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Civil Petition No. 648 of 1977,

decided on 25th July, 1979.

(On appeal from the judgment and order, dated 11‑10‑1977 of the Lahore High Court at Lahore in Civil Revision No. 71‑75/BWP).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑Transfer of Property Act (VI of 1882), S.49‑‑Suit for declaration‑‑Leave to appeal granted to consider contentions that findings of High Court in revision were against record and an interference with concurrent findings of fact by two lower Courts; that value of suit land being more than Rs.100 gift thereof required to be in writing only registered in accordance with law; and petitioners as bona fide transferees of property for valuable consideration without notice were protected under law and plaintiff was estopped by his conduct from challenging sale in their favour.

Mian Allah Nawaz, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Petitioners.

Rafiq Ahmad Sabir, Advocate Supreme Court and Muhammad Aslam, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 21st February, 1979.

‑This is a petition for special leave from the judgment, dated 11th of October, 1977, passed by a learned Judge of the Lahore, High Court, Bahawalpur Circuit, whereby he accepted the Civil Revision No. 71/75/BWP filed by respondent No. 1 herein against the present petitioners and the remaining respondents.

On the 25th of November, 1970, Maulvi Noor Hussain respondent No. 1 brought a suit against the present petitioners and the remaining respondents Nos. 2 to 14, out of which this petition has arisen in the Court of Senior Civil Judge, Bahawalpur for a declaration that he was the owner in possession of land measuring 15 Kanals 5 Marlas bearing Khata No. 52, Khatauni No. 164, Khasra No. 363/13, Square No. 46, Killa Nos. 14‑Alaf, 15,16,17,23 and 24 situated in Chak No. 4/C.B. Tehsil and District Bahawalpur. According to the plaintiff this land originally belonged to Major Shams‑ud‑Din deceased and in lieu of the services rendered by him and his late father he made an oral gift of the same in favour of the plaintiff and delivered its possession to him. At the time in accordance with the directions and at the expenses contributed by the donor the plaintiff constructed a room for running a school by the name of Taleem‑ul‑Quran for imparting religious education there. The plaintiff was still running the school under his supervision on the land in suit in his possession. Afterwards the plaintiff also raised a building at the site which was rented out by him to tenants and is in his continuous possession. It is further alleged that after about one year of the oral gift on the 2nd of January, 1961, Major Shams‑ud‑Din deceased also executed an acknowledgment about the oral gift in the presence of the witnesses. But after the death of the donor his legal heirs defendants Nos. 1 to 12, sold the land in favour of the petitioners /defendants Nos. 13 and 14 by a registered deed of self executed on the 12th of February, 1969. This sale was afterwards pre‑empted by defendant No. 15 who was impleaded as a party to the suit. The plaintiff has alleged that the impugned sale was ineffective against his rights as a donee in possession of the land lawfully vested in him.

The proceedings were taken ex parte against defendants Nos. 1 to 12. Only the petitioners‑defendants Nos. 13‑14 contested the suit. In their written statement they denied the factum and the validity of the gift allegedly made by Major Shams‑ud‑Din deceased in favour of the plaintiff and submitted that the so‑called acknowledgment of the gift in dispute, dated 2nd of January, 1961 on which the plaintiff had relied was a fictitious and forged document. At any rate, according to them, it was inadmissible in the evidence for want of registration in accordance with the provisions contained in section 17 of the Registration Act. They also denied that the alleged gift was at any time completed by delivery of possession of the land by the donor in favour of the plaintiff. According to them on the death of Major Shams‑ud‑Din the land was lawfully mutated in the names of his legal heirs who had afterwards sold the same to them for Rs.8,000 by means of the registered deed of sale and had delivered its possession to them.

The trial Court framed the following issues arising out of the pleadings of the parties in the case,‑

(1) Whether the plaintiff is in possession of the property in dispute If not, what is its effect

(2) Whether a valid gift deed had been made by Shams‑ud‑Din deceased in favour of the plaintiff

(3) What is the effect of the non‑registration of the alleged acknowledgment of gift on the rights of the parties

(4) Relief.

The plaintiff examined 8 witnesses in support of his case whereas the contesting defendants produced three witnesses in rebuttal. The parties also relied on some documentary evidence produced by them. Bashir Hussain Shah (P.W. 1) and Muhammad Tufail (P.W. 2) deposed to have purchased some trees standing on the land from the plaintiff about 10/11 years back but they failed to produce the receipt obtained by them in support thereof. Makhdoom Siraj Ahmad (P.W. 3) was the General Manager of Major Shams‑ud‑Din deceased and was a witness of the Hiba which was primarily oral but subsequently an acknowledgment of the gift was executed by this witness and signed by Major Shams‑ud- Din in his presence. However, according to the witness the donor did not take any steps during his lifetime for the registration of the docu ment and attestation of the mutation in favour of the plaintiff. Sardar Muhammad (P.W. 4) and Abdul Aziz (P.W. 5) deposed to be the tenants of the shops under the plaintiff and the former also proved the execution of the rent note (Exh. P.2) in favour of the plaintiff. Ghulam Muhammad (P.W. 6) wanted to take possession of the land forcibly from the plaintiff. He had set a Chhapar on fire and was prosecuted under section 107/151, Cr.P.C. alongwith his companions. Ghulam Muhammad (P.W. 7) is a witness of the acknowledgment of gift (Exh.P.l) executed by Major Shams‑ud‑Din deceased in favour of the plaintiff. The plaintiff appeared as his own witness (P W. 8), in support of his case. On the other hand the defendants produced Syed Hyder Abbas to prove the registration of the sale‑deed (Exh. D. 1) in their favour. Chaudhry Ghulam Hussain (D.W. 2) was appointed as a Local Commissioner in support of his report. One of the defendants appeared as his own witness (D.W. 3) in support of his case. The defendants also relied on copies of the revenue record produced by them.

