ABID HUSSAIN Versus KALSUM

This revision petition filed under section 115, C.P.C. is directed against the judgment and decree dated 9‑10‑1986 passed by the learned Additional District Judge, Pakpattan Sharif whereby he affirmed the judgment and decree of the learned trial Court dated 27‑3‑1986 by which suit for declaration instituted by the respondent against the petitioner was decreed.

2. Mst. Kalsoom Fatima the plaintiff (hereinafter called the respondent) instituted a suit against the defendant Abid Hussain (her brother; hereinafter called the petitioner) seeking a declaration to the effect that Mutation No.679 dated 8‑5‑1970, whereby she was shown to have transferred the suit‑land (detailed in the plaint) to him by way of gift was liable to be declared contrary to law and facts and also being based on fraud and misrepresentation. By way of consequential relief, prayer for possession of the suit‑land had also been made. The suit was hotly resisted, and the learned trial Court framed the following issues arising out of the pleadings of the parties:‑‑

(1) Whether the suit was within time? OPP.

(2) Whether the suit is undervalued for the purposes of court‑fee and jurisdiction? If so, what is its correct valuation and to what effect?

(3) Whether the Hiba Mutation No.679 dated 8‑5‑1970 is based on fraud and misrepresentation? If so, its effect. OPP

(4) Relief.

3. Parties led evidence in support of their respective evidence and the learned trial Court decided Issues Nos.1 and 3 in favour of the respondent/plaintiff, whereas Issue No.2 was decided against the petitioner/defendant, thus, the suit was decreed vide judgment and decree dated 27‑3‑1986 and the learned Additional District Judge affirmed the same by dismissing the appeal of the present petitioner vide his judgment and decree dated 9‑10‑1986. Hence, this revision petition.

4. Today, two applications bearing C.M. No.543/C of 2002 and C.M. No.544/C of 2002 have been moved on behalf of the petitioner. Through C.M. No.543/C of 2002. moved under Order VI, rule 17, C. P. C., petitioner has prayed for adding the grounds in the present revision petition to the effect that the respondent/plaintiff wrongly fixed the valuation of suit for the purposes of court‑fee and jurisdiction at Rs.9,000 on the basis of alleged 15 times of net profits of the preceding year, whereas this valuation should have been fixed at the market value of the suit‑land measuring 23 Kanals, 16 Marlas and according to annual sale price for the years 1978‑789, 1979‑80 and 1980‑81 is Rs.9,718, Rs.13,399.51 and Rs.11,200 per acre per year, respectively. So, in this way value of the suit‑land comes to more than Rs.20,000 and suit could not have been heard by a Civil Judge IIIrd Class as having no pecuniary jurisdiction. Through C.M. No.544/C of 2002, a prayer has been made to amend the written statement to the effect that the respondent has wrongly fixed the valuation of suit for the purpose of court‑fee and jurisdiction and the market value of the suit‑land is not below Rs.45,000; that the respondent is also estopped from filing the suit and the petitioner/plaintiff has never paid any share of produce to her after the mutation of gift; that the respondent/plaintiff has instituted the suit contrary to Muhammadan Law as she did not have the authority to revoke the gift.

5. Both the above applications have not only been filed after a period of more than 14 years but also without any substantial cause. Issue No.2 was framed with regard to the valuation of the suit for the purpose of court‑fee and jurisdiction with reference to para.9 of the written statement.

Onus of proving this issue was can him but he could not succeed to get decided this issue in his favour. This issue was not urged before the learned Additional District Judge, Pakpattan Sharif during the arguments made by his learned counsel as is evident from the impugned judgment, that‑

"No other point was urged."

So, the impugned judgment remained confined discussing Issues Nos. 1 and 3. I have also gathered the impression that both these applications have been moved with ulterior motive to further prolong the litigation. So, the same are dismissed. But it is pertinent to mention here that with regard to the point of revocation of a gift under Muhammadan Law, petitioner had earlier moved C.M. No.2034 of 1996. With regard to this very point, learned counsel for the petitioner was permitted to agitate this point during arguments. So, this application also stands disposed of.

