'RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---Through this petition, the petitioners namely Muhammad Yousaf and 5 others have assailed the judgment and decree dated 6-3-2007 passed by learned Additional District Judge, Vehari whereby the appeal filed by the petitioners was dismissed and judgment and decree dated 15-9-2001 passed by the learned Civil Judge, Vehari whereby the suit for declaration of the petitioners was dismissed.
2. Succinctly the facts giving rise to this revision petition are that the petitioners and respondents Nos.15 and 16 filed a declaratory suit titled as Muhammad Yousaf etc., v. Muhammad Maalik etc., in the Court of Senior Civil Judge, Vehari on 25-1-1992 in which plaintiffs/petitioners challenged the order dated 25-4-1978 passed by District Collector, order dated 5-11-1978 passed by the Commissioner, Multan Division, Multan, Mutation No,89 dated 13-11-1977, Mutation No,99 dated 30- 4-1978 about land detailed given below, compromise Exh.C1, statements of Muhammad Saeed, Muhammad Sadiq, Muhammad Maalik dated 26-7-1979 and judgment and decree dated 26-7- 1979 passed by Civil Judge Vehari and proceeding by Rapat No, 1992, dated 18-10-1984 are .Against the law, facts, justice, unheard and ex parte, having no effect on the rights of petitioners and prayed that petitioners as well as respondents No,15 and 16 may be declared owners of 1/3 share of total land. Detail of disputed land is as under:-- 'Khewat No,4 min. Khatooni Nos.313 to 316, Khasra Nos.59/11/1, 11/2, 12 to 20.27.30. Land measured 77 Kanals 10 Marlas situated in Chak No,23/WB, Tehsil and District Vehari. Whereas he challenged the order dated 13-12-1976 passed by the District Collector Vehari, on 31-11-1978 order passed by Member Board of (Revenue) and order dated 25-4-1978 District Collector, Vehari and order dated 5-11-1978 passed by Commissioner Multan and mutation No, 89 dated 13-11-1977 and mutation No,99 dated 30-4-1978 wherein revenue authorities have granted permission to Mangta to transfer his right in the land in question. The petitioner also challenged the gift deed as well as mutation and decree dated 26-7-1979 which were obtained through fraud and misappropriation. Out of the divergent pleadings of the parties learned trial Court framed 8 issues including the relief that both the parties led their oral as well as documentary evidence in support of their respective claims. The petitioner filed an appeal before the revisional Court which was also dismissed on 6-3-2007. Hence this petition.
3. In order to prove the case the petitioner/plaintiff himself appeared as P. W.1 and produced Tardeedi Shahadat as P.W.2 in the rebuttal the petitioner produced the documentary evidence in shape of copy of Jamanandi of year 197576 as Exh.P.1, Exh.P.2 Jamabandi 197980, Exh.P.3, Jamabandi 1983-84, Exh.P.4 Jamabandi 1987-88, Exp.5 Khasra Girdawri from the year 1972 to 1994.
Exh.P.5, Exh.P.6 copy of order dated 26-7-1979 with decree, copy of order dated 26-7-1979 with decree, Exh.P.7, copy of mutation No, 89, Exh. P.8, mutation No,99, Exh.P.9 copy of Roznamcha Waqiat dated 18-10-1984, Exh.P.10 copy of order passed by Mr. Ghulam Murtaza Paracha Commissioner Multan division Multan dated 23-10-1977, Exh.P.l1 copy of the order passed by Mr. A.K. Khalid Member Board of (Revenue) (Colonies) Punjab order dated 31-10-1978 and counsel also has given statement about finalization of the petitioner evidence on 19-2-1999 and 27-1-1998.