The learned Administrative Civil Judge, Bahawalpur was not impressed by the oral testimony of the plaintiff's witnesses and from the copies of the revenue record consisting of the Jamabandi for the years 1961‑62, 1965‑66 and 1970‑71 (Exhs. D.2 to D.4, respectively) and the copy of the Khasra Girdawari from Kharif 1967 to Rabi 1971 (Exh. D. 6), he was satisfied that the plaintiff was never put in possession of the suit land in pursuance to the gift allegedly made in his favour. He also observed that the oral evidence consisting of the statements of interested witnesses was contradictory and did not inspire confidence. The acknowledgment of gift (Exh. P. 1) was an unregistered document. It was compulsorily registrable under section 17 of the Registration Act. It did not, therefore, effect immovable property and confer any title on the plaintiff under section 49 of the Act. In conclusion, therefore, the learned Administrative Civil Judge dismissed the suit of the plaintiff on the 17th of November, 1971. These findings were substantially affirmed on appeal rejected by the learned District Judge, Bahawalpur on the 5th of June, 1975. From the evidence he was not satisfied about the factum of the oral gift in suit made by Major Shams‑ud‑Din deceased in favour of the plaintiff and the delivery of the possession of the land to him. He was of the opinion that the memorandum of gift (Exh. P. 1) was not compulsorily registrable under section 17 of the Registration Act. and that the acknowledgment was admissible in the evidence. Nonetheless, according to him the plaintiff had failed to prove the oral gift allegedly made in his favour.

But on revision a learned Judge of the High Court reversed these findings of the two Courts below. He laid particular emphasis on the document (Exh. P. 1) and observed that its genuineness could not be doubted. It contained an acknowledgment about the making of an antecedent oral gift by Major Shams‑ud‑Din in favour of the plaintiff. It further proved that the donor had also entrusted the work of construction and completion of the building for the Taleem‑ul‑Quran school to the plaintiff and that the same was done in accordance with his choice and instructions on the land in dispute. The delivery of possession to the donee was thereby also acknowledged. This document was duly proved by (P.W. 3) Mukhdoom Siraj Din who was the General Manager of the donor and Ghulam Muhammad (P.W. 7) its marginal witness. Bashir Hussain Shah (P.W.1) and Muhammad Tufail (P.W. 2) proved the plaintiff's possession and stated that the land was Banjar partly built up. Sardar Muhammad (P.W. 4) was a tenant of one of the shops built or, the land and proved the gift and the delivery of possession of the plaintiff. Abdul Aziz (P.W. 5) another tenant of the plaintiff was produced in support of his case. The evidence was not sufficiently rebutted by the testimony of defendant No. 13 who appeared as his own witness. He, however, in his statement before the Local Commissioner admitted that on the land in dispute before the purchase a Jhugi and a shop was in existence. From this the learned Judge in Chambers observed that the fact that these constructions were not shown or incorporated in the revenue record proves that the same could not be relied upon for its contents and the possession. He was satisfied with the testimony of the plaintiff (P.W. 8) as a witness of truth and it was clear that not only the possession of the gifted land was delivered to him but he had also raised the construction thereon during the lifetime of the donor. In his opinion the two Courts below had acted unlawfully and with material irregularity in holding that the document (Exh. P. 1) required registration and that it was not admissible in evidence. In passing, however, the learned Judge in Chambers admitted that unfortunately the exact location of the school was not established and that respondent No. 12 had stated that it was situated in Killa No. 22 and not in the land in suit. Despite this finding the High Court in accepting the revision set aside the judgment and the decree passed by the two Courts below and decreed the suit of the plaintiff‑respondent No. 1 against the defendants.

We have heard the learned counsel for the petitioners. We have been taken through the report submitted by the Local Commissioner appointed by the trial Court in this case. In the proceedings before him the plaintiff prevaricated and stated that he did not remember the number of the Killa 'on which the school is situated and when pressed further he was constrained to admit that perhaps it was situated on the Government land. Muhammad Saleem Patwari in his cross‑examination stated that none of the shops was situated on the land in suit. In this connection even the High Court also observed in its judgment that the exact location of the school was not established and that according to respondent No. 12 it was situated on Killa No. 22 and not in the land in dispute. The learned counsel also submitted before us that the land in suit was admittedly of the value of more than Rs.100 and the alleged gift was, therefore, required to be in writing duly registered in accordance with the law. Even otherwise, according to the learned counsel, the findings recorded by the learned Judge in Chambers are against the record. He has further erred in law in interfering in revision with the concurrent findings of fact recorded by the two lower Courts. Moreover, reliance was placed on the provisions contained in section 49 of the Transfer of Property Act to contend that the petitioners as bona fide transferees of the property for valuable consideration without notice were protected under the law and the plaintiff‑respondent No. 1 was estopped by his conduct from challenging the sale in their favour.

These contentions raised before us require further consideration. We, therefore, grant leave to appeal to the petitioners.

Security Rs.1,000.

M.I. Leave granted.

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