Sardar Muhammad Raza Khan, J.--Mst. Fatima Bibi and others, plaintiffs in the original suit, have been granted leave to appeal from the judgment dated 29.5.2001 of a learned Judge in Chambers of Lahore High Court whereby, while exercising revisional jurisdiction the concurrent decrees granted to the appellants by the trial Court as well as by the First Appellate Court were set aside and the appellants/plaintiffs were non-suited.
2. The following pedigreetable would help comprehending the background of litigation:-- {{URDU TEXT}}
3. Muhammad Din, being the owner of the property in dispute died on 18.6.1976. His Inheritance Mutation No, 194 was attested on 26.7.1976, whereby, all the legal heirs mentioned in the pedigreetable were given their sharai shares. Despite the attestation of inheritance mutation, Said Bibi (second wife) and her children started claiming title to the entire land on the ground that the minors had purchased the property from their, father Muhammad Din through a consent decree dated 25.7.1973. When Said Bibi the (first wife) and her two daughters came to know about the existence of the decree aforesaid, they filed the instant suit which was decreed by trial Court as well as by the First Appellate Court. It was set aside by the learned High Court in its revisional jurisdiction and hence this appeal.
4. The pleadings at different stages, the record and the evidence is indicative of quite an intriguing background. Prior to the compromise decree dated 26.7.1973 of sale, Muhammad Din had gifted away the property to the children of Said Bibi (second wife), also, through a consent decree dated 28.2.1973. The gift transaction could not be materialized and hence the transfer was made in the shape of sale through subsequent consent decree dated 25.7.1973. The appellants/plaintiffs challenged these decrees dated 25.7.1.973 through the instant civil suit.
5. In the pleadings of consent decree of sale it was alleged that the donor resiled from gift which could not be materialized due, also, to the non-transfer of possession. One should keep in mind that the donor is the real father while the donees are his real children. In the circumstances, no transfer of physical possession was required except for establishing a bona fide intention to gift away the property. Thus a baseless and unreasonable excuse was raised to justify another transaction of sale. By saying so, we do not mean and conclude that the earlier gift was a genuine transaction. It comes merely by way of discussion because the gift transaction is already negated by the parties thereto in their subsequent pleadings of suit based on sale. What we intend bringing home is that both the transactions of gift and subsequent sale are sham transactions, destructive of each other. If the father really intended to transfer the property, it could have been done through gift, which presently stands rescinded by the parties thereto.
6. Coming to the question of sale, one should keep in mind at the very outset that the decree dated 25.7.1973 is a consent decree. It carries no value other than being an agreement between the parties irrespective of the judicial seal that it bears and the judicial impression that it carries. Thus the burden to prove the genuine existence of sale rests upon the party that supports the sale.
7. We have gone through the evidence on record together with the pleadings of every stage and have observed that the independent source of income of the minors has not been proved. The borrowing of Rs, 80,000/- from minors and adjustment thereof as sale consideration has not been physically proved. There is no evidence to the effect that the father transferred the possession, of course, through attornment. In these circumstances, the learned trial Court as well as the learned First Appellate Court were perfectly justified in holding that the factum of sale has not been proved, being most important question of fact. The learned Judge of the High Court had no justification to set aside such question of fact while exercising revisional jurisdiction.
8. The learned High Court non-suited the plaintiffs/appellants on point of limitation. In that behalf the statement of Said Bibi plaintiff was relied upon where she happened to express that the factum of gift was in her knowledge. This was the only point seriously stressed before us by the learned counsel for the respondents as well. We are constrained to observe that the learned High Court has resorted to a far fetched aspect in order to attract the application of limitation to the determent of the appellants who, according to Shariah, natural justice and fair play were the legal heirs of Muhammad Din.
9. The admitted knowledge about gift as admitted by Said Bibi plaintiff is altogether immaterial on two counts. Firstly, the gift stood negated by the parties thereto and secondly, it was never a subject matter of dispute in the instant case. Moreover, any admission about the knowledge of gift is not at all damaging because it was against material facts in existence. When the parties to the gift resiled therefrom, the knowledge thereabout by the plaintiffs cannot be detrimental at all.
10. Coming to the limitation in relation to consent decree of sale dated 25.7.1973, the learned High Court, with reference to para-9 of the plaint computed the period of limitation from 25.7.1973. Again it is not well founded. Article 95 provides a time of three years for filing a suit to set aside a decree obtained by fraud. The limitation starts from the point when the fraud becomes known to the party wronged. In para-9 of the plaint the plaintiffs referred to the accrual of cause of action from the date of the impugned decree as well as the death of Muhammad Din. Though the factum of knowledge is not mentioned in such paragraph but the same is clearly and specifically mentioned in para-4 of the plaint.
The effect of pleadings is to be taken from the general and overall reading thereof and it is not at all fatal if some assertion is omitted to be taken in the relevant paragraph. The ear marking of specific paragraphs in the law of pleadings and convincing is only for the purpose that some material aspects are not omitted to be mentioned.
11. In Para-4 of the plaint, the plaintiffs have specifically alleged that after the death of Muhammad Din they considered themselves to be a lawful owner of the property to the extent of their sharai share but they became alert only when the defendants claimed title to the entire property. The impugned decree being a consent decree could never have come to the knowledge of the plaintiffs who had the Inheritance Mutation No, 194 in their favour attested on 26.6.1976. The same was challenged by the defendants on Revenue side and the plaintiffs obtained knowledge when they were to appear before the Assistant Commissioner on 16.10.1976. The instant civil suit was filed there and then on 6.10.1976. In this background and in the wake of the assertions in the pleadings, the instant suit was well within time. The learned High Court was not justified in setting aside the concurrent findings of two Courts below on pure question of fact.
12.Consequently, the appeal is accepted, the impugned judgment dated 29.5.2001 is set aside.
The decree dated 16.3.1980 maintained by the First Appellate Court vide judgment and decree dated 16.2.1984 is hereby restored.