Malik MUHAMMAD AZEEM Versus Mst. SAHIRA BIBI
MUHAMMAD SHERAZ KIANI, J.--- The captioned appeal has been directed against the impugned judgment and decree dated 12.10.2015, passed by the learned Additional District Judge, Muzaffarabad, whereby, judgment and decree dated 29.04.2015, recorded by the learned Senior Civil Judge, Muzaffarabad was maintained.
2. Precise facts forming background of the instant appeal are that Malik Muhammad Azeem, plaintiff-appellant, herein, filed a suit for declaration-cum-permanent injunction along with possession before the learned Senior Civil Judge, Muzaffarabad in respect of land comprising Survey No.801(old), 1295 min (new), measuring 4-1/2 marlas along with house and shop situated at Muzaffarabad against defendants-respondents, herein, on 12.11.2009, by claiming that he was owner to the extent of his share i.e. 3/4th and Mst. Sahira Bibi, widow of the deceased defendant-respondent No.1, herein, to the extent of her share i.e. 1/4th from the total land. It was his case that the gift deeds have been procured by the defendants-respondents Nos. 1 and 2, herein, fraudulently and through the exercise of undue influence to the extent of two marlas along with Shelter on 31.08.2009 and 1/2 marla shop situated at Muzaffarabad on 07.09.2009, respectively, as well as its mutations Nos.1197 and 1201, therefore, the same were liable to be set-aside. It is stated that defendants were requested time and again to accept his rights and get cancelled the deeds dated 31.08.2009 and 07.09.2009, however, they refused to do the needful, hence, the plaintiff was constrained to file the suit. The suit was resisted by defendants through written statement, wherein they refuted the claim of plaintiff appellant, herein. The learned trial Court in light of pleadings of parties framed as many as 07 issues and directed the parties to lead their respective evidence. After recording evidence and hearing the parties, the learned trial Court dismissed the suit for want of proof through its judgment and decree dated 29.04.2015. Feeling aggrieved from the aforesaid judgment and decree, appellant-defendant, preferred an appeal before the learned Additional District Judge, Muzaffarabad, on 06.05.2014, which was dismissed through the impugned judgment and decree dated 12.10.2015, hence, the instant 2nd regular appeal.
3. Ch. Muhammad Ismail, Advocate, the learned counsel for the appellant has filed written arguments, wherein, it is stated that both the Courts below have misread and non-read the evidence of the parties therefore, judgment and decrees of both the Courts below are liable to be set-aside. It is submitted that respondent No.2 donee is not a close relative of Abdul Aziz (deceased), hence, the gift deed in favour of respondent No.2 is liable to be cancelled, in presence of close relatives of the donor. It is further submitted that the gift deeds were shown as registered on the report of local commission, whereas, the said report was not written by the local commission himself. It is further stated that no register of the petition writer or Stamp Vendor was presented before the trial Court, hence, the respondents failed to prove authenticity of the gift deeds. It is further submitted that witnesses of the gift deeds are all interested witnesses and their testimony, as such, could not be given credence, particularly, when Abdul Aziz (deceased) was severe ill and 90 years old, thus execution of the gift deeds becomes highly doubtful. The learned counsel, in support of his contentions referred to and relied upon a case law reported as 2005 YLR 2388.
4. Conversely, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for respondents filed written arguments, wherein, it is submitted that there are concurrent findings recorded by both the Courts below against which this 2nd appeal is not maintainable. It is further submitted that the appellant challenged both the gift deeds and entries of mutations, but the trial Court after due process of law, dismissed the suit for want of proof vide its judgment and decree dated 29.04.2015, which was upheld by the 1st Appellate Court dated 12.10.2015, hence, the instant appeal is liable to be dismissed. It is further contended that appellant failed to point out any illegality or irregularity, misreading, or non-reading of evidence or record, committed by both the Courts below, hence, the appeal filed by appellant is not maintainable, hence, defended the impugned judgments and decrees with full force.
5. I have heard the learned counsel for the parties, perused the contents of appeal and examined the record made available with utmost care.
6. A contemplate perusal of record reveals that plaintiff-appellant, herein, filed a suit for declaration-cum-permanent injunction along with possession before the learned Senior Civil Judge, Muzaffarabad on 12.11.2009, by claiming that he was owner to the extent of his share i.e. 3/4th and Mst. Sahira Bibi, widow of the deceased defendant-respondent No. 1. herein, to the extent of her share i.e. 1/4th from the total land. It was alleged that the gift deeds were procured by the defendants-respondents Nos.1 and 2, herein, fraudulently and through the exercise of undue influence to the extent of two marlas along with Shelter and shop. Both the Courts below after due process of law dismissed the suit as well as appeal filed by plaintiff-appellant, herein, through the aforesaid .judgments and decree. The main contention of the learned counsel for appellant that respondent No.2 is not a close relative of Abdul Aziz (deceased) donor, hence, the gift deed in favour of respondent No.2 is liable to be cancelled, in presence of his close relatives, has no value in the eye of law, as the appellant failed to refer any law which may provide that gift deed can only be executed in favour of close relatives or persons who come in the prohibited degree relation. The other contention of the learned counsel for appellant is that witnesses of the gift deeds are all interested witnesses and their testimony, as such, could not be given credence, particularly when Abdul Aziz (deceased) was severe ill and 90 years old, and he executed the said gift deeds in such situation, has also no force because in support of this contention no medical certificate of the deceased from the concerned hospital has been produced which may show that at the time of execution of the deeds the donor was suffering a diseased which could create an impression of his immediate death (Marz-ul-Moat), so presumption would be that at the time of the execution of the deeds there was no apprehension or immediate danger of donor's death as a result of any such disease, hence, the trial Court has rightly dismissed the suit filed by appellant through its judgment and decree dated 29.04.2015, which was upheld by the 1st Appellate Court vide its judgment and decree dated 12.10.2015. It further reflects from the record that the plaintiff-appellant, herein, challenged the legality of the gift deeds dated 31.08.2009 and 07.09.2009, before the trial Court, but in para No.2 of second appeal the appellant on the basis of judgments and decrees passed by both the Courts below on 29.04.2015 and 12.10.2015, respectively, challenged the legality of the gift deeds dated 01.09.2009 and 15.09.2009, which are even not available in the record, neither they are subject matter and part of pleadings, even from this angle, the appeal is also not maintainable.
7. It is to be observed here that an owner can make a gift of his property to any person of his choice. The question of inheritance only arises to the extent of property left by the deceased owner. A property which was disposed of by the owner in his life time was no more available for the expected heirs. So the claim of the plaintiff-appellant for his share is misconceived. Furthermore, it is settled law that concurrent findings of facts recorded by the trial Court and the first appellate Court cannot be disturbed by this Court, unless an irregularity or illegality has been committed by the Courts below in appreciation of evidence and there is a case of misreading or non-reading of evidence, but no such eventuality has been pointed out by the learned counsel for the appellant, hence, the judgments and decrees of the Courts below are allowed to stand.
8. The epitome of the above discussion is that finding no substance in the instant appeal, hence, the same is hereby dismissed with costs.
SA/24/HC(AJ&K) Appeal dismissed.