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Civil Appeal No.86 of 2011, decided on 21st October, 2014.

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 85, 102 & 103---Suit for declaration---Gift of evacuee property---Procedure---Custodian of Evacuee Property issued "no objection certificate" which was a public document---"No objection certificate" was pre-requisite for the registration of gift deed in case of evacuee property---Impugned gift deed was self-speaking and comprehensive enough---Findings of Trial Court were unexceptional and in-line with the law---Documentary evidence would exclude the oral evidence---Gift had been reduced into writing which was to be construed in accordance with its terms and in the light of facts known to both the parties---Impugned judgment passed by the Appellate Court was the result of misreading and non-reading of evidence---No forgery or fraud had been proved by the plaintiff with regard to completion of gift deed---Elements of a valid gift had been proved in the present case---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored whereby suit was dismissed---Second appeal was dismissed in circumstances. 2006 CLC 1023; 2006 SCR 38 and PLD 1990 AJK 34 ref. 2006 CLC 1023; 2006 SCR 38 and PLD 1990 AJK 34 distinguished. PLD 1994 Quetta 47; 1994 MLD 754; 2007 SCMR 236 and 2008 MLD 1571 rel.

----Gift---Essentials---Essentials of gift were offer, acceptance and delivery of possession.

----Party seeking certain relief or alleging something wrong had to prove it on its own.

----Instrument/document should be given natural meaning and all words in a deed must be taken into consideration and it should be read as a whole and be considered in totality---Document should be read and considered in its plain and simple language without putting on it any premium to achieve the object for which no provision had been laid down. Raja Javed Akhtar and Liaqat Mughal for Appellant. Mirza Tariq Mahmood for Respondents.

