' ABDUL SATTAR GORAYA, J.---By means of this revision petition, the judgment dated 9-6-2005 passed by the Learned Additional District Judge, Hafizabad and that of dated 23-11-2004 of the learned trial Judge have been brought under challenge.
2. The facts as set out in the plaint are that Muhammad Asghar plaintiff being refugee from Jamu & Kashmir was allotted land temporarily on 18-2-1956, measuring 66 kanals and 8 Marlas situated in the Revenue estate of Mouza Muradian Tehsil Hafizabad. In the year 1972 the plaintiff joined Pak Army and taking undue benefit of his absence, the proprietary rights of the suit-land were conferred but in collusion of the officers of the Revenue Department, Mutation No,184 dated 8-2- 1984 was sanctioned in favour of Faqeer Alam defendant No, 1 . The said mutation was alleged to be ineffective and in-operative against the right of the suitor and prayed for its cancellation.
Faqeer Alam out of the said land fraudulently sold 10 Kanal and 2 Marlas through registered sale- deed dated 13-2-1984 and 35 Kanals 7 Marla was sold A to respondent No,3 on 13-2-1984. The remaining part, it is alleged was transferred through the gift transaction in favour of his son who was arrayed as defendants No,2-5 in the suit. Later on the land was alienated to defendants Nos.6 and 7 through Mutation No,538 dated 18-12-1998. Plaintiff prayed for cancellation of the said mutations treating the same to be fraudulent and ineffective qua his rights. The petitioner in the written statement denied and controverted the allegations stating therein that the suitor has no cause of action and locus standi to bring the suit and it cannot proceed in its present shape.
Principle of estoppel was also pleaded and ultimately prayed for dismissal of the suit.
3. Divergent pleadings of the parties gave rise to the following issues: --
(1) Whether the plaintiff is original allottee of the suit land mentioned in Para No,1 of the plaint as refugee or Jammu & Kashmir? OPP.
(2) Whether the suit land mentioned in Para No,2 of the plaint was allotted in lieu of land in Para. No,1 during consolidation proceedings, hence, the plaintiff is owner of the same? OPP
(3) Whether Mutation No,184 dated 8-2-1984 of the suit-land in favour of defendant No,1 is illegal, based on fraud/forgery and as such void, ineffective against the rights of the plaintiff? OPP
(4) Whether the subsequent mutations Nos. 454 & 455 dated 31-10-1995 in favour of defendant Nos.2 to 5 are alsoillegal, void, based on fraud, without lawful authority and as such in operative against the rights of the plaintiff? OPP
(5) Whether Mutations No, 438 dated 18-12-1998 and 548 dated 31-12-1998 in favour of defendants Nos.6 and 7 are also illegal, void and ineffective against the rights of the plaintiff? OPP
(6) If the above issues No,1 to 5 are proved whether the plaintiff is entitled to the decree as prayed for? OPP
(7) Whether the suit is time-barred? OPD.
(8) Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD
(9) Whether the suit is not maintainable in its present form? OPD
(10) Whether the plaintiff is estopped by his words and conducts to file the suit? OPD
(11) Whether the value of the suit for the purpose of court-fees and jurisdiction has not been properly fixed if so what is the correct valuation? OPD.
(12) Whether the suit is collusive between the plaintiff and defendants Nos. 1 to 5? OPD
(13) Whether the defendant No,7 is bona fide purchaser for consideration without notice?
(14) Whether the defendant No,7 has made improvements by levelling and installation of tubewell, if so whether he is entitled to recover Rs,70,000 as charges for improvement? OPD
(15) Whether the defendant No,6 actually purchased the suit property of Khasra Nos. 381 and 382 for Rs,217000? OPD
16. Relief.
4. Issues Nos. 1 and 3, the onus of which was proposed on the plaintiff, were decided together treating the same to be inter-linked and inter-related. The said issues were answered in favour of the plaintiff and against the petitioner. It was concluded that the temporary allotment in the year 1956 (Exh.P2) as well as the permanent allotment vide mutation No,184 (Exh.P5) in favour of Faqeer Alam was illegal and void from its inception. Issues Nos. 2, 4, 5 and 6 were answered against the defendant and in favour of the respondent-suitor. Issue No,7 was answered in favour of the respondent-suitor and it was held that the suit is within the time. Issue No,8 was against the respondent-suitor and issue No,9 was answered in the. Negative. Issue .No,10 was answered in favour of the plaintiff-suitor and issue No,11 was answered in negative. Onus with regard to issue No,12 was upon the defendant and it was answered in negative. Issue No,13 was answered in favour of the defendant No,7. On issue No,14, it was held that defendant No,7 can claim price of the land by filing a suit against the vendor and the expenses incurred thereon on the development of the land.
