GHULAM GHOUS vs MUHAMMAD YASIN and another

' IJAZ-UL-HASSAN KHAN, J.--- Through instant petition leave to appeal is sought against the order of a Single Judge of Lahore High Court, Lahore, dated 16-4-2003 whereby petitioner's Civil Revision No,1329 of 2002 assailing concurrent judgments and decrees of the two Courts below, was dismissed in limine.

2. Shortly narrated the facts are that, Ghulam Ghous petitioner/ plaintiff filed suit on 20-3-2000 in the Court of Senior Civil Judge, Mandi Bahauddin, against Muhammad Yasin and Muhammad Yousaf, his step-brothers respondents/defendants, claiming declaration, injunction and possession in respect of suit property, detailed in the plaint. It was alleged that late Ghulam Murtaza, father of the parties to suit, was original owner of suit property; that it was alienated in favour of respondents/defendants on the basis of a registered gift deed dated 21-12-1981; that the deed was the result of fraud, collusion, undue pressure and without free consent of the donor; and that the deed was ineffective qua the rights of the petitioner. The petitioner was deprived of his legal share without any just cause.

3. The suit was resisted on all grounds legal as well factual. The property in suit was claimed to have been validly transferred in favour of the respondents/defendants on the basis of a registered "Hibanama". In view of the pleadings of the parties, following issues were framed for trial:--- "(1) Whether the suit is barred by res judicata? OPD ' Whether the plaintiff has come to the Court with clean hands" OPD ' Whether the plaintiff is estopped by his words and conduct of bring this suit? OPD ' Whether the suit of the plaintiff is false, frivolous and vexatious, if so whether the plaintiff is entitled to recover special costs? OPD ' Whether the suit is barred by time? OPD ' Whether the suit is incorrectly valued for the purpose of court fee and jurisdiction if so, what is the correct valuation? OPD ' Whether deceased Ghulam Murtaza alienated the disputed property in favour of defendants through a valid gift? OPD ' Whether the plaintiff is entitled to declaration as prayed for? OPD (8-A) Whether the defendant wilfully violated the order of Court dated 10-12-1997? OPD

(9) Relief.

4. After recording such evidence as the parties wished to adduce in respect of their respective stances, and hearing learned counsel for the parties in the light of the material placed before him, learned Civil Judge, Mandi Bahauddin, dismissed the suit vide judgment and decree, dated 5-5- 2001. The petitioner preferred an appeal thereagainst which did not succeed. It was dismissed by learned Additional District Judge, Mandi Bahauddin vide judgment, dated 4-1-2002. The petitioner tried his luck in Lahore High Court, Lahore by filing Civil Revision No,1329 of 2002 which also met the same fate through the order impugned.

5. We have heard Mr. Wali Muhammad Ch. Learned Advocate, for the petitioner and Mr. A.H.

Masood, learned Advocate-on-Record for the respondents. We have also examined the record.

6. Learned counsel appearing on behalf of the petitioner, attempted to argue that learned High Court as well as the two Courts below have not appreciated and discussed the material on record in its true perspective and have proceeded on wrong premises while deciding the controversy involved; that the concurrent findings are the result of complete misreading and non-reading of the record, and non- consideration of factual and legal facts which had direct bearing on the fate of the case. Concluding the arguments learned counsel submitted that it was for respondents to prove that Ghulam Murtaza, donor had validly gifted the suit property in terms of gift deed in question for which respondents neither produced any witness of the gift deed nor its scribe. In support of the last contention, reliance was placed on Abdul Ghafoor and others v. Mukhtar Ahmad Khan and 4 others 2006 SCMR.

7. In reply, learned counsel for the respondents opposed the arguments of learned counsel for the petitioner and supported the impugned order forcefully.

8. There appears to be no controversy between the parties that Ghulam Murtaza, was original owner of the suit property and he transferred it in favour of respondents on the basis of a registered gift deed dated 21-12-1981. It is also not denied that Ghulam Murtaza expired on 27-6- 1995 and suit was instituted on 8-11-1995. No doubt it is true that a gift executed by a sick person dependent at the mercy of his legal heirs under compelling circumstances, is illegal and is not binding upon donor but it is equally true that in the present case nothing exists on the file to indicate that Ghulam Murtaza was sick and infirm at the time me had been obtained by respondents through fraud, coercion and undue pressure. The mere assertion of the petitioner that a fraud had been practised upon him and he has been deprived of his share in the estate of his father, without a positive attempt on his part of substantiate the same, is of no consequence.

Needless to add that it is very easy to assert fraud but it is difficult to prove the same. The evidence produced by the petitioner does not prove that fraud had been practiced upon him and gift deed was not executed with free consent. It was argued by learned counsel for the petitioner that offer and acceptance was not duly made during the proceedings of the alleged gift making the whole transaction doubtful. The submission of learned counsel is misconceived. Gift was made by father of his real sons. It was made through registered gift deed which was subsequently incorporated in Revenue Record, through mutation. The possession was also delivered as per Revenue Record to the donees. Having regard to facts and circumstance of the case we have come to the conclusions that said gift was made validly by the owner in favour of respondents to the exclusion of the petitioner. During his life time neither the original donor revoked the gift nor he made any indication of any fraud or undue influence exercised on him to constituted the said gift. It may not be out of place to mention here that relations between the donor Ghulam Murtaza and petitioner remained embittered throughout and they were bound down under the security proceedings.

9. No exception could be taken to the conclusions recorded by the learned High Court concurring with the findings of the Courts below. The impugned judgment did not admit of any interference.

The conclusions are arrived by the learned High Court is strictly in consonance with law as laid down by this Court on various occasions.

10. Learned High Court has recorded detailed judgment dealt with the controversy in a comprehensive manner, leaving no room for further consideration. The operative portion is reproduced below which reads:--- "(3) Learned counsel for the petitioner has been heard and the entire record with his assistance has been perused. The question in issue is execution of the gift by Ghulam Murtaza in favour of the defendants on 21-12-1981. It is established on record that the present petitioner did earlier file civil suits against Ghulam Murtaza which were dismissed upto the appellate stage. The present suit was filed on 8-11-1995. Ghulam Ghous, petitioner/plaintiff appearing as P.W.1 admitted possession of the defendants over the suit property for the last 13/14 years which gives corroboration to the fact that the defendants were put into possession of the property at the time of the gift made by Ghulam Murtaza in their favour. Essentials of the gift are offer by the doner and acceptance of the gift by the donee coupled with the delivery of possession. All these ingredients stand established and proved on record. The suit brought by the plaintiff in the year 1995 is in view of the above said fact of execution of gift deed coupled with the delivery of possession in the year 1981 is apparently barred by limitation. Apart from it there are concurrent finding of facts and no case of misreading and non-reading of evidence on record is established."

11. In view of the above perspective, finding no substance in this petition, we dismiss the same and refuse to grant leave.