' MIAN SAQIB NISAR, J.---The suit for the declaration and possession filed by the respondents against the petitioner, has been decreed by the learned Civil Judge on 23-12-2000; the appeal of the petitioner has also failed on 8-1-2004. Hence this revision.
2. Briefly stated the facts of the case are that on 20-9-1989, the respondents brought the aforesaid suit averring in the plaint that their grandfather namely Alim-ud-Din son of Rahmat Ali Khan, who before the partition of the sub-continent was the resident of Mouza Talwandi Malak Riyyasat "Patyala", where he owned certain land, on his migration to Pakistan, for the allotment of the evacuee land in lieu of that left in India, filed his claim Form No,7978. It is specifically mentioned in paragraph No,3 of the plaint, that against the said claim Form, certain land was allotted to him in Kamoke Tehsil and District Gujranwala, vide Khata No,450, Register RL-II measuring 65 Kanals and 12 Marlas, which was confirmed on 14-10-1953. It is further stated that Alim-ud-Din had filed other claim Form No,3152, which was verified and the land in Mouza Bhakharanwali Tehsil and District Gujranwala was allotted to him. Upon the death of Alim-ud-Din, which occurred on 5-4-1951, the Mutation No,43 of the land allotted to him in Mouza Bakharanwali was sanctioned in favour of his legal heirs, but for the land in Mouza Kamoke, the petitioner/defendant fraudulently in connivance with the Revenue Authorities by misrepresenting himself, to be the son of the plaintiffs' grandfather, got attested the mutation of inheritance No,7384 dated 17-12-1956. Thus on the basis of the above specific set of facts, they claimed to be the owners of the suit-land measuring 65 Kanals and 12 Marlas and sought its possession, as the consequential relief.
3. The above case of the respondents/plaintiffs was resisted by the petitioner/defendant and in the written statement, he averred that in fact, it is on the basis of his claim Form No,7978, regarding the property of his father Aleem-ud-Din, left in the same village, which was verified, that some land was earlier allotted in Mouza Beghyana District Chunian, whereafter, as he along with his family, shifted to District Gujranwala, thus finally the suit-land was allotted, however, as the allotment was in the name of his father, who by that time, had died, therefore, the mutation in question, was duly sanctioned in his favour as being the only legal heir of the deceased. It is further the case of the petitioner/defendant that since its allotment, he has been in possession of such land, out of which, some has already been sold.
' Out of the pleadings of the parties, number of issues were framed, but following are the relevant for the purpose of disposal of this petition:--
(2) Whether claim Form No,7978 of agricultural land was submitted by Alim-ud-Din Khan son of Rehmat Ali Khan predecessor's interest of plaintiffs and against the said Claim No,7978 agricultural land was attested and confirmed at Khata No,450 of RL-II of Kamoke? OPP
(3) Whether Alim-ud-Din Khan son of Rehmat Ali Khan mentioned in Mutation No,7384 was father of defendant? OPD
(5) Whether Mutation No,7384 sanctioned in favour of defendant, Aish Muhammad in respect of landed property situated in Kamoke excluding the plaintiffs from inheritance is result of connivance of Revenue Department, based upon fraud, and liable to be set aside" OPP
(10) Whether the suit is time-barred? OPD ' Parties were put to trial, and during the course of the proceedings, the plaintiffs/respondents summoned from the Central Record Room, the record pertaining to the ownership of the properties left by their predecessor in India and the relevant claim Form, which could not be produced, perhaps because of the bar imposed by the concerned authorities about its production. Therefore, the learned trial Court, was pleased to appoint a local commission to examine the record and report in this behalf, who, has appeared in the Court as P.W.1 and tendered his report as Exh.P-1, besides, the plaintiffs also tendered in evidence Exh.P-3, application form of Claim No,7978, which undoubtedly envisages of having been filed by Abdul Rashid, maternal uncle of the petitioner, as his guardian, representing him to be the son of Aleem-ud-- Din, Exh.P-3 is the claim Form Exh.P-4 is the affidavit in support of the form and Exh.P-5 is the Fard Haqiyat. The local commission in his report has opined that Alim-ud-Din son of Rehmat Ali Khan had left in India 38 Kanals and 5 Biswas of land. He was not related to the petitioner/defendant and it is on the basis of his claim that the suit-land was allotted. He also observed that claim of the defendant was still pending verification.
Thus the learned trial Court, primarily on account of the said report came to the conclusion that the suit-land was allotted against Form No,7978, which pertains to the claim of therespondents/plaintiffs' predecessor-in-interest namely Alim-ud-Din and not of Aleem-ud-Din, the predecessor in interest of present petitioner. Because the land left by the later in India was lesser and it does not correspond to the land allotted. The Court, therefore, by answering issues Nos.2, 3 and 5, collectively in favour of the respondents and against the petitioner and also by returning its finding on the issue oflimitation in their favour, decreed the suit on 23-12-2000; the appeal of the petitioner has also failed. Hence this revision.
