Full Judgment Text & Judicial Ruling

P L D 2016 Lahore 587

Before Ch. Muhammad Masood Jahangir, J

SARDARA AND ALLAH DITTA through Legal Heirs and others---Appellants

Versus

Mst. BASHIR BEGUM and another---Respondents

R.S.A. No.64 of 2008, decided on 25th January, 2016.

(a) Gift--

----Oral gift---Alleged donor an old illiterate village lady---Gift in favour of alien---Requirements---Gift mutation sanctioned on the basis of consent decree---Scope---Non-claiming of consequential relief---Effect---Judicial proceedings---Presumption of truth---Scope---Contention of plaintiffs was that gift mutation sanctioned through consent decree was illegal, void and ineffective upon their rights---Suit was dismissed concurrently---Validity---Nothing was on record as to when, where and before whom declaration of gift was made by the donor which was accepted by the donee and possession was delivered in lieu thereof---Oral gift was permissible but same was required to be proved by production of persuasive and trustworthy evidence---Trial Court proceeded to decree the suit merely on the basis of conceding written statement as well as conceding statement of donor without taking precautionary measures whether all such proceedings were being conducted without any coercion or misrepresentation on the part of donor-lady---Consent decree being an agreement between the parties to the lis when brought under challenge was required to be proved by beneficiary through production of convincing and cogent evidence---Trial Court without issuance of summons to the rival party for any further date of hearing received written statement of defendant-donor and after recording her conceding statement suit was decreed on the same day---Identification of a lady by the advocate before the court who had not been engaged through execution of power of attorney would have no sanctity in the eye of law---No other independent advice was available to the donor who was an illiterate and old age folk lady---Gift mutation for its completion required independent witnesses and identifiers which were not available to the donee in the present case---Principles.

Donee managed to get transferred the suit property through the alleged consent decree. Judicial Officer was required to exercise his jurisdiction while dealing with the case file as provided by the enactment. Court could not decide the lis without following the procedure and that too in a haste. Defendant being beneficiary of impugned decree was required to prove that donor had made a declaration of gift and same was accepted by her and possession was delivered to her in lieu thereof. No convincing and reliable evidence had been led by the defendant to prove the alleged transaction of gift. Neither any official of the court nor counsel who filed the suit on behalf of defendant were brought into witness-box by the defendant to prove that donor had appeared before the court. Fictitious decree was obtained by the defendants. Presumption of truth was attached to the judicial proceedings but when such proceedings were challenged then beneficiary was required to prove the same. Consent decree was not implemented till the death of donor. lf decree was passed with the free consent of donor then same must have got implemented in her life time. Revenue hierarchy was bound to implement decree in common assembly to be convened in the concerned revenue estate and same must have come in the knowledge of donor as well as her legal heirs. Donee was not related to donor and without assigning any reason gift in favour of alien was not valid. When legal heirs of donor were available then reasons should be highlighted as to why the donor made the gift in favour of an alien. Donee had failed to prove the transaction of oral gift, genuineness and validity of decree by withholding the best evidence. Plaintiffs being the legal heirs of donor could not be deprived of their share in the disputed property on technical grounds. If party seeking declaration had failed to claim consequential relief, it could not be non-suited on such count. Rules and regulations were made to foster the cause of justice and those were not to be interpreted to thwart the same. Court should not deny substantial justice on mere technicalities. When main factual issue had been determined in favour of a party on merits, his lis could not be defeated on the technical ground that he failed to claim a proper relief. Court being custodian of rights of litigants was vested with the powers to grant relief even if it had not been claimed/prayed for. Impugned judgments and decrees passed by both the courts below were not based on proper examination of material available on record which were set aside. Suit filed by the plaintiffs was decreed with further relief that they would be entitled for recovery of possession of suit property. Plaintiffs were directed by High Court to affix court fee of Rs.15,000/- on the plaint as well as on the memo of appeals within a period of two months otherwise their suit as well as present appeal would be deemed to be dismissed. Second appeal was allowed in circumstances.

Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Mt. Kapoori and 4 others v. Man Khan and 6 others 1992 SCMR 2298 and Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 ref.