Issue No,15 was answered in the negative. The onus was proposed against the defendant. In the nutshell the suit was decreed. Appeal filed against the judgment and decree dated B 23-11-2004, failed before the learned Additional District Judge, Hafizabad on 9-6-2005.
5. Learned counsel for the petitioners argued that the judgment and decree of both the Courts below are based on misreading and non-reading of evidence which resulted in grave miscarriage of justice. It was further argued that the plaintiff in fact was a nephew of Faqeer Alam and his name at the time of maintenance scheme, was shown as dependant, who at the relevant time was minor.
6. Learned counsel for respondent No,3 argued that after having held that he was bona fide vendee, his rights are protected under section 43 of the Transfer of Property Act, 1882 and the error cropped up which may be corrected in exercise of power of this Court under Order XLI Rule 33 C.P.C.
It was also argued that the suit by the respondent No,1 was barred by time. Muhammad Asghar respondent is present in person and he argued the case by defending the judgment of the Courts below tooth and nail almost for the same reasons, which have been given by the Courts below.
7. I have lent ears to the arguments of the learned counsel for the parties in detail.
8. The main grievance of the petitioners is that the suit is barred by limitation and under Articles 142 and 144 of the Limitation Act the suit for possession should have been filed within 12 years but D the suit brought by the respondent was belated one and this is on its face value was barred by time.
Muhammad Asghar plaintiff in the suit pleaded fraud in specific terms. He stated that he has joined the Army and in his absence the fraud has been committed. On the basis of the proposal made on 24-2-1956, the temporary allotment order was made in favour of respondent No,1 Exh.P/3 is a document in respect of the allotment made to the refugees of Jamu and Kashmir and in the said document, the name of the petitioner has been shown at Sr. No,3. It discernibly provide that independent proposal and allotment has been made in his favour and name of the respondent Muhammad Asghar son of Qazi Alif Din is appearing in the relevant column. Learned counsel for the petitioner tried to establish that the case was barred by limitation. In the evidence brought on the record the petitioner could not establish that the defendant No,1 Muhammad Asghar had a knowledge of the whole affairs. Land measuring 35 Kanals and 7 Marlas was got transferred through a decree of the Court. P.W.1 when appeared in the witness box, categorically stated that he came to know of the removal of his name from the proposal of the allotment in the year 1998 when he approached the GHQ and thereafter he filed a suit without wasting further time. The said witness was put to lengthy cross- F examination but he did not concede any limb of the petitioner's version. Limitation in the case where the fraud is alleged, would surely run from the date of knowledge and not from the date when the fraud was committed and the entries were got changed. In this view of the matter suit was within time. As regarding the remaining part that the learned Courts below misread and misinterpreted the evidence available on record, nothing has been brought out on the record to point out that the Courts below misread or misinterpreted the evidence. The judgments of the Courts below are rich in details. The whole case has been examined keeping in view the parameters provided by section 115 C.P.C. But nothing spelt out to the benefit of the petitioner. Mr. Masud Akhtar Khan, Advocate, laid much emphasis on the point that respondent No,3 purchased the land from the recorded owner and he is bona fide purchaser for value without notice to any previous transaction. Muhammad Asghar respondent who argued the case himself came out with the plea that the matter was under encumbrances of the prohibitory order in the Civil Court and during the pendency of the lis suit respondent No, 3 purchased a portion of the land. Finding of the Courts below recorded on this score are rich in detail. Respondent No,3 should go behind the original owner and by filing a suit. He cannot only claim the return of the amount but also the other expenses and the compensation because he has been consciously hit hot by the original owner. He cannot claim anything from the respondent in whose favour the concurrent finding of fact has been recorded.
9. Both the Courts below have scanned the matter with microscopic vision and came to the conclusion that respondent No,1, Muhammad Asghar has been subjected to fraud. Each and every aspect has been dealt with due care. No misreading and non-reading has been pointed out.
10. Consequently the revision petition has no merits and the same is dismissed.