4. Dr. A. Basit, learned counsel for the petitioner, has argued that it is the claim of, the petitioner's father Aleem-ud-Din, who in Gurmukhi script can be written and pronounced as Alim-ud-Din that the land in question was allotted against Form No,7978 filed by the petitioner through his maternal uncle namely Rashid Muhammad, however, the respondents out of whom, one was employed in the Central Record Room, by taking the advantage of his position and the similarity of the names 'of the two, Aleem-ud-Din and Alim-ud-Din and also their fathers' names Rehmat Khan and Rehmat Ali Khan, has manipulated the record and filed the present suit, which is baseless and was also beyond the prescribed period of limitation; he has also criticized the report of the local commission, who according to him, has not examined the record of the Central Record Room in its proper and true perspective and his opinion that the land in question, has been allotted for the property of Alim-ud-Din, predecessor in interest of the respondents is unfounded, because according to Dr. A. Basit, it is the claim Form filed by the petitioner's side bearing No,7978, which was processed and verified and undoubtedly that the allotment in question has been made on the basis thereof. He argued that in this behalf, the documents produced by the respondent as Exh.P-2 to Exh.P-5 are adequate proof of the facts.
5. Conversely, the learned counsel for the respondents has vehemently relied upon the report of the local commission Exh.P-1 and argued that the entire case of the respondents stands proved on account of this report which is accurately based upon the record of the "Central Record Room"; the local commission has duly examined and considered the requisite record, including the pedigree table of both the sides, their respective lands, which were left in India, where from it stands conclusively proved that the land in question was allotted against the claim of Alim-ud-Din, predecessor-in-interest of the respondents and not Aleem-ud-Din, the predecessor of the petitioner. Therefore, the petitioner fraudulently by misrepresenting the true facts has obtained the sanction of the Mutation No,7384 in his favour in collusion with the Revenue Authorities, resultantly, as the fraud vitiates the most solemn proceedings and no premium can be attained by a person on account of his own fraud, therefore, the impugned decisions by the two forums below are legal and valid.
6. I have heard the learned counsel for the parties. Before dilating upon the real point of controversy between the parties, I feel expedient to mention, that as proved and spelt from the record, the name of the petitioner's father is Aleem-ud-Din, and his grandfather's name is Rehmat Khan, whereas the respondents' grandfather's name is Alim-ud-Din, who is the son of Rehmat Ali Khan. No doubt, there is close proximity in the names and the parentage of both the predecessors.
And, I am not much impressed with the argument of Dr. A. Basit, that in Gurmukhi, Aleem-ud-Din can be written and pronounced as Alim-udDin, and therefore, it is the father of the petitioner, for whose lands, left in India, the suit-land has been allotted, because from the record examined and referred by the local commission in his report, it stands established that Aleem-ud-Din and Alim- ud-Din were two distinct persons; and despite to some extent the similarity of their names and the parentage, they can very well be identified by reference to the name of their brothers, as has been highlighted in the report Exh.P-1 and also elucidated in the impugned judgments. However, in my considered view,. His other submission about issue No,2, that the predecessor of the respondent had never filed the claim Form No,7978 and therefore, the question of the allotment of the suit-land in his favour does not arise, is the key, the pivotal and the most basic issue, which requires resolution in the case. Because, if the suit-land was allotted in favour of Alim-udDin, predecessor- in-interest of the respondents on his claim Form bearing No,7978, as this is the unambiguous and unqualified assertion of the respondents in their plaint, obviously, the answer in the positive shall have serious reflection upon the validity of the mutation in question. But if it is proved that the said claim Form was never filed by the respondents' side, rather by the petitioner and it is this form, which was processed and the allotment of the suit-land by the competent authority was rightly or wrongly based thereupon, it shall not be legally justify to declare the mutation as invalid.
7. In the plaint, as mentioned earlier, the respondents have taken a specific stance that it is their predecessor, who filed the claim Form No,7978 and the suit-land was allotted to him on that basis, meaning thereby that up to the stage of allotment, they do not impute any fraud to the petitioner.
Anyhow, this fact was denied by the petitioner in his written statement, and accordingly issue No,2 was framed; and the onus was rightly placed upon the plaintiffs/respondents. But they have failed to discharge the burden and have conspicuously omitted to bring on record any document to show, if the said claim Form No,7978 was filed by their predecessor. On the contrary, they themselves have tendered in evidence the certified copy of the claim Form No,7978 Exh.P-3, which was admittedly filed by the petitioner's guardian and is accompanied by an affidavit Exh.P-4 of his maternal uncle. In the claim Form, the land abandoned by the petitioner's predecessor is stated to be 5 Acres and 14 Biswa s. It is on the basis of the said form, that the claim in question was verified by the concerned authorities, as is envisaged by the Fard Haqiyat Exh.P-5 and the allotment was finally made to the petitioner' side in the village Behgyana Chunian. But as no land could there bephysically procured by the petitioner and also on account of his migration to District Gujranwala, along with his family, that the land in question was got allotted by him in the year 1956. But as Aleem-ud-Din his father, for whose ownership and in whose name the claim was verified and the allotment was made had expired resultantly, the questioned inheritance Mutation No,7384 was attested in favour of the petitioner. The petitioner accordingly obtained the possession of the said land admittedly till to date retains the same except a part thereof, which he had sold even before the institution of the suit.
