JAWWAD S. KHAWAJA, J.- The petitioner/defendant, namely, Mst. Sakina Bibi, impugns the appellate decree dated 9.7.1996 whereby the decree of the learned Trial Court dated 15.5.1993 was set aside and a declaratory suit filed by the respondent/plaintiff, namely, Khurshid Ali, was decreed.
2. The facts of this case are straightforward. The petitioner/defendant was the owner of the suit property measuring 8-Kanals, 19-marlas. Respondent No. 2, namely, Muhammad Yousuf, obtained mutation No. 363, dated 25.3.1990 whereby the petitioner, Mst. Sakina Bibi, purportedly sold the suit land to him. The petitioner impugned the aforesaid mutation before the revenue forums. The Additional Commissioner accepted the petitioner's revision petition vide order dated 21.6.1992 and, as a consequence, the aforesaid Mutation No. 363 was set aside.
3. During the pendency of the aforesaid proceedings, Khurshid Ali, respondent/plaintiff, filed a preemption suit against Muhammad Yousuf, respondent No. 2, based on the alleged sale recorded in Mutation No. 363. The said pre-emption suit was decreed in favour of the respondent/plaintiff on 22.10.1991. At this juncture, it is important to note that the pre-emption suit was not adjudicated on the basis of any contest but was decided on the basis of an oath offered by Muhammad Yousaf to the effect that if the plaintiff Khurshid Ali swears on the Holy Quran that he had made talb-l- muwathibat within ten days of gaining knowledge of the sale, the suit be decreed. Khurshid Ali swore the oath and, as a result, his pre-emption suit was decreed.
4. It is interesting to note that the suit was decreed ex parte against the petitioner. Learned counsel for the petitioner has shown me the reports of the process serving agency. From the same it is evident that the petitioner had never been served. Instead respondent No. 2, Muhammad Yousuf, accepted service on her behalf in one case as her nephew and in another instance as her special attorney. Learned counsel for the petitioner submitted that Muhammad Yousuf was not related to the petitioner and had never been appointed as her special attorney. It is submitted that because the petitioner was deaf and dumb, the respondent /plaintiff and the respondent Muhammad Yousuf a conspiracy to deprive the petitioner of her rights in the suit property.
5. Learned counsel for the respondents was not in a position to advert to any evidence to show that Muhammad Yousuf was related to the petitioner. On the contrary in his plaint the respondent stated that the petitioner was associated and guided by her brother when the alleged sale was effected. When the respondent/plaintiff appeared as his sole witness he neither mentioned the petitioner's brother nor was he able to state the brother's name. Furthermore, the respondent/plaintiff did not examine any of the alleged witnesses of the mutation.
6. The learned Trial Court, after considering the ex parte evidence, dismissed the suit on the basis of the findings recorded by the Additional Commissioner (Revenue) in his order dated 21.6.1992.
7. The learned Appellate Court, however, has decreed the respondents' suit as noted above. The reason which has prevailed with the learned Appellate Court is that the order of the Additional Commissioner (Revenue) was void and inoperative upon the rights of the respondent/plaintiff because he was not a party before the revenue forums.
8. It is established from the record that the petitioner had not in fact been served in the suit and that she had been proceeded against ex parte even though there was no report of service. This alone is sufficient for the purpose of setting aside the appellate decree. However, in such event the petitioner would once again be forced to go through the process of litigation after having spent fourteen years before the revenue forums and the Courts below.
9. I have noted above the conduct of the respondents, which shows that they were in collusion. I have also considered the judgment of the learned Trial Court and the ex parte evidence recorded therein, adverted to above.
On the evidence available on record Mutation No. 363 in respect of the alleged sale of the suit land to the respondent Muhammad Yousuf has not been proved.
10. In the foregoing circumstances, it would work undue hardship on the petitioner if she is compelled to go through another round of litigation. The appellate decree which proceeds on the assumption that the petitioner had been served, is set aside. The decree of the learned Trial Court dated 15.5. 1993 is affirmed.
Civil revision .