ABDUL AZIZ Versus MANZUR MAI (MST.)

ORDER

SHAFIUR RAHMAN, J. ‑‑‑Leave to appeal is granted inter alia to reconcile the legal effect of following apparent irreconcilable finding of fact recorded by the Courts:‑‑

(i) By the Trial Court:

"In view of these admissions it cannot be said that the plaintiff has in fact, an intention to donate the property. The evidence of D.W.2 Haji Muhammad Ramzan apparently carries some weight but a close examination of his deposition would show that he was a claimant of the land at Chah Sukhanwala in consolidation proceedings and also finally succeeded in securing the land. His rivalry of the plaintiff is thus manifest: It is therefore unsafe to rely upon him. I am, therefore, of the view that donor had never intended to settle the property upon her sister."

(ii) By the First Appellate Court:

"The result is that gift in favour of the defendant has been proved and the mutation of gift was device agreed to by both the parties to avoid the bad effect of consolidation. The title of the plaintiff is not affected by the gift."

(iii) By the Second Appellate Court:

"These witnesses proved the execution of agreement Exh.P‑1 and deposed that the donor was the owner of two tracts of land, one at Chah Sukhanwala and other at Chah Baitwala. That land at Chah Sukhanwala was more valuable than the land at Chah Baitwala; that he had hatched a plan in consultation with donee to hoodwink the consolidation authorities; that the donee executed Exh.P‑1 where she admitted that no gift was made in her favour. This document was Boned by Mst. Manioor Mai. The document appears to be spurious nature. The thumb‑impression of Mst. Manzoor Mai on this document is not descipherable. Furthermore this case was not embodied in plaint. where it was stated that no gift was made in favour of donee. It is settled principle of pleadings that the facts which are not alleged in the plaint cannot be permitted to be proved at trial by means of evidence. This basic rule is that of secundum allegata et probata i.e. a party can only succeed according to what was alleged and proved. I am therefore, clear in my mind that both the Courts below fell into error of law by permitting the donor to prove these facts and by placing reliance upon them for the purpose of coming to conclusion that no gift was made."

2. It also' requires examination whether there is misreading of clause (2) Jeem in recording the observation that "this case was not embodied in plaint, where it was stated that no gift was made in favour of donee."

3. Security Rs.5,000.

4. Status quo be maintained with regard to possession.

A.A./A‑968/S Leave granted.