ASHIQ HUSSAIN Versus ALI AHMAD

The plaintiff, Ali Ahmad (hereinafter called the respondent No. 1) instituted a suit for possession of the suit land (detailed in the plaint) against the present petitioner and two others, now the respondents Nos.2 and 3. It has been alleged in the plaint that he being the owner of the suit land, entrusted its management to the petitioner who was a relative of his second wife, Mst. Hajran Bibi. It was further alleged in the plaint that greed prevailed upon the respondent No. 1, who got the. suit land fraudulently transferred in his name, vide a Mutation of Gift No.298 attested on 9-5-1962. He challenged the said mutation in the year 1973, by means of a declaratory suit, but after framing of the issues and adducing evidence by the parties, the learned Civil Judge, vide his order, dated 13-5-1978, rejected the plaint, under Order VII, Rule 11, C.P.C. It was held that a suit seeking a mere declaration without any prayer for, possession of the suit land is not maintainable in view of the proviso to section 42 of the Specific Relief Act. Soon after the passing of the aforesaid order, respondent No. l filed the present suit.

2. The suit was vehemently contested and the following issues were framed by the learned Civil Judge :--

(1) Whether the plaintiff had not gifted the suit land to defendant No.1 and all the proceedings regarding the alleged gift are based upon fraud? OPP.

(2) Whether the plaintiff has revoked the disputed gift, if so, its effect? OPP.

(3) Whether the suit is within time? OPP.

(4) Whether the description of the suit land is incorrect, if so, its effect? OPD.

(5) Whether the defendants Nos.2 and 3 are not necessary parties to the suit, if so, its effect? OPD.

(6) Whether the plaintiff has no cause of action? OPD.

(7) Whether the defendant No. l has per fected his title by adverse possession for a period of over 12 years? OPD.

(8) Whether the suit is, barred by principles of res judicata? OPD.

(9) Whether the plaintiff is estopped by his own conduct from filing this suit? OPD.

(10) Relief.

3. The parties have led evidence in support of their respective assertions and after perusing the same and appreciating the arguments of the learned counsel for the parties, the learned Civil Judge, vide his judgment and decree, dated 15-1-1985, dismissed the suit of the respondent No. 1, however, on an appeal, preferred by him, the learned Additional District; Judge, Sheikhupura, set aside the said judgment and decree, and consequently decreed the suit.

4. The petitioner has challenged the aforesaid judgment and decree of the learned Additional District Judge, through the present revision petition.

5. Only the findings on Issues Nos.2 and 3 were assailed as on the basis thereof, the leaned Additional District Judge has decreed the suit of respondent No. 1.

6. The learned counsel for the petitioner argued that both the Courts have concurrently held on Issue No. l that the impugned gift was valid as all the necessary ingredients of a gift i.e. declaration, acceptance, delivery of possession, are available in favour of the petitioner, but the learned Additional District Judge has reversed the findings of learned trial Court on Issues Nos. 2 and 3, on wrong premises of law and facts. The suit was patently time-barred (Article 91 of Limitation Act) and respondent No. I could not have revoked the gift in question, as the same, was valid, legally and factually, and respondent No. 1 himself appeared before the Revenue Officer and got transferred the suit land with his free will and consent. In support of his arguments, he referred to the following judgments:-

38 IC 794 (Oudh) (Mst. Lal Bibi v. Nawab Masum Ali Khan); AIR 1943 PC 253 (Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another); 1983 MLD 1676 (Muhammad Sadiq Khan etc. v. Muhammad Saleem Khan, and others); PLD 1977 Lah. 1347 (Muhammad Akram v. Kaka); PLD 1964 SC 143 (Shamshad Ali Shah and others v. Syed Hassan Shah and others).

7. Whereas, the learned counsel for the respondent No.1 argued that the respondent No. l had got his own children and grand children, and thus, there was no occasion for any gift in favour of the petitioner. He strongly argued with reference to para./section 167 of the Muhammaden Law (by Mulla) that donor may revoke the gift at any time even after delivery of the possession of the suit land. He further argued that the case of the petitioner does not fall within the exceptions incorporated in the said para. /section. He repeated his arguments with vehemence that no limitation runs in case of revocation of a gift and Article 91 of the Limitation Act as suggested by the learned counsel for the petitioner cannot be made applicable to the facts of the instant case.

