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Civil Revision Application No. 3 of 1983, decided on 8th April, 1987'

‑‑‑S. 115‑‑Revisional jurisdiction‑‑Concurrent findings of facts‑‑High Court, in exercise of its revisional jurisdiction, does not, ordinarily interfere with concurrent findings of Courts below with regard to questions of facts‑‑Court's below found to have discussed evidence and questions of facts and law involved in case at length and giving cogent reasons for dismissing suit and appeal of applicant‑‑No reason found for interference with such concurrent findings‑‑Revision application dismissed.

Kanwal Nain v. Fateh Khan P L D 1983 S C 53 ref.

‑--‑Gift‑‑Oral gift‑‑Pre requisites for validity.

Mir Haji Ali Ahmed Talpur and others v. Government of Sind and others P L D 1976 Kar. 316 ref.

‑‑‑S. 115‑‑Muhammadan Law‑‑Gift‑‑Oral gift of house‑‑No evidence on record to show that donor husband had delivered possession of house to donee‑wife or at least made any declaration to the effect that he delivered possession of the house to donee‑‑No such averment having been made even in plaint‑‑Court did not frame any issue on the point for which applicant‑donee could only blame herself‑‑ Applicant‑donee in joint possession of house not only with her deceased husband but with her daughters who lived in same house and still continued to live there‑‑Contention that daughters of applicant‑donee had admitted in writing before Excise and Taxation Authorities about the gift not proved by evidence‑‑Trial Court as well as Appellate Court had rightly held (i) that there was no proof of such admission or acceptance of gift on part of applicant's daughters nor any entry in taxation Register conferred any right upon applicant as owner and (ii) that deceased donor, who at relevant time had no title over plot of house, could not have transferred any right in plot to any person‑‑Revision dismissed in circumstances.‑‑[ Muhammadan Law].

‑‑‑O.XIV, Rr. 1 & 3‑‑Issues, framing of‑‑Issues are framed on pleadings of parties only on such facts and points which are in dispute between them.‑‑[Pleadings‑‑Practice and procedure].

Osman Tasbhai for Petitioner.

Muhammad Idrees for Respondents.

Date of hearing: 5th April, 1987.

This revision application is filed against the judgment of the IInd Additional Sessions Judge, Karachi, dated 9‑8‑1982, whereby he dismissed the Civil Appeal No.574 of 1980, filed by the applicant against the judgment of the learned Senior Civil Judge, Karachi, dated 9‑8‑1980, dismissing the Civil Suit No.2724 of 1976 filed by the applicant.

The dispute between the parties relates to the Plot No.1401 situated in Gali No.7, Jinnahabad No.l, Karachi, which belongs to Karachi Metropolitan Corporation respondent No.4, and which was in possession of one Abdullah, husband of the applicant and father of respondents Nos. 1 to 3, who are real daughters of the applicant. This Abdullah raised construction over this Plot. The applicant claimed, that her deceased husband, before his death in 1970, had gifted this house by way of oral gift in her favour, which oral gift was subsequently, confirmed by the respondents Nos.l to 3, and her fourth daughter, Mst. Gul Fatima, before the Excise and Taxation Authorities, on the basis of which record or rights was mutated in her favour. The applicant continued to pay the K.M.C. and Excise taxes and other dues. However on 17‑5‑1977, the respondent No.4, sent a letter purporting to issue lease in the joint names of the applicant, and her four daughters including the respondents Nos.l to 3. When the representations of the applicant did not find favour with the respondent No.4, she filed a suit for declaration, that she is owner of the plot and house in dispute, which was orally gifted to her by her deceased husband and for injunction against the respondents, not to interfere in her right of possession and ownership and for directions to respondent No.4 to issue lease in her favour. Suit was contested by the respondents Nos.l to 2, who denied the gift as well as subsequent confirmation by them of this alleged oral gift. They also raised certain legal pleas. The respondent No.4 also contested the suit and denied any exclusive right of the applicant over the plot in question, and further raised the plea, that any entry in the Excise and Taxation Department register was no proof of the title of the applicant. On the pleadings of the parties the learned trial Judge settled the following issues.

(1) Whether the plaintiff is exclusive and lawful owner of the suit property by virtue of gift made by her husband Abdullah Khan

(2) Whether the defendants Nos.l to 3 made any declaration in favour of plaintiff, if so, what is effect

(3) Whether land in dispute belongs to K.M.C.

(4) Whether alleged gift and declaration are void

(5) Whether defendant No.4 has no right or authority to lease the Plot No.1401, Gali No.7, Jinnahabad No.l, Karachi, to the legal heirs of deceased Abdullah Khan i.e. plaintiff, defendants Nos.l to 3 and Mst. Gul Fatima

(6) Whether plaintiff is legally entitled to get the leases the plot in suit executed in her favour from defendant No. 4, and defendant No.4 are bound by law to execute the same only in plaintiff's favour

(7) Whether the suit is barred by law

(8) Whether suit is bad for non‑joinder of necessary parties

The learned Civil Judge decided issues Nos.7 and 8, which are legal issues against the respondents against which no appeal was filed, nor are these issues pressed in this revision application. Finding other issues against the applicant, learned trial Court dismissed the suit of the applicant, whose appeal was also dismissed vide the impugned judgment.

I have heard the learned counsel for the parties, and have also perused the record and proceedings of the Courts below.

