REHMAT ALI Versus MUHAMMAD ISHAQ

Rehmat Ali and others (seven petitioners) have filed this revision petition to assail the judgment and decree of the District Judge, Sialkot dated 8‑1‑1985 whereby their appeal from the judgment and decree passed by the Civil Judge 1st Class, Narowal on 20th of November, 1983 dismissing their suit, was dismissed with costs throughout.

2. Agricultural land measuring 56 Kanals and 2 Marlas situate in Mauza Fatta Toor, Tehsil Narowal, District Sialkot was sold by its owners to the respondent by a sale‑deed registered on 3rd of September, 1979 ostensibly for Rs.60,000. The petitioners instituted a suit to pre‑empt the sale claiming right of pre‑emption on the ground that they were owners in the estate whereas the respondent lacked this qualification and alleging that the land had been sold for Rs.35,000 but inflated sale price has been mentioned in the sale‑deed to defeat their right of pre‑emption.

3. The respondent in his written statement contested the suit controverting both the above allegations. He averred that he too was an owner in the estate. He raised preliminary objection also to the effect that the petitioners had no locus standi to file the suit, that they were estopped by their conduct from bringing the suit, that the suit has not been properly valued for purposes of court‑fee and jurisdiction, that the suit was barred by time and that the suit was vexatious and the petitioners were liable to pay special costs under section 35‑A, C.P.C.

4. The trial Court framed the following ,issues:‑

.(1) Whether the plaintiffs are estopped to bring the suit?

(2) Whether the suit has been correctly valued for court‑fee and jurisdiction, if not what is the effect?

(3) Whether the plaintiffs have a superior right of pre‑emption?

(4) Whether a sum of Rs.60,000 was fixed in good faith or actually paid as price of the suit land?

(5) What was the market value?

(6) Relief.

5. The parties adduced their evidence for and against the issues. The learned trial Court after appraising the evidence found issues Nos . 1 and 2 in favour of the petitioners and issues Nos.3 and 4 against them and on the basis of these findings dismissed their suit. Feeling aggrieved, they preferred an appeal which was heard by the learned District Judge, Sialkot who vide his judgment and decree impugned in this revision petition concurred in the findings of the learned trial Court and dismissed their appeal with costs throughout. ????

6. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioners has not in his arguments assailed the finding of the learned Courts below on issue No.4. He has, however, strenuously challenged their concurrent finding recorded on issue No.3.

7. It is not in dispute that the petitioners are owners in the estate. The respondent also claims to be an owner in the estate on the basis of a gift by Ali Muhammad, his uncle and father‑in‑law, of his land in the estate prior to the sale sought to be pre‑empted in this case. In order to substantiate his claim, the respondent produced Ali Muhammad, the donor, as D.W.3. He deposed in his examination?in‑chief that the respondent was an owner in the estate prior to the sale of the land in dispute to him. In his cross‑examination he stated that about a month before the sale of the land in dispute to the respondent, he had gifted his land in the estate to the respondent in order to enable him to purchase land in the estate. He further stated that on the day the deed of gift was executed, it was reported to the Patwari who entered the same in his roznamcha. According to him, after the gift, girdawari of the land was made in favour of the respondent. Ghulam Hussain D.W.1 also deposed in his cross?examination that the respondent was in possession of the land gifted to him and that this gift was made in his favour before he purchased the land in dispute. After the conclusion of the oral evidence, learned counsel for the respondent tendered in his statement a copy of the gift deed D .2. This copy on its reverse bears the following endorsement of the learned Civil Judge:

"The original has been exhibited in civil Suit No. 551 of 1982, Rehmat v. Ishaq. Compared with the original and found correct."

8. No objection to the admissibility of the above copy was raised on behalf of the petitioners at the time it was tendered in evidence. This gift deed is scribed on a four rupees stamp paper. It is not registered.

9. In rebuttal to the above evidence, the petitioners examined three witnesses including Rehmat Ali, one of them. Ghulam Nabi P.W.1 did not say anything about the gift. He simply denied in his cross‑examination that the respondent was also an owner in the estate. Rehmat Ali, one of the petitioners, in his cross‑examination denied that Ali Muhammad had made a gift of his land to the respondent. According to him, the gift was in fact a sale.

10. It is not controverted that Rehmat Ali, one of the petitioners, had brought a suit for possession by pre‑emption alleging that the land purported to have been gifted to the respondent by Ali Muhammad was in fact sold to him. The original of the copy Ex. D.2 was tendered in evidence in that suit. The petitioner failed in that suit. The decision of the trial Court was upheld by the appellate Court on appeal by him.

11. The contention of learned counsel for the petitioners is that gift deed D.2 was admitted in evidence in violation of section 67 of the Evidence Act (Article 78 of the Qanun‑e‑Shahadat, 1984) and though the document was admitted in evidence without objection, yet this objection can be taken into consideration at this stage as held in Messrs Bengal Friends & Co. Dacca v. Messrs Gour Benode Saha & Co., Calcutta and another PLD 1969 SC 477. He further contends that as the document is not registered, no claim can be founded thereon. He has cited Mst. Noor Jehan v. Feroza and others PLD 1967 Azad J&K 85 wherein it has been held that section 129 of the J&K Transfer of Property Act keeps intact the provisions of section 123 which require that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument. He also relies upon Qudratullah v. Ghulam Jan and others PLD 1966 (W.P.) Pesh. 85 wherein it has been observed that reconveyance of an immovable property of the value of Rs.100 and upwards by an unregistered document is inadmissible in evidence.

12. The admission of a document in evidence without objection from the opposite side dispenses with the requirement of its formal proof. It was observed by the Privy Council in Gopal Das v. Shri Thakurji AIR 1943 PC 83 that:‑ "where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."

These observations were followed in Abdullah and others v. Abdul Karim and others P L D 1968 SC 140. Besides, the respondent did not rely merely on the gift deed D.2. He produced the donor also as DW.3 who vouchsafed for its authenticity and regularity of the gift recited therein. After the evidence of the respondent, the petitioners produced their evidence which miserably failed to rebut the statement R of the donor. As already mentioned above, it was Rehmat Ali, one of the petitioners, who said in his cross‑examination that the transaction was in fact a sale. Therefore, he did not deny the alienation by Ali Muhammad of his land to the respondent; he only controverted the character of the alienation but failed to lead any evidence in his support.

13. So far as the objection of learned counsel for the petitioners that since the gift deed D.2 was not registered, it did not create any title in favour of the respondent is concerned, learned counsel for the respondent has cited Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 wherein while dealing with sections 123 and 129 of the Transfer of Property Act, it has been observed that:‑

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"Gifts made under Muslim Law, are expressly excluded from the operation of the Act. Under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee."

These observations were based on an earlier judgment of the Supreme Court in Mst. Umar Bibi and others v. Bashir Ahmad and other 1977 SCMR 154 wherein it has been observed that it is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law were complied with even if the instrument of gift is not registered. Therefore, the fact that the gift deed D.2 was not registered does not affect the gift in favour of the respondent as according to the statement of Ali Muhammad, donor, D.W.3, the formalities which validate a gift under Muslim Law were complied with in this case.

14. In view of the foregoing reasons, the concurrent finding of the learned Courts below on issue No.3 that the respondent also had become owner in the estate on the basis of the gift prior to the sale of the land in dispute to him is unexceptionable.

15. In the result, this revision petition is without force and the same is accordingly dismissed, leaving the parties to bear their own costs.

M . B . A . / R‑84/ L ??? Revision dismissed.