Through the above titled appeal, the appellant has challenged the validity and proprietary of the judgment and decree passed by the learned District Judge, Kotli on, 23-11-2011 whereby, appeal filed by Muhammad Hussain and others, respondents, herein against the judgment and decree passed by Senior Civil Judge, Kotli dated 28-3-2011, has been accepted partially. 3. Precise facts, necessary for disposal of the instant appeal are that Aimna Bibi daughter of Ghulam Muhammad plaintiff/appellant herein filed a declaratory suit in respect of land Khata Nos.444/238 survey Nos. 244,245 measuring 2 kanals 10 marlas, situated in village Panj Piran Tehsil and District Kotli against Muhammad Hussain and others defendants before the Court of Senior Civil Judge Kotli on 17-4-2007. It was averred that father of the parties has passed away long ago and the parties are co-sharers in the land khata Nos. 444 to 453 in the said village, which is in the possession of defendants. It was stated that the plaintiff remained demanding her share but the defendants used delaying tactics. It was claimed that, now the plaintiff has got knowledge that the defendants have got executed some gift deed on her behalf fraudulently. It was further stated that some other lady was presented and the gift deed was executed by practising fraud and forgery wherein the thumb impressions are also fictitious, by impersonating the plaintiff. Lastly, a prayer was made for cancellation of gift registered on 11-9-2004 and mutation of the gift-deed bearing No.1713 along with a consequential relief for recovery of possession. 4. The suit was contested by the defendants by filing written statement stating therein that the suit in its present form is not maintainable under the law of estoppel. It was also stated that the suit is liable to be rejected under Order VII, Rule 11 of the C.P.C. It was claimed that the plaintiff, by her freewill appeared before the Sub-Registrar Kotli and got executed the gift deed to the extent of her share in the suit land. It was requested that the plaintiff has got no cause of action therefore, the suit be dismissed with costs under section 35-A, C.P.C. 5. Muhammad Hussain and others plaintiffs/respondents herein, also filed a declaratory suit on 24-11-2007 regarding correction of gift deed dated 11-9-2004 in the terms that the donor/defendant donated whole of her share out of land bearing khata Nos. 444, 445 to 453 total measuring 14 kanals 18 marlas be inserted in the gift deed as the same have not been entered in the deed due to the mistake of petition writer. It was stated that Aimna Bibi/donor has executed the impugned gift deed to the extent of whole share of her in the suit land but inadvertently khata Nos. 445 to 453 could not be inserted in the gift deed. 6. This cross suit was also contested by the respective defendants on almost the same grounds, however, it was stated that the plaintiffs-defendants are bent upon to snatch and further alienate her share by committing fraud and forgery. 7. In light of the pleadings of the parties, the learned trial Court framed as well as ten issues and directed the parties to lead evidence. After completion of the proceedings, the learned trial Court vide impugned judgment dated 28-3-2011 dismissed both the cross suits for want of proof. Feeling aggrieved from the said judgment both the parties went in appeal before the learned District Judge Kotli on 27-4-2011 and 18-6-2011. The learned 1st appellate Court after hearing the parties, vide impugned judgment dated 23-11-2011 accepted the appeal filed on behalf of Muhammad Hussain and others, set aside the judgment of the Senior Civil Judge Kotli, impugned therein, partially whereas the appeal filed on behalf of Aimna Bibi, plaintiff/appellant, herein, was dismissed. The above judgment and decree of the learned appellate Court has been assailed by the appellant through the supra titled appeal. 8. Messrs Liaqat Hussain Mughal and Javed Akhtar, Advocates, the learned counsel for the appellant, reiterating the grounds taken in the appeal argued that that under Article 127 of Qanun-e-Shahadat Order 1984, it was enjoined upon the defendants/respondents, the beneficiaries of the gift-deed to prove the impugned document, its execution etc. but they miserably failed to prove the same. The learned counsel maintained that issue of proof of gift-deed should have been framed which should have been proved by the beneficiary of the document but the learned trial Court failed to do the needful. The learned counsel maintained that all the witnesses produced by the defendants/respondents negated the version of the execution of impugned deed on different grounds and there is no corroboration between the statements of the witnesses. The learned counsel stated that appearance of the donor before Patwari, petition writer, stamp-vendor and even the Registrar is not proved hence, the document, on the face of it was a fictitious one. The learned counsel, with regard, to the suit filed on behalf of Muhammad Hussain and others argued that if for the sake of arguments, it is admitted that the document was genuine, even then the same is to the extent of khata No.444 and there was no reason before the learned 1st appellate Court to order the incorporation of khata Nos. 445 to 453 in the said document. The learned counsel claimed that the learned 1st appellate Court also failed to read and appreciate the oral and documentary evidence brought before it by the parties in its true perspective and erroneously accepted the appeal filed on behalf of respondents, herein, which judgment and decree, being contrary to law and facts/ circumstances of the case is liable to be set aside. In support of the submissions, the learned counsel referred following case law and craved for acceptance of the appeal. (1) 2006 CLC 1023, (2) 2006 SCR 38 and (3) PLD 1990 AJK 34. 9. Mirza Tariq Mahmood, Advocate, the learned counsel for the respondents, while controverting the arguments advanced on behalf of the appellant, forcefully argued that the instant case is a case of no evidence on behalf of appellant. The learned counsel maintained that burden of proof of issues Nos. 1 to 3 was on the plaintiff/appellant who failed to prove the same hence, these issues were decided against her by the learned trial Court but the learned trial Court failed to consider the facts proved by the present respondents and dismissed the suit for correction of the document. The learned counsel maintained that the learned 1st Appellate Court, being an equal Court of facts, after having heard the parties, considered the controversy at length has rightly accepted the appeal and decreed the suit filed by the respondents herein which being strictly in accordance with law does not warrant any interference by this Court and requested for dismissal of the appeal with heavy costs. 