MUHAMMAD SALEEM Versus Mst. RAJ BI

The findings of the Courts below are at variance. Mr Abid Hussain Qureshi, the learned Civil Judge 1 st Class, Pind Dadan Khan had decreed the suit vide his judgment and decree, dated 11‑12‑1985. His findings were reversed by the learned First Appellate Court presided over by Mr. Muhammad Khalil Chaudhry, learned Additional District Judge Jhelum who dismissed the suit of the plaintiffs with costs. This was a suit for partition of a house consisting of two rooms and a courtyard. The full description of which has been provided in the plaint. This was owned by Ahmad Din son of Wall Muhammad; who was issueless and according: to the plaintiffs, now petitioners, they alongwith defendant No.1 Mst Raj Bibi, mother of defendant No.2, were legal heirs of the said Ahmad Din. On behalf of the defendants, it was said that the property in question had been gifted to Muhammad Tufail, defendant No.2, through a gift deed by the owner of the house Ahmad Din.

2. The learned Trial Court had framed 10 issues. Issue No.9 pertained issue to the gift of the property which was as follows:-- x x x x x x x x x x x x x x

3. The learned trial Court came to the conclusion that the note in acknowledgement of the gift (Exh.D.1) was a forged document for several reasons given by the learned trial Court inter alia to tile effect that the stamp paper carried no endorsement of the vendor; it included the name of marginal witness (D.W.3) after the execution of the document; that the name of the witness, actually scribed on the document, Fazal‑ul‑Haq was never produced; name of Muhammad Bashir another witness had been written without mentioning of his parentage; 'there were no signature of Muhammad Bashir under his name. He believed the witnesses produced from the defendants' side that the house in question was never gifted to Muhammad Tutail. The learned trial Court also disbelieved Muhammad Tufail when he stated that he and his mother were permanent residents of this house because his school leaving certificate (Exh.P.2) reflected a residence at a different place. The learned trial Court believed the story of the defendants who had stated that the plaintiffs were living in the house as a licensee and at the time when the husband of defendant No.1 had fallen sick. The learned trial Court held Mst. Raj Bibi was a utrine sister of Ahmad Din, the owners of the disputed houses, and the plaintiffs being his collaterals had a cause of action. After disbelieving the story of gift, the learned trial Court held that defendant No. 1 Mst. Raj Bibi was owner to the extent of 1/6th share as utrine sister of the owner Ahmad Din and his remaining 5/6th share was to go to the plaintiffs as residuary. He, therefore, passed the preliminary decree for partition while appointing a local Commissioner for effecting partition.

4. The learned first Appellate Court in his findings dated 21‑6‑1988, came to the conclusion that Exh.P.D,I was a valid gift. He, therefore, reversed the findings of the Trial Court while accepting the appeal.

5. Muhammad Bashir (D.W.3) who worked in Karachi where the Hiba Nama was written, came to support the case, of the defendants and stated that the gift was made in his presence and he signed Exh.D.1 as a marginal witness and in his presence Ahmed Din had signed the i document. Muhammad Tufail appeared as his own witness in support of his case. According to him, Ahmed Din, the donor, was his maternal uncle who had given him the gift. That the house was in his possession and his sister and mother lived there. He also went on to say that he C made improvement in the house.

6. One of the questions put to him and its answer in cross?examination i.e.:‑

Urdu Typing 1001 was picked up by the learned `District Judge in support of his .theory.', about the validity of the gift, as according , to the learned Additional District Judge, if there was no written Hiba, such a question was not expected. Haji Umar Hayat (D.W.1) also came to support the case of the defendant with respect to possession, Hiba and improvement made at the house. Allah Din (D.W.2) stated that he has been witnessing the possession of the disputed premises in possession of the defendants/donees since a long time. 'He went on to say that the plaintiffs in this case Nave nothing to do with this house as they had already been given a separate house at the time of the family partition.

7. Muhammad Saleem, one of the plaintiffs, did not dispute the possession of the defendants but only stated that the key of the house was given to the defendants just on humanitarian grounds. But the witnesses from the plaintiffs side had no personal knowledge about the Hiba since it had been executed at Karachi and they were in no position to rebut the witnesses who came to support the fact of the Hiba, nor were they able to impeach the veracity of these witnesses.

8. The learned counsel appearing on behalf of the petitioners pointed out that Civil Suit No.218/507 of 1982/85 was another suit pertaining to the same property for purposes of possession through partition which had been dismissed by Mr. Abid Hussain Qureshi, learned Civil Judge 1st Class, Pind Dadan Khan and' his decision was upheld by the same First Appellate Court presided over by the same learned Judge namely Muhammad Khalil Chaudhary, vide his judgment and decree, dated 21‑6‑1988. This, it was said, had brought about a contradiction.

9. A perusal of both these suits shows that the suit property in these cases were different. The Suit bearing No.281/507 of 1982/85 pertained to a property originally owned by Ghulam Muhammad and presently by his four sons consisting of a house. The boundaries of which are given in the decree‑sheet and these do not correspond entirely with the boundaries given in the suit of the case in hand. One also finds, the mention of the former suit for partition inter se the parties in the later suit which pertained to the house of Ahmad Din. Although the facts have been confused but a careful perusal reflects that these suits were not akin nor an issue had been framed with respect to the gift in favour of Tufail by Ahmad Din in the Suits bearing Nos.208/507 of 1982/85.

10. While going through the record, this Court would rather agree I with the findings of the learned Additional District Judge on the issue of gift and uphold these findings.

11. As this Court agrees with the findings of the learned Additional District Judge, it finds no merits in the present civil revision. It is dismissed. Parties are, left to bear their own costs.

H.B.T./M‑1098/L ??????????????????????????????????????????????????????????????????????????????? Revision dismissed.