T MUHAMMAD AMEER BHATTI, J. --- Through this C.R. The judgment of both the Courts below dated 25.03.1996 and 09.05.2000 have been challenged by the petitioner/defendant.
2. The brief facts of the case are that the respondent/plaintiff filed a suit for declaration on 19.03.1990 through which he has challenged the mutations No. 70 & 71, dated 06.03.1989 and 98, dated 22.05.1992 on the ground of fraud and misrepresentation, being owner of the suit land Written statement was filed by the respondent on 24.02.1991 whereby apart from the preliminary objections, the factual position was also controverted. From the pleadings of the parties, six issues including relief were framed and parties were allowed to lead their evidence accordingly.
3. Plaintiff/respondent appeared himself as P.W.1 and produced as many as seven documents Ex.P.1 to Ex.P.3, the impugned mutations Ex.P.4 and mutation No 62 which was entered but not sanctioned, Ex.P.5 the extract of power-of-attorney which was produced for execution but could not be executed, Ex.P.6 general power-of-attorney, Ex.P.7 statement by the plaintiff in the earlier suit.
4. Defendant produced as many as four witnesses P.W.1 Patwari,'P.W.2 Babu Khan, P.W.3 Shukar Din, P.W.4 defendant himself appeared. Five documents were produced, the same mutations Ex.D.1 to Ex.D.3, Ex.D.4 copy of judgment and decree passed in earlier suit filed by the respondent/plaintiff dated 09.09.1987, Ex.D.5 statement recorded of the present plaintiff in the earlier suit.
5. The learned Trial Court vide its judgment and decree dated 25.03.1997 decreed the suit in favour of the plaintiff/respondent. The present petitioner being dis-: satisfied from the judgment of the learned Trial Court, referred an appeal on 16.04.1996, however the learned First Appellate Court dismissed the appeal on 09.05.2000, hence this civil revision.
6. Learned counsel for the petitioner contends that this is a third suit filed by the respondent/plaintiff against the same transaction against the same mutations hence not maintainable under Order 23, Rule 1 read with Order 2, Rule 2, CPC. Reliance is placed on PLD 2001 SC 235. Further contends that there is no finding from both the Courts below on this legal objection of the petitioner. The learned counsel for the petitioner while relying on 1994 SC 501, 2011 SCM R 284 and 2005 YLR 2170 contends that the only evidence of the plaintiff in support of his plaint is not a statement in the eye of law and on the basis of statement of the plaintiff without any supporting evidence, the suit could not be decreed but both the Courts below had failed to consider this aspect of the case. The learned counsel for the petitioner contends that the suit of the plaintiff/respondent was time-barred. Reliance is placed on 1997 M LD 2151. The learned counsel for the petitioner further argued on the basis of law laid down by Hon'ble Supreme Court in case reported as PLD 1983 SC 47 wherein it is held that if any fraud has been committed with the plaintiff in the earlier suit as alleged in this case, the plaintiff instead of filing a new suit for a remedy to file an application under Section 12(2), CPC in the earlier suit. Since the respondent/plaintiff has failed to produce on record any evidence except the plaint which cannot considered as evidence hence the suit of the respondent/plaintiff was liable to be dismissed and the evidence produced by the petitioner/defendant has not properly examined while passing the impugned judgments. Further established his arguments that the petitioner/defendant has produced the evidence to substantiate his onus to prove of the issue but both the Courts below have not examined the evidence of the petitioner which has resulted into miscarriage of justice. Even, the first Appellate Court has not passed the judgment by applying his independent mind.
7. Conversely, learned counsel for the respondent/plaintiff' contends that no dispute/issue has been decided as involved in this suit, by the earlier in any suit filed by the plaintiff/respondent.
