2020 C L C 1561
[Balochistan]
Before Nazeer Ahmed Langove, J
CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, through EDO
(Revenue), Kalat and another----Petitioners
Versus
BIBI RUQIA (WIDOW OF LATE SHAHZADA MEHMOOD KHAN) and 5 others ----
Respondents
Civil Revision No.439 of 2010, decided on 17th September, 2018.
(a) Islamic Law ---
----Gift ---Ingredients ---Dispute as to execution of gift ---Non-joinder of necessary party ---
Effect ---Contention of plaintiff was that suit property had been gifted in his favour ---Suit
was dismissed by the Trial Court but Appellate Court decreed the same ---Validity ---Plaintiff
had not arrayed Secretary Board of Revenue as party in the suit ---Suit was not maintainable
due to non- joinder of necessary party ---Ingredients of gift i.e. offer, acceptance and delivery
of possession were not available to the plaintiff ---Physical possession of suit property had
not been transferred in his favour on the basis of gift ---Impugned gift was defective in nature
and was not enforceable under the law ---If any of the conditions of gift was missing then it
could not be termed as valid gift ---Donor had expired in the year 1983 whereas gift deed was
of 1984--- Plaintiff had also not disclosed correct description of suit propert y, which had been
recorded in the name of Provincial Government ---Suit had been filed after lapse of thirty five
years and was time barred ---Party was to pursue his legal remedy with diligence and if suit
was beyond limitation then each day delay should ha ve been explained ---Impugned judgment
passed by the Appellate Court did not contain findings on each and every issue ---Trial Court
had passed well -reasoned and speaking judgment and decree based on correct appraisal of
evidence--- Appellate Court had revers ed the findings of Trial Court without any valid and
convincing grounds ---Impugned judgment and decree passed by the Appellate Court were set
aside and those of Trial Court were restored--- Revision was allowed, accordingly.
Principle of Muhammadan Law by D.F. Mulla para. 138; Mst. Rasheeda Bibi and
others v. Mukhtar Ahmed and others 2008 SCMR 1384; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others 2017 CLC 646 and M uhammad Raz Khan v. Government of
N.W.F.P and another PLD 1997 SC 397 rel.
(b) Islamic Law ---
----Gift ---Ingredients ---Ingredients of gift were offer, acceptance and delivery of possession.
Mrs. Sabra Islam, Additional Advocate -General for Petitioners.
Syed Shabbir Ahmed Shah, Assistant Attorney General for Respondent No.6.
Date of hearing: 11th September, 2018.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---This petition is directed against the judgment
and decree dated 14th June, 2010, passed by Majlis -e-Shoora , Mastung, whereby; the appeal
filed by Shahzada Agha Mahmood Khan (predecessor -in-interest of respondents Nos.1 to 5)
has been accepted and the judgment and decree dated 31st December, 2009 passed by Qazi
Kalat has been set aside. Hence, the instant petit ion with the following prayer:
"It is, therefore, requested that the judgment and decree dated 14- 06-2010 passed by
the learned Majlis -e-Shoora, Mastung in Appeal No.27/2010 may kindly be set aside
and the Judgment and Decree dated 31 -12-2009 passed by learned Qazi Kalat, in Civil
Suit No.31/2009 be restored and maintained in the interest of law and justice."
2. Facts of the case are that plaintiff Shahza da Agha Mahmood Khan (predecessor -in-
interest of respondents Nos.1 to 5) filed a suit for declaration, perpetual injunction and cancellation of revenue entries in the revenue record with averments that the grandfather of plaintiff namely Shahzada Abdul Kar eem Khan gifted him a portion of land situated in
Mouza Kohing Kalat, Tehsil Kalat measuring nine acres vide gift deed dated 2nd December, 1984 and since then he has continuously been in possession of the same. It was alleged that a portion of above said l and has been entered on the name of Government and Frontier Corps,
against which the instant suit was filed with the following prayer: --
3. On service of notices, petitioners (defendants) filed their written statement wherein
they raised certain legal objections in respect of maintainability of the suit and contested the same on merits as well.
4. Out of pleadings of the parties, following issues were framed:
5. After framing issues, the parties exhausted their respective sides.
6. The trial court/Qazi Kalat after hearing the parties and evaluating the evidence
dismissed the suit vide judgment and decree dated 31st December, 2009, assailed in appeal,
which finally was allowed, whereby suit filed by the plaintiff (predecessor -in-interest of
respondents Nos.1 to 5) was decreed, vide judgment and decree dated 14th June, 2010 passed by Majlis -e-Shoora Mastung, hence; this petition with the prayer mentioned herein- above.
7. It is pertinent to note here that the instant petition was filed on 1st September, 2010 .
Despite publication, the private respondents Nos.1 to 5 did not appear, as such, they were proceeded against ex parte.