8. The plaintiffs even according to their own case in para. No,6 of the plaint, got the knowledge of the disputed mutation in the year 1984 and moved an application dated 3-9-1984 for the review before the Revenue Authorities, re-agitating in the succeeding para. Of the plaint, that only the mutation was the result of fraud and collusion between the petitioner and Revenue Department.
They never challenged the verification about the entitlement or the allotment in favour of the petitioner's side on any ground whatsoever. To my mind, no challenge of the mutation in the circumstances was warranted and permissible, because the allotment has been made on the basis of the verification of the claim against Form No,7978, which is not proved to have been filed by the respondents' predecessor and therefore, until and unless, the said verification was got annulled and a fresh allotment was made to the respondents, the mutation in dispute, which was only the consequence and manifestation of the said allotment, could not be said or held to have been got sanctioned in the name of the petitioner through .Any fraud or misrepresentation.
9. It is settled law that no one can be allowed to prove his case beyond the scope of his pleadings and that a party to the litigation is precluded in law to adduce the evidence, which is inconsistent and contrary to its case, specifically set out in the plaint or the written statement. Reference in this behalf, can be made upon the cases reported as Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703 and Mst. Jannat Bibi v. Sher Muhammad and other's 1988 SCM R 1696, As has been mentioned earlier, the respondents in paragraphs Nos.3 and 4, of their plaint, have clearly, unambiguously and in unequivocal terms stated that the claim From No,7978 was filed by their predecessor in interest; he was allotted the land, and it is during the process of the attestation of the mutation of inheritance alone, the petitioner while taking the advantage of the similarity of the name, fraudulently obtained the impugned mutation in his name. However in the evidence, the respondents not only have miserably failed in this behalf, rather has led contradictory evidence, which has materially impaired their case, because from the Exh.P-3 and Exh.P-4, the documents produced by the respondents themselves, it is undoubtedlyclear that the requisite form was not filed by them, but the petitioner through his maternal uncle and it is on the basis of such form, that verification and the allotment was ultimately made. Therefore, the findings on issue No,2, could not be given in favour of the respondent but unfortunately the two Courts below have failed to consider the contents of the plaint; the true nature of controversy between the parties embedded in the said issue, and only by taking into consideration the report of the local commission and by ignoring Exh.P-2 to Exh.P-5 have decided the issue collectively along with two other issues. The Courts below also remained oblivious that in the report of the local commission Exh.P-1, which is the basis of their impugned decisions, the commission has never opined that the claim Form No,7978 was filed by the respondents' predecessor, for the reason that there is no other claim Form on the record except Exh.P-3. Therefore, the judgments and decrees of the two Courts below even if based upon the concurrent finding, but when established to be against the record, having led to serious miscarriage of justice, cannot be sustained.
10. In view of the above, the findings on issues Nos.3 and 5, of the two Courts below are also set aside for the reason that these two issues are in fact dependent upon-the fate of issue No,2. And as has been held, it is the claim Form of the petitioner's side, which was verified and the land was allotted against that, obviously the Mutation No,7384, which was sanctioned on the basis of that verified claim and it cannot be declared to be the result of any fraud or misrepresentation, especially when no fraud and collusion in seeking the attestation of the mutation, has been proved by the respondents.
11. As regards the issue No,10 about the limitation is concerned according to the bare reading of section 18 of the Limitation Act, it is clear that in order to bring a case within the purview of the said section, a plaintiff is required to establish that he consequent to the fraud practiced and perpetuated upon him, was kept from the knowledge of having a right to institute the suit. But in the present case, no such fact has been pleaded or proved by the respondents in accordance with law. They as mentioned earlier, have failed to establish of having filed any claim for the verification of their entitlement; it is not their case in the plaint if the petitioner has practiced any fraud in the process of obtaining the allotment. Rather they confined themselves to attack the allegedly fraudulent sanction of the Mutation No,7384 in favour of the petitioner, but did not succeed to prove any fraud, etc. Therefore, the suit on the fact of it, even by applying the maxim period under residuary Article 120 was out of limitation and the time was not extendable under section 18.
Therefore, the findings of the two Courts below on this issue also cannot sustain and are hereby set aside.
In the light of what has been stated above, the judgments and D decrees of the two Courts below are set aside, with the result that the suit of the plaintiffs stands dismissed.