Habib and 8 others v. Haji Muhammad and 3 others PLD 1970 Kar. 495; Ghulam Akbar Khan v. Haji Sher Jan and others 1989 CLC 1789; Pir Dil and others v. Dad Muhammad 2009 SCMR 1268; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Meraj Din v. Mst. Sardar Bibi and 5 others 2010 MLD 843; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Pakistan v. Khuda Yar and another PLD 1975 SC 678; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318 and Muhammad Khan v. Rasul Bibi PLD 2003 SC 676 rel.

(b) Civil Procedure Code (V of 1908)--

----S. 100---Second appeal---Scope---High Court could rebuff the concurrent findings of courts below if same were based on improper and perverse appreciation of evidence.

Khushi Muhammad v. Liaquat Ali PLD 2002 SC 581 and Iftikhar v. Khadim Hussain PLD 2002 SC 607 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 129(e) & 58---Judicial proceedings---Presumption of truth---Scope---Presumption of truth was attached to the judicial proceedings but when such proceedings were challenged, beneficiary was required to prove the same.

(d) Administration of justice---

----Technicalities could not be allowed to create any hurdle in the way of substantial justice.

(e) Administration of justice--

----Court could mould relief according to merits of the case.

Sheikh Naveed Shahryar, Humaira Bashir Ch. and Javed Imran Ranjha for Appellants.

Abid Hussain Minto for Respondent No.1.

Dates of hearing: 18th December, 2015 and 25th January, 2016.

JUDGMENT

CH. MUHAMMAD MASOOD JAHANGIR, J.--Succinctly the facts of the case are that the property fully mentioned in para-1 of the plaint belonged to Mst. Allah Jawai daughter of Nizam Din, regarding which a suit for declaration was instituted by Mst. Bashir Begum, respondent No.1 contending therein that she was owner in possession of the land as the same was orally gifted to her by said Mst. Allah Jawai due to love and affection on account of services rendered by her and Mst. Allah Jawai be permanently restrained from interfering into her possession with a further direction for implementation of gift mutation qua the suit property in her favour. The said suit was filed before the Civil Court on 7.4.1970 and the same was decreed within two days i.e. on 09.4.1970 as the claim of Mst. Bashir Begum, respondent No.1, was allegedly conceded by Mst. Allah Jawai while submitting her conceding written statement besides making conceding statement before the Court.

2. After the demise of Mst. Allah Jawai, inheritance mutation No.162 of her estate was sanctioned in favour of the appellants being her collaterals/legal heirs. On the other hand, the Revenue Officer rejected the gift mutation No.166, which was entered by the Revenue Patwari in favour of respondent No.1 on the basis of consent decree. Ultimately, mutation of inheritance No.162 sanctioned in favour of the appellants was cancelled and gift mutation No.166 was attested in favour of respondent No.1 by the appellate revenue forum. Subsequently, Sardara, etc, the present appellants instituted suit in hand for declaration alleging therein that they being the collaterals/legal heirs of Mst. Allah Jawai were in possession of the land in dispute whereas respondent No.1 had no concern with the same and by way of consequential relief prayed for restraining respondent No.1 permanently from interfering into their possession over it and that the gift mutation sanctioned through the fictitious decree of the court was illegal, void and ineffective for the reasons that neither any declaration of gift was made by Mst. Allah Jawai in favour of respondent No.1 nor it was accepted by her and possession of the property was also not delivered to respondent No.1 in lieu of alleged gift; that respondent No.1, the alleged donee, was not related to Mst. Allah Jawai and there was no occasion for the alleged donor to make a gift of land in her favour and that neither any statement was got recorded by Mst. Allah Jawai nor she was identified by any notable person before the Civil Court, which passed the fictitious consent decree. The said suit was hotly resisted by respondent No.1. While facing with the contest of the suit, the learned trial court captured the disputed area of facts by framing the following issues:-

1. Whether Allah Jawai was owner of the land in dispute? OPP

2. Whether the plaintiffs are collateral heirs of Mst. Allah Jawai? OPP

3. If issue No.2 is proved in affirmative, whether the plaintiffs are owners in possession of the disputed land? OPP

4. Whether Mst. Allah Jawai validly gifted her property in dispute in favour of the defendant? OPD

5. Whether the gift made by Mst. Allah Jawai is void, inoperative and not binding upon the plaintiffs due to the reasons stated in para No.4 of the plaint? OPD

