2020 M L D 896
[Balochistan (Sibi Bench)]
Before Abdul Hameed Baloch, J
Haji ABDUL SATTAR and 2 others ---Petitioners
Versus
Mst. MEHNAZ and 7 others ---Respondents
Civil Revision Petition No. (s) 37 of 2015, decided on 20th November, 2019.
(a) Gift---
----Oral gift--- Proof ---Requirements ---Contention of plaintiffs was that they had not gifted
suit property to the defendant ---Suit was decreed concurrently ---Validity ---Defendant being
beneficiary was bound to prove as to when plaintiffs had orally gifted him the suit property--
-Evidence of donee was silent with regard to the fact when suit property was gifted in his
favour ---Plaintiffs did not appear before the Revenue Officer and no signatures of donors
were available on the gift mutation ---Suit p roperty had been transferred fraudulently in the
record of right without the knowledge of the plaintiffs ---When any act had been done for
nefarious design then no legal sanctity could be attached to such act ---Defendant had failed
to prove that plaintiffs had gifted the suit property in his favour ---Where an act was done
illegally then limitation did not run ---Material portion of statement of witnesses of plaintiffs
was not denied by the defendant and same was to be deemed to be admitted--- Plaintiffs had
failed to point out any illegally or irregularity in the impugned judgments and decrees passed
by the Courts below ---Revision was dismissed, in circumstances. [pp. 899, 900] A, B, C, D,
E & F
Naveed Akram v. Muhammad Anwar 2019 SCMR 1095; Jan Muhammad v. Mulla
Abdul Rehman 1999 CLC 266 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---High Court while exercising
revisional jurisdiction could not reopen or di late upon merits of the case and could interfere
only when the conclusion drawn by the Courts below was based on mis -reading or non-
reading of evidence or was perverse and fanciful ---High Court had to confine itself only to
law point involved in the matter or any portion of evidence which was overlooked by the
Courts below.
Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.
(c) Limitation ---
----Where an act was done illegally then limitation did not run.
Ahsan Rafiq Rana for Petitioners.
Ghulam Mustafa Buzdar and Shahid Baloch, Assistant Advocate General for official
Respondents.
Date of hearing: 25th October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J .---Through this judgment I intends to dispose of
above revision petition filed by the petitioners against the judgment and decree (impugned
judgment and decree) dated 29th May, 2014 passed by Qazi Dera Murad Jamali, (trial court), whereby the suit of the respondents Nos. 1 to 4/ plaintiffs was decreed and against the judgment and decree (impugned judgm ent and decree) dated 26th May, 2015 passed by
Majlis -e-Shoora Naseerabad at Dera Murad Jamali, whereby the appeal filed by the
petitioners was dismissed.
2. The facts of the case were that the respondents Nos. 1 to 4/ plaintiffs filed a suit for
declarati on, cancellation of mutation entries and permanent injunction against the
petitioners/defendants and proforma respondents Nos. 5 to 8, in respect of land bearing khasra Nos. 465, 466, 467, 468, 469, 470, 471, 473, 474, 475, 476, 477, 478, 479, 495, 496, 497, 500, 501 and 505, consisting of 20 Qitas, measuring 493 rod 16 poles, situated at Mouza Mandar, Tappa Shoora Durabi, Tehsil Chattar, District Naseerabad (suit property), with the
following prayer.
3. The defendants Nos. 1 and 6 contested the suit on- legal as well as factual grounds by
filing written statement and prayed for dismissal of the suit.
4. The defendants Nos. 2, 3 and 5 also contested the suit on legal as well as factual
grounds by filing their joint written statement and prayed for dismissal of the suit.
5. The defendant No. 7 filed separate written statement and prayed for dismissal of the
suit.
6. After receiving pleadings of the parties the learned trial court framed issues on 13th
August, 2011, on which both the parties led their respective evidence and on conclusion of
the same the learned trial court vide impugned judgment and decree dated 29th May, 2014, decreed the suit of the respondents/plaintiffs. The petitioners being aggrieved of the same filed appeal before Majlis -e-Shoora Naseerab ad at Dera Murad Jamali, but the appeal was
dismissed vide impugned judgment and decree dated 26th May, 2015, hence this revision petition before this court.
