Through this civil revision, petitioner has challenged the judgment & decree dated 4.10.1990 passed by learned Addl: District Judge, Muzaffargarh, whereby the appeal filed by the petitioner was dismissed and the judgment & decree dated 01.04.1989 passed by learned Civil Judge, Muzaffargarh, whereby the suit for declaration filed by Respondent No, 1/plaintiff was decreed.
2. The petitioner has filed C.M.No, 1593 of 2010 stating therein that Respondents No, 1(i) and (ii) have compromised with the petitioner and they have sworn their affidavits to this effect, which have been appended with this application. Even Mr. Sarwar Awan, Advocate appeared on behalf of said respondents and states that he has no objection if the civil revision is accepted. All other respondents have been proceeded ex-parte vide order dated 4.3.2011.
3. Learned counsel for the petitioner-defendant states that the suit property was transferred through registered documents; that actually the petitioner purchased the suit property and to avoid from pre-emption it was shown as a gift, otherwise he paid. the price and through registered document it was transferred in favour of petitioner; that the documents were registered on 3.8.1977, whereas the suit in hand was filed on 11.1.1987. Learned counsel further states that when plaintiff has challenged the registered document, therefore he was bound under the law to prove the case pleaded by him but he miserably failed to prove the same and that when fraud was alleged by him, so he was bound under the law to plead the fraud with full detail and prove his pleadings as well; that his witnesses also contradict his pleadings but the learned Courts below failed to exercise the jurisdiction vested in them by law and misinterpreted the evidence led by the parties and the findings recorded by the Courts below are result of misreading and non reading the material evidence available on the file. It has been further argued that as the suit was clearly time barred and Issue No, 5-A was also framed but the findings of learned Courts below are absolutely wrong on this point also.
4. I have heard the learned counsel for the petitioner at full length and also gone through the evidence available on the file.
5. It is admitted position that the plaintiff was a Lumberdar, as this fact has been admitted by his witnesses, who deposed that he is an educated person. Whereas, Allah Ditta petitioner-defendant was admittedly an illiterate person. Even the possession of defendant/ petitioner upon the suit land has been admitted by P.W-3. He admitted that the suit property was transferred in the name of defendant 11 years ago through registered gift deeds. This transfer was pre-empted by Mukhtiar Ahmad through a pre-emption suit filed on 9.09.1978 but subsequently according to the petitioner- defendant, said Mukhtiar Ahmad taking some money from him withdrew that suit, copy of plaint is Ex.D-1 and copy of statement and order of the Court for withdrawal of that pre-emption suit is Ex.D-
2. The registered documents have some presumptions in accordance with, the Registration Act.
The plaintiff is admittedly an educated person and also Lumberdar of Mouza. He has alleged fraud.
For alleging the fraud, there are certain principles to plead the same with full detail. As a person praying the Court to declare a document or a transaction to be null and void, therefore the plaintiff is duty bound to be specific in the stand when he alleges fraud and also to plead the same with full detail. The plaintiff has not pleaded the alleged fraud in detail, as was required under the law.
The witness of plaintiff P.W-3 has admitted the possession, of transferee i,e, petitioner-defendant over the suit property. Further, after the transfer of suit property in favour of petitioner it was pre- empted and filing of suit in hand after 10 years of registered document in the above circumstances when the plaintiff is Lumberdar and a literate person, the suit was certainly time barred. Even the witnesses of plaintiff have not deposed that when the transaction came in their knowledge, as P.W- 3 stated that 11 years ago the land was transferred through a registered document. On material points the witnesses of petitioner and even the petitioner have not been cross-examined by the plaintiff. It is settled now that when on material point alleged by a witness in his examination in chief if he is not cross-examined, that portion of his statement will, be presumed to have been admitted by the other party.
6. The most important factor in this ease which has been ignored by the Courts below is that plaintiff himself never appeared in the trial of the case as his own witness, as it was a case of allegation of fraud played upon him. P.W-4, his son, appeared as his Attorney and there is nothing mentioned that why his father himself is not appearing before the Court as a witness. Further, the Attorney of plaintiff appeared after the close of evidence of defendant, in affirmative as well as rebuttal evidence. The statement of Attorney of plaintiff can be read only in the rebuttal evidence, as the same has been got recorded after the close of defendant's evidence. Therefore, the statement of P:W-4 who is Attorney of plaintiff cannot be read in affirmative evidence of plaintiff because I am clear in my mind that defendant has to rebut the evidence led by the plaintiff and when the plaintiff did not appear in person or through attorney, in affirmative evidence the defendant was not having opportunity at that time to rebut his statement. As in this case the fraud has been alleged by the plaintiff, therefore the onus to prove the pleading -was upon him what he has pleaded. The onus shifts only in such like cases when plaintiff appears before the Court and makes a statement on oath that he has not got registered the impugned document. In this case, when the plaintiff, opted not to appear in affirmative evidence and not to produce his Attorney in affirmative evidence, then there is no question of shifting the onus of proof. In these circumstances, both the Courts below by ignoring this legal position fell in error while recording the findings against the petitioner-defendant. The findings recorded by the Courts below are absolutely against the law and evidence available on the file and also the result of unaware with the settled principles of law as well as non-reading the evidence led by petitioner-defendant.
7. For the foregoing reasons, this civil revision is allowed and the impugned judgments & decrees passed by two Courts below are hereby set aside, Resultantly, the suit filed by Respondent No, 1/plaintiff shall stand dismissed with costs throughout.