Moreover, the statement of the defendant/petitioner disclosed this fact that whatever the statements were made before the Courts in the earlier suits, the plaintiff/respondent had been brought before the Court by the defendants/petitioner. On the basis of the admission of the defendant, learned counsel for the plaintiff/respondent contends that this admission is sufficient to establish the fact that the earlier suits filed by the respondent/plaintiff through his next friend were collusive and based on fraud committed by the petitioner/defendant. He has referred the mutation No. 62 Ex.P.5 and contends that this mutation has gifted was tried to be got sanctioned. On 18.07.1980 but the Revenue Officer raised the objection about the fitness of the plaintiff/respondent and demanded the medical certificate from the present petitioner/defendant then he tried to obtain the attorney from the petitioner which also could not be got executed at this time also the Revenue Officer raised the objection about the health of the respondent/plaintiff. He lastly alleged that these all efforts have been made by the petitioner/defendant to usurp the land of the respondent/plaintiff as he was aware of this fact that he will not get any share from the land of the present respondent/plaintiff. In this view of the matter, the learned counsel for the respondent/plaintiff contends that the judgment and decree passed by both the Courts below are in accordance with law. There is no illegality or irregularity committed by both the Courts below while passing the judgment and decree. Hence, the petition may be dismissed with costs.
8. I have heard the learned counsel for the parties and perused the record with the assistance of learned counsel of both the parties from where I gathered that the respondent/plaintiff since his childhood was residing, used to live with the petitioner/defendant. It is also matter of record that during this period he did not remain in conscious either some efforts have been made by the petitioner or he was facing some ailment by the act of God, however, it is a fact that he remained involved in some serious diseases. The proceedings initiated on the Ex.P.4 to Ex.P.6, clearly disclosed this fact that the respondent/plaintiff was not sensible at that time. Even then the statement made in the earlier suit Ex.D.4 and Ex.D.5, also shows that consciously the fact of unconsciousness has been mentioned in the statement of the respondent/plaintiff and the order passed by the learned Civil Judge.
9. Since both those suits have been filed through the next friend which fact has never determined by the learned Trial Court whether the next friend had any adverse interest against the plaintiff/respondent. Moreover, the learned Trial Court has not considered this aspect also that when the man is a fit form his health why he has filed this suit through his next friend. These all factors allowed me to reach on this conclusion that all those suits were filed collusively to get the benefit from those,suits. Moreover, the evidence of P.W.4 whereby he himself admitted this fact that , at the time of recording of statement of, the plaintiff/respondent in the earlier suits, was brought by the petitioner/defendant in the Court so he was living with him under his influence and there was no occasion for the plaintiff/respondent to file the earlier suit against the same, mutations while living in the house of the petitioner/defendant. This ail state of affairs has been taken into consideration by both the Courts below while reaching the conclusion that the suits earlier have no legal effects on the rights of the respondent/plaintiff. Since this Court has reached on this conclusion that the earlier suits have been filed collusively to provide the shelter to the fraudulent transactions committed by the defendant/petitioner, so the Order 23, Rule 1 and Order 2, Ruie 2, CPC having no application on the rights of the plaintiff/respondent. So far as the contention of the learned counsel for the petitioner that application under Section 12(2), CPC only could be filed for the revival of the earlier suit. Since this Court has held that the earlier suits have not been filed by the plaintiff/respondent according to his own wishes, so, there is no force in the arguments of the learned counsel but so far as the law laid down by the Hon'ble Supreme Court is concerned, that is no doubt applicable from the facts and circumstances .Of the case. So far as the question of non- considering of evidence of the petitioner/defendant is concerned, the onus to prove this issue was on the petitioner/defendant about the validity of the transactions as he was beneficiary from these three mutations and he was duty bound to prove about the sanctity of the transactions but he has not referred any evidence which substantiate his arguments or through which he could have succeeded in proving that transactions were not ashamed and liable to be sustained.
10. It is settled law that whosoever the beneficiary of any transactions, he is bound to prove that transaction without any doubt. Since the petitioner has failed to prove the transactions in accordance with law and the learned Trial Court has rightly decreed the suit and the first Appellate Court dismissed the appeal while not found any illegality or irregularity in the judgment of the learned Trial Court. Since both the Courts below have reached the conclusion concurrently after considering the whole evidence produced by both the parties hence I do not find any misreading or non-reading and illegality or irregularity or perversity in the reason given by both the Courts below. Since the judgment and decree of both the Courts below are in accordance with facts and circumstances and the prevailing law of land. Hence this petition having no merits stands dismissed.
Civil revision .