10. I have heard the learned counsel for the parties, perused the record, appended therewith and considered the precedent case law, referred by the appellant with utmost care. 11. Firstly I would like to attend and resolve the controversy raised by the appellant herein by filing suit for cancellation of gift-deed on the ground that the same has been obtained by practicing fraud and impersonation. It may be observed that though the plaintiff-appellant, herein, filed the suit for cancellation of the impugned document but the record shows that the plaintiff, being alive did not bother to appear before the competent Court herself and assert her version, resultantly, the claim of the plaintiff stood rejected by the trial Court, therefore, in my considered view the question of cancellation of a validly registered document does not arise, especially in presence of the concurrent findings of the Courts below no adverse resolution can be passed. 12. Now I would like to take up the question regarding correction of gift-deed. After scanning the record of the case, it may be observed that the suit for correction was filed on the ground that the petition writer could not incorporate khata numbers 445 to 453 in the gift-deed. The oral evidence of petition writer, and other pieces of oral evidence including the sister of the donor regarding the intention of the donor to gift out whole of her share out of khata Nos.445 to 453 has been scanned and a comparative scrutiny of this evidence with the contents of documentary evidence adduced in both the cases by respondents Muhammad Hussain and others, it can safely be concluded that 1st appellate Court fell in error while appreciating this evidence and could not read the order of Tehsildar dated 9-10-2008, report of Patwari of 2007 Exh.DA and Exh.DE respectively as well as the contents of NOC issued for the registration of gift-deed which is a pre-requisite in case of evacuee property as is in this case. NOC dated 27-5-2004 issued by the Assistant Custodian District Kotli, which though have not been tendered in evidence but is a public document in terms of Article 85 of Qanun-e-Shahadat Order, 1984 and the same is the part of the file. This very document shows that there were four khasra numbers i.e. 124, 124/1, 244, 245 and the total land was 4 kanals 7 marlas belonging to both the parties including Said Begum, mother of the parties. The NOC further declared that the same has been obtained by Muhammad Hussain and Karim Daad for getting the whole share of their sisters. This document has been filed by Muhammad Hussain and others respondents herein, but the same negates their version taken in the suit for correction of the gift-deed pertaining to khata Nos. 445 to 453. Moreover, the impugned gift-deed registered on 11-9-2004 is self speaking and comprehensive enough. 13. It may also be stated that order of Tehsildar Kotli dated 9-10-2008 Exh.DA and report of Patwari dated 30-8-2007 and Tehsildar dated 5-9-2007 Exh.DE also negate the version of the plaintiffs-respondents, hence, this Court is justified to hold that the findings of the trial Court on both the suits were unexceptional and in line with the law on the subject and no interference was warranted. 14. It is settled law that a party seeking certain relief or alleging something wrong has to prove it on its own. It is also settled law that documentary evidence exclude the oral evidence. In the instant case gift-deed is deposition of subject property by way of a document reduced in writing under Article 102 of Qanun-e-Shahadat Order, 1984 and in this case under Article 103, the oral evidence of the donees regarding the description of property other than mentioned in the contents of the deed stands excluded in presence of above referred documentary evidence read with the contents of impugned gift deed. In this regard, section 103 of Qanun-e-Shahadat Order, 1984, is the governing law on the point. In order to elaborate the commandment of law, it deems proper to reproduce the above noted section which reads as under:-- 103. Exclusion of evidence of oral agreement.---When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Article, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: xxxxxxxxxxxxxxxxxxxxxxxxxxx 15. By now, law is well settled that for interpreting any instrument/ document, it should be given natural meaning and all words in a deed must be taken into consideration and it must be read as whole, and be considered in totality. It is also the intent of law that a document should be read and considered in its plain and simple language without putting on it any premium to achieve the object for which no provisions have been laid down. It may also be added that the impugned gift-deed is to be construed in accordance with its terms and in the light of facts known to both the parties. This view of the court is fortified by PLD 1994 Quetta 47, 1994 MLD 754, 2007 SCMR 236 and 2008 MLD 1571. 16. After having considered the above reproduced provision of statutory as well as the case law and the controversy in hand with due care I am of the view that a case of interference in the impugned judgment on the ground of missreading and non-reading of evidence has been made out, however, the version of the appellant regarding obtaining of gift-deed through forgery and fraud is not proved, hence, the resolution passed by both the Courts below to that extent being concurrent merit endorsement and I accordingly order. 17. The case law referred by the learned counsel for appellant in view of the above conclusion need not to discuss because it relates the proposition of gift without possession which is alien to the proposition in hand. Whereas in the instant case all the three elements of a valid gift, offer, acceptance and delivery of possession are proved rather admitted as the suit of the appellant is for recovery of possession too. 18. The nutshell of the above detailed discussion is that the instant appeal is accepted. Impugned judgment and decree passed by the learned District Judge Kotli on 23-11-2011 is hereby set aside, resultantly, the judgment and decree passed by the learned trial Court dated 28-3-2011, whereby, both the suits were dismissed for want of proof stands restored and shall prevail. 19. Order announced. The file shall be consigned to record after completion, by sending back the record of the courts below. No order as to costs. AG/7/HC(AJ&K) Appeal allowed.

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