IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Civil Rev. Appln.S-74 of 2021    :         Ayaz Ali Bhatti vs.

                                                          Imtiaz Ahmed Bhatti & Others

For the Applicant                       :         Mr. Noushad Ali Tagar

         Advocate

Date of hearing                         :         17.01.2022

Date of announcement              :         17.01.2022

ORDER

Agha Faisal, J.         (1) Urgency granted. (2) Deferred (3) Granted subject to all just exceptions (4) & (5) Briefly stated, a suit for partition was determined by the learned Senior Civil Judge-I Larkana, vide judgment dated 21.12.2019, whereby the suit property was directed to be apportioned in accordance with Shariah and distributed amongst the legal heirs. The present applicant had claimed that a constituent of the legacy had been gifted to him, hence, not amenable to be distributed amongst the remaining legal heirs. The said contention was not accepted by the learned trial court and the appeal there against was also dismissed by the learned VI-Additional District Judge, Larkana vide judgment 03.05.2021.

2. Applicant's counsel submits that the learned trial court did not appreciate the evidence in its proper perceptive and directed that the entire estate to be distributed amongst the legal heirs, without appreciating that a portion thereof had been gifted thereto. It was submitted that neither the trial court nor the appellate court was able to appreciate this contention, hence, the present revision.

3. Heard and perused. It is trite law that revisional jurisdiction is not a subsequent forum of appeal and that jurisdiction is to be exercised solely within the precepts of Section 115 C.P.C. It is in this backdrop that the present application and the contentions of the learned counsel must be appreciated.

4. The issue of the purported gift was considered by the learned trial court and found not to be proven in evidence. It is considered illustrative to reproduce the operative findings herein above:

"19. The onus to prove this issue was upon the shoulders of defendants Nos.3-A to 3-G as they claimed that deceased Abdul Razzaque had gifted half of Survey Nos.27/1 and 28/1 Ward ‘C’ Lahori Mohallah Larkana to their father (defendant No.3) in presence of witnesses.

20. To prove this issue defendant No.3-B entered witness box and deposed that his grandfather gifted suit property to defendant No.3 in presence of witnesses namely Nisar Ahmed Bhatti (defendant No.1) and Saleemullah and they have been in its possession since then. During cross examination he deposed that gift was made in 1988 in daytime. He further admitted that he had heard about the gift of suit property which means it was not gifted in his presence. He admitted that mutation in respect of gift was not made during lifetime of his father. Gift was also not registered by his grandfather as well as father. He also admitted that at the time of gift the property was not mutated in the name of his grandfather.

21. With regard to gift, defendant No.1 deposed that about 5/8 months before his death, his father gifted eastern portion of Survey No.27/1 to defendant No.3 in his and Saleemullah’s presence. During cross examination he deposed that at the time of gift his father was sitting in the room of plaintiff No.2. He further deposed that defendant No.3 was already living in the suit property. He denied that at the time of gift his father was ailing. He admitted that he does not remember the date of gift of suit property but it was made at noon time.

22. Saleemullah Bhatti in support of this issue deposed that; 25/30 years ago he along with Niaz and Abdul Jabbar had gone to visit Abdul Razzaque. Nisar Ahmed was already sitting there. Abdul Razzaque told that he was gifting eastern portion of the suit property to Ayaz Ahmed. During cross examination he deposed that they were sitting in the room of Ayaz Ahmed. He admitted that he does not remember the date, month and year of gift but it was before Zuhar prayer. He admitted that donor did not state measurement of the property of gift and just stated that he was gifting eastern portion.

23. From the above excerpts taken from the depositions of defendants who deposed in favour of gift it is crystal clear that witnesses have not appreciated each other’s versions. Defendant No.3-B asserted that gift was made in presence of Nisar Ahmed and Saleemullah. Defendant No.1 also claimed that gift was made in his and Saleemullah’s presence but Saleemullah asserted that at the time of gift Niaz and Abdul Jabbar were also accompanying him. It is also relevant to mention here that in the written statement defendant Nos.3-A to 3-G had stated that gift was made in presence of Nisar Ahmed, Saleemullah, Niaz Hussain and Abdul Jabbar. So defendant No.3-B himself contradicted his own written statement during his deposition. Moreover, defendant No.1 stated that at the time of gift they were sitting in the room in which plaintiff No.2 resides but on the contrary Saleemullah deposed that they were sitting in the room of Ayaz Ahmed.