6. Whether the suit is not maintainable in its present form? OPD

7. Relief

3. After recording evidence of both the parties, the learned trial court dismissed the suit of the appellants vide judgment and decree dated 28.11.1977. Being aggrieved, the present appellants filed an appeal before the learned lower appellate court, which came up for hearing before the learned Addl. District Judge, Gujrat, who allowed the same vide judgment and decree dated 20.4.1982, set aside the judgment and decree passed by the learned trial court and decreed the suit filed by the present appellants. Feeling dissatisfied, respondent No.1 filed RSA No.225/1982 before this Court, which was disposed of by Justice Muhammad Sair Ali, as he then was, vide judgment dated 18.4.2006 in the following terms:-

"Examination of the impugned judgment and decree dated 20.4.1982 of the learned Additional District Judge, Gujrat shows that the ADJ failed to deal with and determine issue No.6 framed on the maintainability of the suit and also decided the remaining issues (per consensus of the learned counsel for the parties) contrary to the law. In view of the joint request of the learned counsel for the parties and for the above recorded reasons, the impugned judgment and decree dated 20.4.1982 of the learned Additional District Judge, Gujrat is set aside. Civil Appeal No.746 of 1988 titled "Sardara and another v. Mst. Bashir Begum" shall be deemed to be pending before the learned first appellate court. The appeal shall be reheard and re decided in accordance with law and on the basis of record reconstructed in this Court. The record herein constructed shall expeditiously be transmitted to the learned District Judge, Gujrat. The parties shall appear before the learned District Judge, Gujrat on 15.5.2006. The learned District Judge, Gujrat may hear and decide the appeal himself or may assign the same to any other learned Addl. District Judge. Endeavour shall be made to decide the appeal expeditiously."

4. In post remand proceedings, the learned lower appellate court vide judgment and decree dated 7.7.2008 dismissed the appeal filed by the present appellants. Seeming aggrieved, the instant second appeal under Section 100 of the Code of Civil Procedure,1908 has been filed by the appellants before this Court.

5. Learned counsel for the appellants has argued that the impugned judgments and decrees passed by both the learned courts below are against facts and law and suffer from material illegalities and irregularities; that there is no evidence on record that when alleged offer of gift was made by Mst. Allah Jawai, before whom it was accepted by Mst. Bashir Begum, respondent No.1 and delivery of possession under the alleged gift was made to her and as such necessary ingredients could not be proved by respondent No.1/beneficiary, but both the courts below without application of judicious mind passed the impugned judgments and decrees in complete derogation of material available on record; that the impugned consent decree dated 9.4.1970 and the proceedings recorded in the said suit could not be made basis to sanction gift mutation regarding the suit property owned by Mst. Allah Jawai the alleged donor, without proving all its ingredients, but the courts below failed to consider the said aspect of the case in true perspective; that neither Mst. Allah Jawai herself appeared before the Civil Court nor any statement was got recorded by her and the said alleged facts could not be proved by respondent No.1 /beneficiary and the present appellants being the legal heirs of Mst. Allah Jawai deceased are entitled to be declared owners of the disputed property while setting aside of the impugned judgments and decrees. He has lastly prayed for acceptance of the instant appeal, setting aside of the impugned judgments and decrees passed by the two courts below and that the suit filed by appellants be decreed as prayed for.