4. The evidence given from defendant side is given as evidence D.W.1 (Chaudhry Akbar Ali, Advocate), D.W.2 (Sofi Abdul Latif clerk of Advocate), D.W.3 (Shah Muhammad) D.W.4, (Rafaqat Ali), D.W.5 (Muhammad Aslam), D.W.6 (Muhammad Ishaaq), D.W.7 (Muhammad Maalik/ defendant No,1), D.W.8 (Nazeeran Bibi) D.W.9 (Noor Muhammad Patwari) D.W.10 (Ghulam Nabi son of Muhammad Saeed). In documentary evidence they produced Exh.D.1 Tamleek Nama dated 27-4- 1978, Exh.D.2 copy of order dated 25-4-1978 passed by District Collector Vehari, Exh.D.3 order of Commissioner dated 5-11-197g, Exh. D.4 order, dated. 27-12-1978 of Civil Judge, Vehari, Exh.D.5 statement of Mangta, Exh.D.6 order dated 18-11-1989 passed by Tehsildar Vehari.
5. Learned counsel for the petitioner contended that both the courts below have not considered the material available on the record and wrongly dismissed the suit of the plaintiff; that trial Court wrongly held that petitioners filed a suit and filed an application under section 12(2), C.P.C. That trial Court ignored the facts that judgment and decree which was impugned in the suit was passed on 26-7-79 whereas section 12(2), C.P.C. Was introduced in the year 1980 are as no retrospective effect at the time of decree, remedy of section 12(2), C.P.C. Was not available; that District Collector had given permission about the transfer of disputed land under section 19 of Colonization Act, 1912 dated 13-12-1976 that order was challenged upto Board of Revenue, and Member Board of (Revenue) set aside that order on 31-1-1978 on the basis that District Collector has no jurisdiction to give the permission for transfer of State land, and that order of Member Board of (Revenue) was not assailed further. So, its effect still exists but District Collector again gave permission of transfer of the same land on 25-4-1978 so, order of District Collector dated 25-4-78 is in continuous wrong, so all the proceedings based upon that wrong and illegal orders are also illegal entirely. That no permission for the grant of proprietary right and there is no provision of transfer search right under section 19 of Colonization and Government Land Act 1912; that admittedly petitioners have possession of 1/3 of the disputed land. They were never dispossessed hence time will not run until transfer has taken possession. The courts below have wrongly drawn conclusion that question of limitation. No receipt pending right of the disputed land under section 27 of the criminal tribe scheme(sic) he will not be transferred land in question; that Tamleek has no effect on the right of the petitioner.
6. Learned counsel for the respondent supported the judgment passed by the courts below; that contention of the suit was not maintainable and both the courts below have rightly held that suit is not maintainable in view of the judgment Noor Muhammad v. Additional District Judge, Chakwal and 7 others (PLD 1994 Lah. 170), that both the courts below have properly appreciated facts and considered all the evidence produced by the parties. The concurrent findings cannot be interfered while exercising power of under section 115, C.P.C. Reliance is placed on Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368).
7. I have heard the learned counsel for the parties at considerable length and have also gone through the impugned judgments and decrees of the Courts below.
8. The version involved in the present case is whether the suit was maintainable in presence of section 12(2) C.P.C.? Both the Courts below have dismissed the suit on the ground that the same is not maintainable. The petitioner should have challenged the decree dated 26-7-79 which is Exh.P.6 through application under section 12(2), C.P.C. It has been held in case of Noorul Amin and others v.
Muhammad Hashim and 27 others (1992 SCMR 1744) which is reproduced as under: "Mere fact that the plaint in the suit was described as a plaint was registered as plaint could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C. If otherwise such jurisdiction was available to the Court under the law; application under section 12(2), C.P.C. Could be filed for setting aside the decree on the grounds mentioned in the said plaint and no prejudice could be caused to respondents by treating the plaint as an application under section 12(2), C.P.C.
9. In the present case decree which was challenged through suit was passed on 26-7-79 and the petitioner filed a suit on 25-1-1992 and application under section 12(2), C.PC. Was introduced in the A year 1980. The finding of learned trial Court regarding the non-maintainability of the suit is not in accordance with law. The trial Court could have treated the suit as application under section 12(2), C.P.C. There was no bar on the trial Court. I am fortified by the dictum in cases Noorul Amin and others v. Muhammad Hashim and 27 others (1992 SCMR 1744), Safia Bibi v. Aisha Bibi (1982 SCMR 494), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139), Abdul Aziz v.