7. Heard learned counsel for the parties and perused the material available on the record.
The rec ord transpires that respondents Nos. 1 to 4 filed the suit with the contention that they
have never gifted the suit property to defendant No. 1. The defendant No. 6 being real
brother had looked after the suit property. He with mala fide intention secretly and behind
their (plaintiffs') back transferred the suit property in the name of his son (defendant No. 1) on the basis of gift in 1994. Whereafter, the defendant No. 1 had sold the suit property to defendants Nos. 2, 3 and 5. As soon as the plaintiffs go t knowledge of the fraudulent act on
part of the defendant No. 6 filed the instant suit through their brother Nisar Ahmed as
attorney on 2nd April, 2011.
8. The learned counsel for the petitioners contended that they have purchased the suit
property from r espondent No. 7 in sum of rupees two million. The question is whether the
respondent No. 7 had title to sale out the suit property, from where he got the title. The
respondent No. 8 admitted that the suit property was mutated in the names of respondents Nos. 1 to 4/plaintiffs in the revenue record. He has taken the plea that the plaintiffs had
voluntarily gifted the suit property and thereafter, transferred in his name in the record of right. The burden of proof lies on the defendant/ respondent No. 7 to pr ove when the
plaintiffs had orally gifted the suit property. The evidence of defendants is silent in this regard. DW -3 exhibited the mutation of suit property transferred in the name of respondent
No. 3 as Ex: D/2- D. It transpires that no signatures of pla intiffs available on Ex: D/2 -D. Even
the defendant No. 6/respondent No. 8 admitted that the plaintiffs were not appeared before the Revenue Authority at the time of transfer.
9. When a person claimed gift from lady; whereafter, the lady denied the gift, th e burden
of proof lies on the beneficiary to prove the same. It was held in the case of Naveed Akram v. Muhammad Anwar 2019 SCMR 1095:
"Further, transfer of the property by way of gift in favour of his sons by Muhammad
Akram was obviously a device to deprive the Respondent of his right that has accrued
to him by reason of execution of the agreement to sell and payment of earnest money. Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further, no witness
in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is insufficient to establish a valid gift which could have the effect of defeating the rights of the Res pondent."
10. The record further transpires that the alleged transfer was made fraudulently in the
record of right without knowledge of the plaintiffs. When an act done for nefarious design the legal sanctity could not attach to such act. The defendant No. 6 failed to prove that the
plaintiffs had gifted the suit property to his son (defendant No. 1). Where an act was done illegally the limitation cannot run.
11. The statements of the witnesses of the plaintiffs/ respondents Nos. 1 to 4 were
recorded. The m aterial portion of their statements was not denied. There could not be two
views. If the material portion of statement of witness was not denied; it deemed to be admitted. Reliance in this regard is placed on the case of Jan Muhammad v. Mulla Abdul Rehman 1999 CLC 266.
12. While exercising revisional jurisdiction by this Court it is not permissible to reopen or
dilate upon merit of the case. While exercising revisional jurisdiction this court has to
confine only to law point involved in the matter or any portion of evidence which was overlooked by the courts below. Can be interfered only when the conclusion drawn by the courts below were alleged to be unlawful, based on misreading or non -reading of evidence,
perverse and fanciful. The petitioners have failed to point out any illegality or irregularity in
the impugned judgments. The honorable Supreme Court held in the case of Kanwal Nain v.
Fateh Khan PLD 1983 SC 53 that concurrent findings of two courts below are not open to
interference in limited revisional jurisdiction of the High Court, but it may be to some extent
erroneous on point of fact and law or both.
13. The learned counsel for the petitioners has failed to point out any infringement of law,
any illegality or irregularity in the impugned judgments and decrees warranting interference by this court. As such both the impugned judgments and decrees dated 29th May, 2014 and 29th May, 2015 passed by Qazi Dera Murad Jamali and Majlis -e-Shoora Naseerabad at Dera
Murad Jamali, respectively are upheld and pet ition being devoid of merit is dismissed with
no orders as to cost.
ZC/170/Bal. Revision dismissed.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,
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