It will be seen, that issues in the suit are mostly issues of fact and if any point of law is involved, it is also based on the findings of the facts. There are concurrent findings of Courts below with regard to the questions of the facts. This Court, in exercise of its revisional jurisdiction, does not, ordinarily, interfere with such concurrent findings of the Courts below. Reference may be made to the case of Kanwal Nain v. Fateh Khan P L D 1983 SC 53. It is held by their Lordships 'revisional powers under section 115, C.P.C. are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. Also ordinarily decisions of the facts are not revisable except in cases, where the decision is based on no evidence, on inadmissible evidence or is so perverse that grave injustice would result therefrom.

The main issue in the case involved is, whether the house on the Plot in question was validly transferred by way of oral gift to the applicant by her deceased husband. There can be no doubt, that burden of proof of this issue was upon' the applicant and both the Courts below appear to have held, that she was not able to discharge this burden of proof.

The oral gift is recognized under the Muslim Law, but there are certain prerequisites of this oral, gift. These prerequisites have been discussed in the case of Mir Haji Ali Ahmed Talpur and others v. Government of Sind and others P L D 1976 Kar. 316. A Division Bench of this Court has held as under:‑--

"It is well‑known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are (1) a declaration of gift by the donor (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject‑matter of the gift by the donor to the donee.

It is further held as under:‑------

"A husband making gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisites of a valid gift, by making a declaration to the effect, that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan law."

Thus, the applicant had to prove‑‑--------

(1) that the deceased, Abdullah, had made oral gift of house in her favour.

(2) that she had accepted such gift.

(3) that the donor had transferred the possession of the house to the applicant alongwith the oral gift.

It is contended by the learned counsel for the applicant that the evidence of the applicant and her witnesses, that her deceased C husband had orally gifted the house in her favour is not challenged in their cross‑examination and therefore, should be taken as correct.

He further contended, that the fact that subsequently she got record of rights mutated and paid the taxes also shaves, that she did accept the gift. Even if the evidence of the applicant and her witnesses, is accepted as proof of the two ingredients required to prove the validity of oral gift under the Muslim Law, still I find, that there is no evidence on the record to show, that donor had delivered possession of the house to the applicant or at least at the time of making the alleged oral gift, made any declaration to the effect that he delivered the possession of the house to the applicant. As a matter of fact, I find that no such averment is made even in the plaint.

In para. No.l of the plaint, the applicant claims to be owner of the plot in question as it was orally gifted to her by her deceased husband. In para. No.3 she only avers, that respondents Nos.l to 3 and her fourth daughter, Mst. Gul Fatima, submitted before the Excise and Taxation Authorities admitting the oral gift on the basis of which record was mutated in her favour. She further averred in this para. that she was already in possession of the house.

It is contended by the learned counsel for the applicant, that as the applicant was already in possession, no such declaration about delivery of the possession was necessary. I have already referred to the law laid down by a Division Bench of this Court, under which even in case of oral gift of house to the wife in possession, the husband has to make a declaration showing his intention to deliver the possession to the wife. In the instant case, the applicant was not alone in possession, but she was in joint possession of the house, not only with her deceased husband, but with her daughters, including the respondents Nos.l to 3, who admittedly, lived in the same house, and still continue to live in the same house. The learned counsel for the applicant conceded, that there was no evidence to show, that there was delivery of the possession at the time of oral gift or that there was any such declaration by the donor at the relevant time. He further contended, that there was no such issue framed by the warned trial Court, and as such the applicant did not have opportunity adduce evidence on this issue. The issues are framed by the Court on the pleadings of the parties. The Court has to find what facts are asserted by the plaintiff in the plaint, which are admitted or denied by the defendants in their written statement. The issues are framed only on such facts and points, which are in dispute between the parties. I have already pointed, that even in the plaint, there was no assertion or averment made by the applicant, that there was any delivery of possession or declaration of such intention at the time of oral gift, consequently, there could be no admission or denial on this point. It is only natural, that Court did not frame any issue on this point, for which the applicant can only blame her3elf. The gift is alleged to have been made in 1970 viz. 17 years back, and even the suit has been filed about 10 years back. The applicant now cannot be allowed to improve her case to claim, that the possession was delivered to her by her husband at the time of alleged oral gift or that any such declaration was made by him.

It is contended, that the respondents Nos. 1 to 3 had admitted in writing before the Excise and Taxation Authorities about this gift, which was acted upon. I have already pointed, that the respondent Nos. 1 to 3 have denied any such admission. The alleged writing is not produced in evidence by the applicant, who claims to be in possession of the same. In view of this admitted position, the learned trial Court as well as the Appellate Court, rightly held, that there is no proof of such admission or acceptance of the gift on the part of the respondents Nos.l to 3, and nor any entry in taxation register conferred any right upon the applicant as owner. It is also rightly held by the Courts below, that the deceased, Abdullah, who at the relevant time, had no title over the plot, as it was not regularised or transferred by the respondent No.4 in his favour could not have transferred by way of transferred any right in the plot to any person.

Both the Courts below have discussed the evidence and question of facts and law, involved in the case, at length, and have given cogent reasons for dismissing the suit and appeal of the applicant, I find absolutely no reason to intefere with their concurrent findings, in exercise of revisional jurisdiction of this Court. The revision application is accordingly dismissed. Under the circumstances, the parties are directed to bear their own costs.

The revision application was dismissed by a short order dated 5‑4‑1987. The above are the reasons in support of the said order.

S.Q/J‑13/K Petition dismissed

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