6. Conversely, the learned counsel for respondent No.1 has refuted the arguments advanced by the learned counsel for the appellants with the assertions that Mst. Allah Jawai herself appeared before the learned Civil Court in the company of her learned counsel, who did not only submit conceding written statement, but also got recorded her conceding statement while admitting the claim of respondent No.1 pleaded in the said plaint on the strength of which, order and decree dated 09.4.1970 was passed in her favour; that respondent No.1 succeeded to prove that declaration of gift was made by Mst. Allah Jawai deceased in her favour, which was accepted by her and in lieu thereof, possession of the disputed property was also handed over to her who is still in use and occupation of the same since the day of inception of the gift; that appellants were and are out of possession, who simply filed suit for declaration without seeking relief of possession, which being not maintainable was dismissed by two courts below and such findings of two courts below having been based on true appreciation of evidence, cannot be interfered with, and that strong presumption of truth is attached to the judicial proceedings, which cannot be vitiated merely on oral assertion. He while relying upon the judgments reported as Abdul Majid and others v. Khalil Ahmad (PLD 1955 Federal Court 38), Mt. Kapoori and 4 others v. Man Khan and 6 others (1992 SCMR 2298) and Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others (1996 SCMR 1729) contended that concurrent findings of fact recorded by two courts below cannot be struck down by this Court while dealing with the second appeal. He has lastly prayed for dismissal of the instant appeal.

7. Arguments heard and record perused.

8. It is admitted fact that on 7.4.1970 respondent No.1 instituted suit against Mst. Allah Jawai on the basis of declaration of oral gift allegedly made by her and the copy of the plaint thereof is available at page-87 of the instant file. The perusal of contents of the plaint clearly reveals that it is nowhere mentioned that when, where and before whom the declaration of gift was made by the alleged donor/owner, which was accepted by respondent No.1/donee and possession was also delivered in lieu thereof. There is no denial of the factum that an oral gift is permissible under the law and can be made by a Muslim owner in favour of a donee, but the same is required to be proved by production of persuasive and trustworthy evidence. As observed supra in the plaint the venue, date and the names of the witnesses are missing to prove that when, where and before whom the oral declaration of gift was effected. These are the basic ingredients to be incorporated in the body of the plaint of the suit, which are missing from its inception, but without taking into consideration the said aspect, the Civil Court proceeded to decree the suit instituted by respondent No.1 merely on the basis of conceding written statement as well as conceding statement allegedly preferred and made by Mst. Allah Jawai through order dated 09.4.1970 and no precautionary measures were adopted to satisfy the conscious of the court whether all such proceedings were being conducted without any coercion or misrepresentation on the part of the lady. The appellants being collaterals/legal heirs of Mst. Allah Jawai challenged the said decree while claiming it fictitious and against facts. There is much force in the argument of Sh. Naveed Shahryar, Advocate, learned counsel for the appellants, that the controversy arising between the parties is based on alleged consent decree, which being an agreement between the parties to the said lis, when brought under challenge, was required to be proved by the beneficiary through production of convincing and cogent evidence. This view is supplemented by the dicta laid down in the judgments reported as Habib and 8 others v. Haji Muhammad and 3 others (PLD 1970 Karachi 495), Ghulam Akbar Khan v. Haji Sher Jan and others (1989 CLC 1789) and Pir Dil and others v. Dad Muhammad (2009 SCMR 1268), wherein it is held that the consent decree passed in favour of a person does not stand on a higher footing than a contract so far as its legal character is concerned notwithstanding the fact that it has been recorded by and bears the seal of the Court. By following the ratio in the above referred dicta, it can safely be concluded that the consent decree is just an agreement between the parties of the lis, which after having been taken under dispute requires to be proved independently by production of direct affirmative evidence.

