MUHAMMAD Versus REHMAN
MUHAMMAD ALAM, J.--- This is a civil record appeal, whereby petitioners have challenged judgment/decree dated 27.09.2014 passed by the ADSJ, Skardu. Through the impugned order, learned first appellate court accepted the appeal, C.F.A. No.10 of 2014 of said court, dismissed the suit, Civil Suit No.43 of 2010 of the appellants/plaintiffs and set aside the judgment/decree dated (sic).
2. Through suit, Civil Suit No.43/2010 appellants/plaintiffs prayed for declaration and possession of suit land described in the plaint, on the basis of their rights to inherit the suit land. From averments of plaint it is evident that appellants/plaintiffs are real sons and daughters of Mst.Jamila, who is real sister of respondent/defendant. Per averments of plaint, it is further averred that suit land is in possession of respondent/defendant although the same is share of mother of appellants/plaintiffs. Through this suit plaintiffs/appellants further prayed for cancellation of mutation No.132 and mutation No.334. Respondent/defendant contested the suit and filed the written statement wherein averred that mother of appellants/plaintiffs gifted the suit land to the respondent/defendant, therefore appellants/plaintiffs have no right to inherit the suit land. After completing the trial proceedings, learned trial court decreed the suit in the following words:--
"Issue No.10/ Relief
16. What has been discussed above and in the light of available record and evidence the suit of the plaintiffs is decreed as the defendants have failed to establish the hibba nama in its true letter and spirit as per requirement of the law and mutation No.334 stand cancelled declaring illegal and attested against the fact. Parties to bear their own costs."
3. Learned counsel for parties advanced arguments pro and contra the divergent pleas of the parties. Learned counsel for respondent/defendant argued that a second appeal is incompetent against impugned order. On the other hand learned counsel for appellants/plaintiffs argued that second appeal is competent because a pure question of law is involved in the case. In the opinion of learned counsel for appellants/plaintiffs, the validity or otherwise of a gift, as averred by the respondent/defendant and denied by the appellants/plaintiffs, is a question of law. Counsel for appellants/plaintiffs is of further opinion that the question of valid gift or otherwise is of two fold, the first one is whether gift of suit property, which is admittedly not divided between the parties, is valid or not in the eye of sharie laws of the sect, that the parties belong to, even if the alleged gift is admitted. Second one is whether any gift was effected or not as appellants/plaintiffs are denying any gift etc? Learned counsel for respondent/ defendant was of the opinion that respondent/defendant has successfully proved a valid gift while counsel for appellants/plaintiffs is of the opinion that the evidence adduced in proof of alleged gift is not only insufficient but is false also.
4. I have very thoughtfully considered arguments of the learned counsel for parties and have also gone through material available on file. Admitted state of affairs is very important which goes as under:--
Relationship between parties as averred in the plaint has been admitted. Subject matter of the suit land admittedly part of the land that devolved on the parties to the case from their forefathers. Suit land is share of Mst. Jamila mother of the appellants/plaintiffs. In para No.2 of para wise written statement, respondent/ defen-dant has averred that appellants/ plaintiffs or their mother is not co-sharer of the respondent/defendant, while in answer to a question, in cross examination part of his statement, Mr. Muhammad Abbas, attorney for respondent/defendant stated that:--
The above sentence of attorney for respondent/defendant is clear admission of the fact that appellants/plaintiffs are not only co-heirers of the respondent/defendant but are co-sharers also. So, these very admitted facts are sufficient to hold that Mst. Jamila, mother of the appellants/ plaintiffs was entitled to the suit land as co-heirer of respondent/ defendant. Respondent/ defendant specifically pleaded that Mst. Jamila, mother of appellants/ plaintiffs gifted suit property to the respondent/defendant through gift deed, Exh. D/1. In my opinion burden of proof shifted to respondent/defendant to prove that he is the owner of suit land on the basis of gift deed Exh.D/1.
5. Learned two courts below have thoroughly discussed the question of validity or otherwise of Exh.D/1. Exh.D/1 is written in Persian and admittedly the only DW, Mr. Ali son of Makhmali has appeared in the court and has got recorded his statement in proof of the same. So DW-3, Ali son of Makhmali, is only witness in proof of Exh.D/1. In his statement before the court DW-3 has stated that suit land was in possession of respondent/defendant, when the gift deed was being written. The statement of DW-3, even if admitted correct, for arguments sake, shows that suit land was in possession of respondent/defendant while Exh.D/1 was being prepared. So, it is averred on the part of respondent/defendant that alleged gift (Exh.D/1) was prepared before separating the share of Mst. Jamila, mother of the appellants/plaintiffs. In these circumstances the questions for determination are whether any gift of suit property was even made or not? Or even, if made the same was valid in the eye of law. I do not rely on the only statement of DW-3 in proof of the alleged gift and also hold that any gift of any shari share of any person, in any property is illegal unless and until such share is separated and physical possession of the same is practically handed over to the person, who is entitled to the same. In this connection I rely upon the case law reported in:--
(i) 2005 SCMR page 135
(ii) 2015 SCMR page 1704.
6. Yet another very important aspect of the case is that Mst. Jamila, mother of the appellants/plaintiffs is real sister of Mst. Bano. We find mention of said two sisters of respondent in Exh.D/1. The learned first appellate court, who has passed impugned order has passed another order also dated 03.06.2014, on C.F.A. No.28/2014, whereby passed a decree in favour of Mst. Bano, second sister of Mst. Jamila. Mst. Bano filed another suit, Civil Suit No.34/2008 for her shari share. Respondent/ defendant contested the said suit also and pleaded gift of suit property of said suit on the basis of Exh.D/1. Order dated 03.06.2014 passed in C.F.A. No.28/2013, in continuation of Civil Suit No.34/2008 has attained finality, whereby the Mst. Bano obtained a decree for 40 kanals land against the (sic).
7. In the sequel of above discussion, I accept this appeal, set aside impugned order of first Appellate Court and decreed the suit of appellants/plaintiffs throughout. Judgment/decreed of learned trial Court upheld. Respondent/defendant to bear cost. File be consigned to record after completion.
SL/50/GB Appeal allowed.