Abdul Rahim (PLD 1984 SC 164), Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd., and others (1979 SCMR 32) and Zakarullah and 16 others v. Muhammad Ilyas and others (2002 YLR 2885).
10. Both the courts below held in their impugned judgments that the suit of the petitioners is barred by time. The said finding of both the courts below is not legal as in the suit in question matter is relating to inheritance of deceased Mangta and on the basis of impugned gift deed which is result of fraud and misrepresentation the other legal heirs of deceased Mangta were deprived from the inheritance of Mangta deceased. Reliance is placed on the case Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) in which it was held that "Article 144 adverse possession. Co-sharer ouster adverse entry and non-participation in the profits of the property would not amount to an ouster of co-sharer. Wrong mutation confers no right in property as Revenue record is maintained only for purposes of ensuring realization of land revenue--- Co-sharer/co-owners are not obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned suit filed, due to denial of rights of the co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation."
'Reliance is placed on the case of Saleem Akhtar v. Nisar Ahmed (PLD 2000 Lah. 385) it has been held that "Suit for declaration Limitation Expression "right to sue".
Applicability---Limitation for filing a suit for declaration under Article 120, Limitation Act, 1908 is six years from the date of right to sue---Right to sue accrues to plaintiff when his right has been denied by the defendant---Such right of plaintiff is a continuous right and there can be no right to sue until there is an accrual of right asserted in the suit and its-infringement or its clear unequivocal threat to infringe that right by defendant against whom the suit is instituted."
'The findings of trial Court that petitioners have failed to produce any evidence regarding the fraud in respect of the execution of gift deed is not valid, respondent No,1 was the beneficiary of the alleged gift deed therefore he was duty bound to prove genuine execution and correctness of the gift deed. Reliance is placed on the case of Muhammad Aslam v. Muhammad Tufail and 2 others (1995 CLC 1061) in which it was held that:- "Section 17 of Qanun-e-Shahadat (10 of 1984), Article 118--Fraud---Mode of proof when any party to a lis had alleged fraud with regard to a document then initial burden to prove execution of said document would be on the party which was relying on it. Once such onus was discharged, burden to prove factum of fraud would shift on that party which had alleged fraud."
11. Under the Muhammadan Law there are three necessary ingredients of completion of a valid gift but the respondent No,1 has failed to produce any evidence in respect of offer, acceptance and delivery of possession regarding the impugned , gift deed. The respondent No,1/plaintiff admitted in his statement that the possession of the petitioners over the suit land is maintained without any interruption and at the time of the impugned gift deed the possession of the land was not transferred to him. The document gift deed Exh.D.1 also does not fulfil the legal requirements for completion of valid gift i.e. Offer, acceptance and delivery of possession. As the respondent No,1 has failed to prove his possession at the time of gift over the land in question, thus the impugned gift deed is liable to be cancelled. Reliance is placed on (2003 SCMR 41).
'In order to prove the genuineness of decree dated 26-7-79 the respondent No,1 who is beneficiary of that decree did not produce evidence including the counsel who filed the earlier suit on behalf of the plaintiffs of that suit. Thus it has been proved that the decree dated 26-7-79 is based on fraud and misrepresentation.
'One of the marginal witnesses of the Exh.D.1/gift deed is the clerk of the advocate. No independent or related witnesses were produced by the respondent No,1 in order to prove the impugned gift.
12. The Province of Punjab has also filed a written statement in the said case and one Nazeeran Bibi one of the legal heirs of Mangta has appeared as D.W.8, D.W.9 Patwari Halqa and D.W.10 have also appeared in the above said case who all in their statements admitted the possession of the petitioners over the land in dispute and copies of Khasra Gardawari also show the possession of the petitioners. Thus the respondent No,1 has failed to prove that at the time of execution of impugned gift possession was delivered to him.
13. The Courts below have committed illegality, infirmity, in their impugned judgments dated 15-9- 2001 and 6-3-2007 same are set aside.
14. Resultantly, this petition is allowed and the case is remanded to the learned trial Court for its decision afresh in accordance with the law.