9. As per copy of the plaint, which is available at page 87, the same was instituted on 07.4.1970 by respondent No.1 and the Senior Civil Judge marked the same to the Civil Judge for 08.4.1970. As per copy of interlocutory order sheet (Exh.P2), which is available at page 89, the suit file was presented before the learned Judicial Officer on 8.4.1970, who adjourned the same to 9.4.1970 for its scrutiny. The official of the court produced the suit file after scrutiny before the learned Judicial Officer on 9.4.1970, who without issuance of summons to the rival party for any further date of hearing, received written statement on behalf of Mst. Allah Jawai, defendant, recorded her conceding statement to the effect that contents of plaint were correct and the suit was decreed on the same day. The copy of written statement filed by Mst. Allah Jawai is also available at page-90, but it is surprising to note that apparently the same was drafted on 07.4.1970 when the suit was instituted by respondent No.1, which means that the plaint and the alleged written statement of Mst. Allah Jawai were drafted on the same day. The said written statement was not signed by any counsel, rather on its back, the alleged statement attributed to Syed Ijaz Hussain, Advocate is available, who endorsed that Mst. Allah Jawai was personally known to him and she affixed her thumb impression on the conceding written statement in his presence. Admittedly, as per case diary maintained by the Civil Court, neither said Advocate put in appearance before the said Court by presenting his Vakalatnama on behalf of Mst. Allah Jawai nor power of attorney of any counsel on her behalf was ever filed on the suit file. The identification of a lady by some Advocate before the court of law, who had not been engaged through execution of any Vakalatnama attains no sanctity in the eye of law. It is also significant to note that there is no mention in the case diary that Mst. Allah Jawai had been identified by said Syed Ijaz Hussain, Advocate, before the judicial officer when the conceding written statement was filed or her statement was got recorded. It is astonishing to note that this written statement finds mention filing date as 8.4.1970 at its back, but as per case diary the same was submitted on 9.4.1970, which has also created serious doubt that how the proceedings of the court were conducted in a clandestine manner to deprive an illiterate lady from landed property.

10. Additionally, the record also affirms that no other independent advice was available to Mst. Allah Jawai, who admittedly was an illiterate and old age folk lady. If the said lady had made a declaration of gift in favour of respondent No.1 and the property of the donor was also not under any clog, then why the donee did not get it transferred by means of attestation of gift mutation or instrument. Naturally both the said deeds for its completion required independent witnesses and identifiers, which definitely were not available to respondent No.1, who managed to get it transferred through the alleged consent decree. The judicial officer to whom the case file was presented, without issuance of formal summons for the service of Mst. Allah Jawai, the defendant of the said suit, proceeded to decree the same within a span of only one or two days and that too without fetching any document of title of Mst.Allah Jawai regarding the suit property or getting her identified through any male member of the family. A judicial officer is required to exercise his jurisdiction while dealing with a case file as provided by the enactment. There was no occasion for him to decide the lis without following the procedure and that too in such a haste, which has made the proceedings conducted by him doubtful and unreliable.

11. Being beneficiary of the impugned decree, it was incumbent upon the decree holder/respondent No.1 to prove that Mst. Allah Jawai had made a declaration of gift, the same was accepted by her and possession was handed over to her in lieu thereof, and that this oral transaction was acknowledged by Mst. Allah Jawai while appearing before the Civil Court on 09.4.1970, but no convincing and reliable evidence was led by respondent No.1 in this regard to prove the alleged transaction of gift. Additionally, neither any official of the court nor the counsel/Advocate, who filed the suit on behalf of respondent No.1 and even Syed ljaz Hussain, the learned Advocate, whose statement was shown to have been recorded on the back of the written statement, allegedly filed by Mst. Allah Jawai, defendant, were brought into the witness-box by respondent No.1/beneficiary to prove that Mst. Allah Jawai, donor had appeared before the Court, who not only filed her written statement, but also got recorded her conceding statement. The other backdrop of the case is that the learned Civil Court decreed the suit vide order dated 09.4.1970 on the strength of alleged conceding statement of Mst. Allah Jawai, but the perusal of first page of decree a sheet available at pages 92-93 of the instant file reveals that it was chalked out on 08.4.1970, whereas back side thereof reflects that it was drawn on 09.4.1970, which is another strong proof to observe that a fictitious decree was obtained by respondent No.l. No doubt, under Article 129(e) of the Qanun-e-Shahadat Order, 1984, presumption of truth is attached to the judicial proceedings, but whenever these are brought under the clog/question, then beneficiary is required to prove the same under Article 58 of Order ibid, which is lacking in the case in hand.

12. It is also significant to note that the consent decree dated 09.4.1970 was kept in dark by respondent No.1 /beneficiary throughout the life of Mst. Allah Jawai, which was not implemented till her death i.e. 07.11.1972 and after the death of Mst. Allah Jawai when inheritance mutation No.162 of her legacy was sanctioned in favour of her collaterals/appellants, then respondent No.1/beneficiary brought the consent decree into light for the first time before the revenue hierarchy for its implementation and got entered mutation No.166 in her…

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