FAKHURUDDIN vs Mst. ZOHRA BI

ORDER

1. ' USMAN ALI SHAH, J.--The petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 9-5-1988, whereby regular second appeal of the respondent was accepted.

2. ' The matter involved in this petition is regarding a gift of 28/40 share, allegedly gifted to the plaintiff/petitioner herein. Khairati son of Albaila the owner of 33 kanals 11 marlas of land vide on report to the Patwari on 18-10-1961, gifted in favour of his wife Mst. Zohra respondent herein and daughter Mst. Hassan Bi. A mutation was then entered and from this entry it transpires that Fakhur- ud-Din plaintiff/pititioner was not accepted by Khairati as his son. The gift mutation after doing the needful, was sanctioned in favour of the donees on 11-12-62. Fakhur-ud-Din appeared to have challenged this mutation before the Collector against the donor and donees which was dismissed by the Collector on 11-2-1963. The record shows that Kharati died on 3-4-1964 while his two sons Muhammad Sharif and Fakhur-ud-Din brought a suit for joint possession of their share, denied the gift and challenged its validity. The suit after a hard contest was dismissed by the Civil Judge on 6- 6-1966 and the two plaintiffs were not held to be the sons of ICharati donor. Although under issue No, 5 Kharati was held to have full power without limitation to alienate his property but under issue No, 6 with regard to the possession of the gifted property by way of attornment and the plaintiffs were non-suited. The learned Civil Judge vide his order mentioned above dismissed the suit.

3. ' On appeal before the District Judge by the plaintiffs/petitioner, the learned District Judge vide his judgment dated 11-4-1968 reversed the finding of the trial Court and concluded that the plaintiffs were the sons of Kharati and the gift was also declared invalid for want of delivery of possession of the property. In revision before the Lahore High Court, the question with regard to the transfer of possession of property under the gift was canvassed and the learned Judge of the High Court while accepting the revision petition restored the judgment of the trial Court with the observation that the gifted land in question was in occupation of the tenants who paid the rent to the defendants/donees and this fact is admitted by Muhammad Sharif one of the plaintiffs that the defendants received the rent directly from the tenant. The plaintiffs have no claim of possession over the suit land nor evidence to this effect to prove their possession over any part of the disputed property is available on the record. The donees are females and in the circumstances the management and look after of the gifted property shall be deemed to be with the donor on behalf of the donees.

4. ' After hearing the learned counsel for the petitioner we are not persuaded that the view taken by the learned Judge in the High Court suffers from any infirmity. Therefore we do not think that it is a fit case for any interference by this Court in the impugned judgment. Leave to appeal is therefore, refused.