8. I have given due consideration to the arguments of the learned counsels for the parties. As far as the Issue No.3 with regard to the Limitation, I am convinced to hold that the suit was time-barred, as Limitation Act provides for all the Acts complained of, a specified period to initiate an action in a Court of Law. Keeping in view the aforesaid judgments cited by the learned counsel for the petitioner, I am clear in my mind that Article 91 of the Limitation Act is fully applicable to the instant case. No doubt, the suit has been framed as a suit for the recovery of the possession of the suit land, but at the same time a reading of the plaint suggests that respondent No.1 intends to get the impugned mutation cancelled, set aside, or revoked. It is in para./section 167 of the Muhammaden Law (by D.F. Mulla) that, "a gift may be revoked by the donor at any time before the delivery of possession". But, as per its subsection (2), "subject to the provision of subsection (4) a gift may be revoked even after delivery of possession except in a few certain cases, and subsection (4) lays down that "once possession is delivered nothing short of a decree of the -Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor, nor even the institution of a suit for resuming the gift is sufficient to revoke the gift". Thus, it is clear from the language of the above section that a gift may be revoked at any time before the delivery of a possession i.e. no limitation is available. But if the. delivery of, the possession has taken place then the revocation is permissible only by means of a decree of a Court and for the purpose the word ' at any time' has not been mentioned, meaning thereby, for revocation, after delivery of possession, a suit must be governed by some Article of the Limitation Act, and as I observed above, the aforesaid judgments cited by the learned counsel for the petitioner support the view that Article 91 of the Limitation Act is applicable, which provides a period of three years for filing a suit for setting aside or cancellation of any instrument, in this case, impugned mutation of. gift, which was sanctioned on 9-5-1962 and the suit filed on 29-6-1978, was patently time-barred. This aspect becomes more significant as both the Courts below have concurrently held that the impugned gift was validly made in petitioner's favour and it was also found that possession of the suit land has been passed to the petitioner under gift. Bare solitary statement of respondent No.1 of having become aware of gift a few days before institution of suit, is not acceptable in the circumstances. Respondent No. 1, being aware of existence of instrument in the shape of a mutation from the date of its execution bound to have had gift set aside preliminary to his taking possession of suit land and in this set of circumstances, Article 91 is fully applicable. I cannot agree with the contention of the learned counsel for the respondent No. l that there is no limitation for revocation of a gift after delivery of possession. Limitation Act is so exhaustive that no act or action which could be taken note of as far as (humanly possible) was omitted and the cases/suits which do not fall under any specific category, the residuary Article 120 has been incorporated. If we take it as a simple suit for possession, for which a limitation of 12 years is prescribed under Articles 142 and 144 of the Limitation Act, even then the suit was time-barred. Possession under gift has been given in the year 1962, and the instant suit was filed on 29-6-1978. The learned counsel for the respondent No. 1 has pointed out that an application under section 14 of the Limitation Act, has also been moved alongwith the suit. To me, that application was misconceived and perusal of record shows that even that application has been withdrawn during the proceedings of the instant suit. Thus, seen from any angle, the suit of the respondent No.1 was liable to be dismissed on the point of limitation alone.

9. Now, I come to Issue No.2 which is again reproduced as under:--

"Whether the plaintiff has revoked the disputed gift, if so, its effect? OPP. "

10. It is worth to be noted that the entire evidence brought on record was to show that the impugned gift has been made in a clandestine manner, thus, the same was liable to be declared as such, which is evident from the wordings of Issue No.1. But, both the learned Courts below are unanimous to give a finding on this issue i.e. Issue No. 1 against the respondent No. 1. Then, what is left in the evidence. The respondent No.1 in para. 3 of the plaint writes:

In his statement as PW 2, he said :

And, the Additional District Judge has given his result in para. 10 of the impugned judgment. "I, therefore, hold that the filing of the suit, itself, is a sufficient declaration and the same was also re-affirmed by the appellant (present respondent No. 1) in his testimony in Court and, thus, findings on Issue No.2 are reversed". Thus it has been held in para. 15 of the impugned judgment, "in view of findings on Issue No.2. I accept this appeal, to the extent that the appellant is entitled to get a decree that the gift has been revoked". This finding of the learned Additional District Judge cannot be legally sustained as it is the decree of the Court which may revoke a gift and it is not an absolute right of the donor to claim that he revoked the gift and he be, thus, declared entitled to get a decree that he had revoked the gift. It is the Judge/Qazi who will take note of and explain the circumstances under which a decree may be passed revoking gift. In this context I find support from the judgment 38 IC 794 (Oudh) (Mst. Lal Bibi v. Nawab Masum Ali Khan): "Under the Hanfi Law revocation of a gift cannot be permitted unless the donor makes out a good case, and it will not be permitted if the wish to revoke as a result of mere whim or loss of tempe".

11. In this case, as observed earlier, the respondent No.1 endeavoured hard to get declared the impugned mutation void on the basis of fraud. But on his failure to get it done, he, by means of an alternative plea, took refuge under the garb of revocation which, in the given circumstances, he cannot. I asked the learned counsel for the respondent No.1, to explain what has kept him silent since 1962 to 1978. He said it was not 1978, but for the first time, he challenged the gift in the year 1973, by means of a civil suit, which has ultimately been met with failure as the plaint had been rejected. And seen from that angle, even that suit was filed after a period of 11 years. The learned counsel for respondent No. l has also submitted that initially, the petitioner had been giving ' Batai' to respondent No. 1, but when he allegedly, stopped paying the same, then it came to the knowledge of the respondent No. l that fraud has been (allegedly committed). But, this contention cannot be sustained on the basis of solitary statement of respondent No.1 as P.W.2. No evidence, whatsoever, has been led that 'Batai' has ever been paid to him by the petitioner. Particularly, when he alleged in the plaint that, "defendant No.2 (now the respondent No.2) Muhammad Ashraf was occupying the suit land as a tenant "The impugned mutation has been duly incorporated in the 'Jama Bandies' (record of rights) in favour of the petitioner who has been in possession of the suit land under the gift since 1962, and as observed earlier, it can hardly be believed that the respondent No.1 was not aware of that, particularly when both the Courts have concurrently held the gift was valid one and respondent No.1 miserably failed to prove that gift was made in his absence or through deceitful means. His presence was duly marked in the impugned mutation of gift which has been found correct. Now, the respondent No. 1 cannot bypass the same. Thus, the finding of the teamed Additional District Judge in this behalf, also suffers from legal and factual infirmities.

11. For what has been stated above I am of the considered opinion that the learned Additional District Judge, while reversing the judgment and decree of the learned trial Court, has committed material irregularity and illegality. This being so, the impugned judgment and decree of the learned Additional District Judge are set aside by allowing this revision petition, leaving the parties to bear their own costs.

H. B. T./A-131/L

Revision petition allowed.