8. Heard the learned Additional Advocate General for petitioners and learned Assistant
Attorney General for respondent No.6 and gone through the record; perusal whereof, shows that the very suit filed by the plaintiff (respondents Nos.1 to 5) was not maintainable on the ground of non- joinder of necessary parties as the Secretary, Board of Revenue Balochistan
has not been arrayed as party. A part from that ingredients sine qua non for Hibba, were not
available to the plaintiff which are: (1) offer, (2) acceptance, and (3) delivery of physical possession. But, no physical possession has ever been transferred to the plaintiff, meaning thereby that the very gift was defective in nature and not enforceable under the law. In this
respect "Principle of Muhammadan Law" by D.F. Mulla, para. 138, is relevant which reads as under:
"Hiba or gift -- A hiba or gift is "a transfer of property, made immedi ately, and
without any exchange, by one person to another, and accepted by or on behalf of the
latter. "
It is further elaborated in section 149, which provides that, it is essential to the
validity of a gift that there should be: (1) a declaration of gif t by the donor; (2) an acceptance
of the gift, express or implied, by or on the behalf of the donee; and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with the gift is complete. In view of the above mentioned mandate of law, there are three essential conditions for a valid gift; immediate transfer of property, without any exchange and accepted on behalf of the donee. It is further clarified in the latter part of section, wherein, the conditions expressly given are: -
(1) offer;
(2) acceptance; and
(3) delivery of possession.
If any of the conditions is found as missing, then it cannot be termed as a valid gift.
Another damaging factor brought on record was that Shahzada Abdul Kareem Khan
claimed to have gifted the aforesaid property to the plaintiff reported to have expired in the year 1983, while the alleged gift deed was of 1984; such an objection raised by the
petitioners should have been answered properly, but not. Reliance in this behalf is placed on a case titled Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others (2008 SCMR
1384). Relevant observation therefrom is as under:
"11. ...There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view is supported by the dictum lai d down in the cases of Gopal Das and others
v. Sri Thakurji and others AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633. In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by the Regis trar on questioned document would
not prove that such document was executed by donor in favour of donee; contents of gift-deed and constituents of gift must be proved in consonance with the provisions of
"Qanun -e-Shahadat" and rules of gifts under Muhammadan Law."
9. Legally the entire property cannot be gifted to a person by the donor, he is authorized
to give only one third (1/3rd) of the entire property, therefore, on this count as well, the alleged gift deed was not enforceable.
10. Apart from this, gift deed relied upon by the plaintiff did not disclose correct
description of the property- in-dispute, which during the settlement held in the year 1969 -70,
had been recorded on the name of Government, but not challenged timely. The instant suit
was filed af ter lapse of about thirty -five years, which was barred by time. In this respect,
reliance is placed on the judgment of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153), wherein, the Hon'ble Supreme Court of Pakistan observed as
under:
"The words of section 3 of the Limitation Act are mandatory in nature in that every
suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement of the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the pa rties. It imposes a
duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be wai ved and even if waived
can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad. 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the
amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that
"the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in
subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lah ore High Court also took a similar view in Kundo Mal v. Firm
Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up against by the parties waiving them or by the
Courts themselves."
Further reliance in the behalf is placed on a case titled Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others (2017 CLC [Balochistan] 646). Relevant observatio n
therefrom is as under:
"12. ...Section 3 of the Limitation Act provides that every suit instituted after the period of limitation shall, subject to the provisions of Limitation Act irrespective of the fact that limitation has not been pleaded as defence. If it appears from the plaint that the suit is barred by limitation, the plaint is to be rejected under Order VII, Rule 11, C.P.C. without resorting to evidence or framing any issue."
11. In the instant case, the suit filed in the year 2009 to challenge the mutation entries of
1969- 70 was barred by time. It has time and again held by the Hon'ble Supreme Court of
Pakistan that any aggrieved person has to pursue his legal remedy with diligence and if a suit
filed beyond limitation, each day delay is to be e xplained. In the instant case, no explanation
was given even without specifying the date of knowledge of the impugned mutations. In
Muhammad Raz Khan v. Government of N.W.F.P and another (PLD 1997 SC 397), the Hon'ble Supreme Court of Pakistan observed as under:
"It is undoubtedly imperative for aggrieved party to pursue legal remedies with utmost diligence and satisft conscious of the Court or quasi -judicial authority for
approaching respective forums beyond prescribed limitation, even if objections to that effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmed and others) and PLD 1993 SC 147 (Province of Punjab and others v. Muhammad Hussain and others). Thus, aggrieved person seeking r edress has legal obligation to justify each day's delay for launching
proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts. However, reference may be made to judg ments reported in (i) PLD 1996 SC 292 (Ali Muhammad and
others v. Muhammad Shafi and others), (ii) PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930 (Muhammad Feroze Khan v. Khalique Dad Khan and 28 others), (iv) PLD 1982 SC (A J&K) 13 Khadim Hussain Khan v.
The State)."
12. The judgment passed by Majlis -e-Shoora, Mastung does not contain findings on each
and every issue, which is required under Order XX, Rule 5, C.P.C, which reads as under:
"5. Court to state its decision on ea ch issue.--- In suits in which issues have been
framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient
for the decision of the suit."
13. While on the other -hand, learned Qazi Kalat passed a well -reasoned and speaking
judgment and decree, based on correct appraisal of the evidence and relevant provisions of law. As such, there was no occasion for the appellate court to reverse the findings of trial
court on invalid and non- convincing grounds. Even on reappraisal of evidence, this Court is
of the opinion that the findings arrived by the trial court were in consonance with the record, evidence and relevant provisions of law, should not have been interfered with by the appellate forum.
14. In view of what has been discussed above, the petition filed by the petitioners is
allowed and the judgment and decree dated 14th June, 2010 passed by Majlis -e-Shoora,
Mastung is set aside. Consequently, the judgment and decree dated 31st December, 2009 passed by Qazi, Kalat is up -held. Parties are left to hear their own costs.
ZC/38/Bal. Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.