24. Both the witnesses of alleged gift did not know the date, month and year of gift which also creates doubt on the claim of gifting of suit property. It was also not clear how much of the Survey No.27/1 and 28/1 was gifted to defendant No.3. It is also worth mentioning here that defendant No.1 had stated during his deposition that his father gifted eastern portion of Survey No.27/1 to defendant No.3 whereas in written statement it was claimed that half of Survey Nos.27/1 and 28/1 was gifted to defendant No.3. 

25. Defendant No.3-B claimed that they are in possession of suit property since its gift but it is not true as defendant No.1 admitted that defendant No.3 was already residing in suit property even before gift.

26. It is settled law that there are three essential ingredients i.e. Offer by the donor, Acceptance of gift by the donee and delivery of Possession under gift, for determining whether gift was valid or not. Reliance placed on ‘Bilal Hussain Shah & Another vs. Dilawar Shah’ (PLD 2018 SC 698).

27. It was also held by Honourable Supreme Court in its judgment reported as ‘Mrs. Khalida Azhar vs. Viqar Rustam Bakhshi & Others’ (2018 SCMR that “However, the said respondent was still required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the respondent No.1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh. DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him.

(underlining for emphasis)

28. It is apparent from the depositions of witnesses of alleged gift that they failed to disclose the date, time and correct place of the offer of gift and acceptance thereof.
29. It is also worth mentioning here that none of the witnesses deposed that defendant No.3 was also present in the room when gift was made because after offer of gift by Abdul Razzaque it was necessary that offer of gift be accepted but since the presence of defendant No.3 is not proved at the place where allegedly gift was made then the acceptance also stands unproved. Whereas, defendant No.3 was already in possession of some of the portions of suit property which means possession was not handed over to him under alleged gift. Hence all three ingredients could not be proved by defendants Nos.3-A to 3-G for proving this issue thus it is answered in negative."

5. The judgment in appeal demonstrates that the main contention of the appellant was with respect to framing of certain issues which the learned appellate court considered extraneous to the core issue at hand. In determining the appeal, the learned appellate court observed as follows:

"The careful assessment of the record reveals that the main contention involved herein is that the learned trial Court has framed the additional issues, after recording evidence but it was quite incredible and do not attract to judicial conscience that both the parties neither raised any objection over it, nor challenged the same before the appellate forum for editing or deleting such issues but submitted the statement adopting the evidence recorded earlier, therefore, the objection raised by the appellants at appellate forum for framing of amended issues by the learned trial Court without any application moved by either side is meaningful, as such, the prayer of appellants with regard to reversal of the judgment and decree carries no substance. It is well settled principle of law as observed by the Honourable Apex Court that “framing or non-framing of issue cannot be a ground for reversing the judgment and decree of any court and party cannot pray for remand of the matter at later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed. The reliance is placed upon case law reported in 2020 SCMR-2033. In addition to this, the further perusal of the plaint reveals that there is missing of essential three ingredients of a valid gift included declaration/offer by the donor; acceptance of gift by the donee; and, delivery of possession under the gift. The reliance in this context is made to the case reported in 2012 SCMR-1602.

The over-all discussion involves conclusion that learned trial Court has rightly discussed the issues and then passed by the judgment and decree by following the principles of law. The point under discussion is thus answered accordingly.

The sequel of discussion on the foregoing point is that I find no any illegality, irregularity or infirmity in the appreciation of evidence while passing the judgment and decree by learned trial Court, which even otherwise do not call for any interference at this forum. Consequently, the instant appeal merits no consideration, which is dismissed accordingly, with no order as to costs."

6. The issue of the existence of a valid gift or otherwise, has been considered by the learned trial court and its findings thereon are duly recorded in the respective judgment. It is demonstrated form the record that the said findings could not be dislodged by the present applicant in the appellate proceedings. The claim of the applicant, in so far as the gift is concerned, had to be proven on its own merits and the applicant appears to have failed in such regard.

7. This Court has carefully considered the contentions of the applicant and has noted the inability of the learned counsel to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.

8. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the respective judgments meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.

JUDGE