AHMED SHER and others vs SIKANDAR HAYAT and others

' SYED DEEDAR HUSSAIN SHAH, J.--- Petitioners seek leave to appeal against the judgment of the Lahore High Court, Lahore, dated 25-2-2003, passed in Civil Revision No,941 of 1995.

2. Precisely stating the facts of the case are that on 12-1-1992petitioners Nos.1 and 2 filed a suit against the respondents for declaration, alleging therein that they were the owners-in-possession of 1/4th share in Khata No,10, measuring 431 Kanals and in "Shamlat Deh", Khewat No,12, situate in Mauza Punjey Wala, Tehsil Chiniot District Mang; that Mutation No,I73 (Hiba) attested on 21-5-1983 was without jurisdiction, illegal and ineffective on the rights of the petitioners. A prayer for permanent injunction restraining the respondents from interfering with the possession of the petitioners was also made as a consequential relief. Mst. Bhag Bhari and Mst. Smail were the wives of Allah Yar deceased. The petitioners are the sons anddaughters of Allah Yar from Mst. Bhag Bhari.

The respondents arc sons and daughters of Allah Yar from second wife Mst. Smail. It was stated in the plaint that the land in dispute was orally gifted to the plaintiffs by their father, but on instigation of the defendants, father of the parties, gifted the same land to them vide Mutation No,173,dated 21- 5-1983; and that the mutation of gift was illegal and ineffective against the rights of the petitioners plaintiffs. The defendants contested the suit by filing a joint written statement. The trial Court framed necessary issues, perused the record, heard learned counsel for the parties and dismissed the suit with costs vide judgment, dated 22-12-1993. Against the aforesaid judgment and decree, appeal was preferred before the Additional District Judge, Chiniot, District Jhang, who allowed the same vide judgment dated 22-3-1995.

3. Feeling aggrieved, the respondents filed civil revision, which was allowed by the learned Single Judge of the Lahore High Court, Lahore, vide judgment impugned herein.

4. Learned counsel for the petitioners, inter alia, contended that thegift was not proved on the record; that the learned Single Judg in Chambers had not considered the case in its proper perspective; that the impugned judgment is the result of misreading and non-reading of the material, therefore, leave to appeal may be granted.

5. We have considered the arguments of learned counsel for the petitioners and very carefully examined the record available. The contention of learned counsel that the impugned judgment is the result of misreading and non-reading of material is not born out from the record. The learned High Court, after considering the entire availab'e evidence, rightly allowed the revision setting aside the judgment of the First Appellate Court and restoring that of the trial Court. The impugned judgment is entirely in consonance with law laid down by this Court. Relevant paragraph of the impugned judgment reads as under:-- "The learned Additional District Judge has laid stress on the non-delivery of the possession of the suit land. The.Donor admitted in his life time about the gift in favour of the petitioners. The donor in the instant case has done all he could do to perfect the gift by placing the donees in a position to take possession of the suit land. In my view the gift stands proved in favour of the petitioners. See Saida v. Pinnu and another (supra) and Munawar Hussain Shah v. Mst. Bilora Bi PLD 1978 SC (AJ&K)

33. The learned Additional District Judge completely misdirected himself as to the application of the law and has misread the written statement. There is another aspect of the case that the gift has been challenged during the life time of the donor. In the case of Muhammad Sarwar and 6 others v.Muhammad lqbal and 2 others 1997 M LD 130 it was observed that "A donor or any heir claiming through him (and not against him) has the locus standi to challenge the gift deed for want of delivery of possession but when a presumptive heir challenges the gift on the basis of non- delivery of possession in exercise of is independent right, he could have no locus standi to challenge the gift on this score as this challenge is not through the donor but in spite of and against him". In the instant case plaintiffs/respondents (the sons of the donor) challenged the gift during the life time of the donor, their father. They were not claiming through the donor but against him. Following the aforementioned principle the respondents had no locus standi to file the suit against the donor (their father) during his life time.

' It is also pertinent to mention here that it is admitted by plaintiff (respondent No,2) in his cross- examination that earlier the donor had gifted away 3-3/4 squares of land in favour of the plaintiffs.

The plaintiffs/respondents want to keep the same but wish to deprive the petitioners of land gifted in their favour."

6. For the facts, circumstances, and reasons mentioned hereinabove, we are of the considered opinion that this petition is without merit and substance, which is hereby dismissed and leave declined.