6. Learned counsel for the petitioner vehemently argues that the impugned judgments ate patently an outcome of non‑reading/misreading of the material pieces of evidence substantiating the assertions of the petitioner and negating the stand put forth by the respondent. Both the learned Courts below have decided Issues Nos. 1 and 3 on wrong premises of law and facts. Suit was patently barred by time as a mutation attested in the year 1970 was challenged by the respondent in the year 1980 almost after 10 years and‑that too without any justification; that all the three essential ingredients of a valid gift i.e. declaration of offer, acceptance of the same and delivery of possession, have been duly proved by the petitioner through his, confidence‑inspiring evidence which was neither properly appreciated nor ,duly weighed by the learned Courts below, resulting in grave miscarriage of justice. This being so, respondent was also not competent to revoke the gift after having been physically acted upon. Learned counsel has referred to Article 156(2)(b) of Muhammadan Law. It is also added that statement of the respondent Mst. Kalsoom was recorded after the close of entire evidence of the parties, in affirmative as well as rebuttal. This was a patent illegality not noticed by the learned Courts below. Reference has been made to Fazal Muhammad and others v. Mst. Zainab Bibi and others 2001 MLD 2012 and Khalil Ahmad v. Australasia Bank and another 1979 CLC 494. On the point of limitation, learned counsel has referred to Muhammad Azeem and others v. Mst. Zohran and others 2002‑ MLD 500 and Muhammad Latif Kardar and others v. The President, L.D.A. and others 1985 CLC 2845.

7. On the other hand, learned counsel for the respondent forcefully supports the impugned judgment and decree by submitting that the same had been passed strictly in accordance with law and facts.

8. I have considered the submissions, perused the record and gone through the judgments cited at the bar.

9. Usually, normally and generally transfer of property by way of gift takes place in favour of the donee by the donor out of love and affection or because of the services sincerely rendered to the donor by the donee. In the instant case, no such element is available. This aspect is significant as the respondent has her own children. However, I have also noticed a suggestion put to the respondent while appearing as P.W.5 by the learned counsel for the petitioner and her reply thereto, as reproduced hereunder: ‑‑ though such an assertion does not find mention in the written statement of the petitioner yet it is also admitted by him while appearing as D.W.5:‑‑

The impugned mutation was allegedly sanctioned on 8‑5‑1970 and the marriage of respondent took place in the year 1950. Mutation of inheritance of father of the parties with regard to the estate left by him was attested in favour of the petitioner as well as the respondent in the year 1952. So, even this very plea attempted to be developed by the petitioner is falsified.

9. The petitioner also admits:‑‑

In the presence of this admission made by the petitioner plea of respondent to the effect that he has been paying her share of produce is not without force.

10. The petitioner being a beneficiary of the impugned mutation was under a heavy obligation to prove the valid execution of the same, particularly, when the respondent discharged initial‑onus with regard to Issue No.3 by leading the evidence, in the shape of the statements of witnesses as well as documents. This aspect gains importance as it could not be successfully refuted that the respondent was an illiterate Pardahnasheen lady.

11. With the assistance of learned counsel for the parties, I have gone through almost the entire evidence available on this file. Nothing could be pin‑pointed effectively and convincingly which may persuade me to disagree with the concurrent findings of the learned Courts below on Issues Nos. 1 and 3, based on a due appreciation of law and facts. No material piece of evidence went unnoticed by the learned Civil. Judge as well as the learned Additional District Judge. They have scanned the entire evidence in true perspective and their findings cannot be termed either perverse or arbitrary. Findings on Issues Nos. 1 and 3 being concurrent findings of fact supported by the evidence are, immune from further scrutiny in a petition filed under section 115, C.P.C. The judgments cited by learned counsel for the petitioner cannot be advantageously used in the present set of circumstances.

12. Argument of learned counsel for the petitioner to the effect that allowing the respondent to record her statement in affirmative after completing evidence of the petitioner was contrary to the law as laid down in Alhaj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494 is not of much significance in the present set of circumstances particularly when it was not alleged as to how this course prejudiced the case of the petitioner. It is worth to be noticed that the petitioner did not object to this mode of evidence before the learned trial Court as well as before the learned Additional District Judge. On this score too, such a plea cannot be allowed to be raised, now.

13. The submission of the learned counsel in the context of revocation of a gift may be effective only in those cases where gift has been made validly and lawfully without being tainted with malice, fraud and misrepresentation. This plea now being advanced for the first time in the given circumstances is of no weight‑at all as it has been held that no valid gift had ever taken place, in favour of the petitioner.

14. For what has been stated above, I am convinced that the respondent had been deprived of her property by the petitioner in a clandestine manner, thus her suit, as prayed for, was rightly and justly decreed against him. Resultantly, instant revision petition fails and the same is dismissed leaving the parties to bear their own costs.

Q.M.H./M.A.K./A‑558/L Revision dismissed.