KIRAN ANAND LALL, J. - (1.) THIS appeal is directed against the judgment and decree of the first appellate Court vide which the judgment and decree of the trial court, were set aside, and the suit of appellants was dismissed.
(2.) AS per facts given in the plaint, Smt. Ghunni was owner of 1/8th share in the land measuring 68 kanals 6 marlas, detailed in para No. 3 thereof. A private partition, later, took place between the co-sharers, wherein land measuring 8 kanals 6 marlas, comprised in khasra No. 2297/6-18, 2286 min/1-8, fell to her share. A memorandum with regard thereto was brought into existence, on 13.11.1980, and report No. 233 dated 24.1.1981 was also got entered in the record of the Patwari Halqa. After sanction of mutation No. 10577, the factum of partition found place in the jamabandi for the year 1983-84, also. Smt. Ghunni died in the year 1983, leaving behind three sons, Abdulla, Abdul Rehman, and Ismail, and three daughters, Aishan, Halima and Zubedan. In the suit, Ismail and Aishan were plaintiffs, Abdul Rehman and his wife, Sadiqan were the contesting defendants, and Abdulla, Halima, and Zubedan were proforma defendants. The case of the plaintiffs was that Sadiqan colluded with the revenue authorities and got a mutation, bearing No. 10664, sanctioned in her favour, on the basis of an oral gift, allegedly, made by Ghunni, in her favour, in respect of the suit land. Ghunni, according to the plaintiffs, never made any such gift in favour of Sadiqan nor she delivered possession of land to her. The mutation proceedings pertaining to the gift were also fake. It was further pleaded that the parties are governed by Mohammadan law, and as per that, the plaintiffs, who are son and daughter of Ghunni, inherited the suit land, the extent of 1/3rd share, and the remaining land was jointly inherited by defendant Nos. 2 to 5. However, after the death of Ghunni, Sadiqan entered into forcible possession of the suit land. The plaintiffs asked her, many a times, to deliver the possession of land, as owners to the extent of 1/3rd share, to them but she refused. Therefore, they filed a suit for declaring them to be owners of the total land, to the extent of 1/3rd share measuring 8 kanals 6 marlas, and also for its joint possession.
(3.) RESPONDENT Nos. 1 and 3 contested the suit. According to them, the suit was not maintainable in the form it was filed. If the appellants were to challenge the gift, a suit for cancellation of the gift should have been filed. Plea of misjoinder of parties was also taken up. On merits, it was pleaded that respondent No. 1, Sadiqan, had been serving Ghunni during her life time, and, being pleased with her services, the latter made an oral gift of her land, in the month of November, 1980, to her, voluntarily and in the presence of Mohd. Khalil and Sadiq Ali, witnesses. She accepted the oral gift and came into possession of land, as owner, at that very time. A memo of (oral) gift, which was scribed by a deed-writer, Vijay Kumar Gupta, and attested by two witnesses, Mohd. Khalil and Abdul Rashid, was also executed by Ghunni, in favour of Sadiqan, who, too, thumb marked it. However, the mutation got entered by Sadiqan on the basis of this gift, was rejected by A.C. IInd Grade, Malerkotla. She challenged the order of rejection in appeal, where Ghunni filed an affidavit before the appellate authority viz. Collector, Malerkotla, admitting not only the factum of gift made by her but also the execution of memo of (oral) gift dated 30.1.1981 and delivery of possession of land to her (Sadiqan) in pursuance thereof. She made a statement also in this regard, before the Collector. The latter, thereupon accepted the appeal vide order dated 26.5.1981 and sanctioned mutation No. 10664, in favour of Sadiqan, on the basis of the (oral) gift. The appellants, thereafter, filed an appeal before the Commissioner which was accepted vide order dated 3.6.1983. Sadiqan went up in revision against that order, which was decided in her favour vide order dated 4.3.1986, and the order of the Collector dated 26.5.1981, sanctioning mutation on the basis of oral gift, was upheld.;