incorporated in revenue record. It is also very clear to me that in case Ghulam Rasool would have intended to alienate the property, he must have executed a registered document. Arguments of learned counsel for the respondent-plaintiff misconceived and the same are accordingly repelled."

6. The determination of learned appellate court was upheld by the learned High Court vide judgment impugned which cannot be reversed without any cogent reasoning and lawful justification which are lacking in this case. It would be a futile exercise to examine as to whether the gift was got registered or not for the simple reason that its execution could not be proved.

There is, however, no cavil to the proposition that the gift deed was compulsorily register able under section 17 of the Registration Act and without getting it registered the title of the property in question could not have been conferred upon. The dictum as laid down in Maulvi Abdullah's case (supra) cannot be made applicable in this case because the facts in both the cases are quite distinguishable.

' The upshot of the above discussion is that the appeal being merit-less is dismissed.