' AMIN-UD-DIN KHAN, J.--- Through this revision petition petitioner has challenged the judgment and decree dated 15-8-2002 whereby appeal filed by the respondent-defendant was accepted and judgment and decree dated 16-9-1999 passed by learned Civil Judge, Sargodha decreeing the suit of the petitioner-plaintiff, was set aside.
2. Brief facts of the case are that plaintiff-petitioner filed a suit through next friend Mst. Khursheed Begum, his wife mentioning that plaintiff is lunatic. In the plaint he challenged transfer of his property through registered sale deed by his brother Bashir Ahmad/defendant No,10 as Attorney of the plaintiff. Defendant No,10 filed his written statement wherein he has pleaded that though the plaintiff is mentally ill but he cannot be termed as lunatic. He has pleaded that if the suit is decreed, he is ready to return the sale proceeds to the purchasers i,e, defendants Nos.1 to 8, who also filed their written statement wherein they pleaded that through registered sale-deed dated 7-3-1979 registered on 8-3-1979 they have purchased the suit property from the plaintiff, through his validly constituted attorney Muhammad Bashir. Defendant No,9 was made party on the ground that a decree of pre-emption has been passed in his favour by the revenue court. Defendant No,9 also filed his written statement wherein he has pleaded that he was tenant on the suit land and the land has been validly transferred by the plaintiff through his validly constituted attorney in favour of purchasers i,e, defendants Nos.1 to 8 and he has filed a pre-emption suit to pre-empt the sale of that land, which suit has been partially decreed by the revenue court in his favour, and hotly contested the suit. Issues were framed. The parties were invited to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closure of the trial vide judgment and decree dated 16-9-1999 learned trial court decreed the suit. Appeal was preferred which was accepted by the learned first appellate court vide judgment and decree dated 15-8-2002. Hence, this revision petition.
3. Learned counsel for the petitioner states that learned trial court has decided Issue No,4 in favour of the plaintiff-petitioner but the learned first appellate court has reversed the well-reasoned findings recorded by the learned trial court without any justifiable reason; therefore, states that same are not sustainable under the law. Prays for reversal of judgment and decree passed by the learned first appellate court.
4. On the other hand, learned counsel for the sole respondent argues that the brother of the petitioner was validly constituted attorney. He has duly transferred the land through registered sale deed and states that both i,e, plaintiff and his brother Bashir Ahmad are the residents of the same house. Further states that the suit has been filed in order to frustrate the decree of pre-emption passed in favour of the respondent, therefore, suit has been filed with the connivance of the original vendees as well as Bashir Ahmad, the Attorney. Further argues that the learned first appellate court has noted that plaintiff vide his statement dated 20-12-1992 deleted defendant No,11 i,e, the Province of Punjab and vide order dated 26-1-1993 the learned trial court deleted Bashir Ahmad/ defendant No,10 in whose favour special power of attorney was constituted on 7-3-1979 and the vendees defendants Nos.1 to 8 were also deleted on 26-1-1993 by the learned trial court, therefore, states that in favour of respondent there is a pre-emption decree when defendants Nos.1 to 8 and 10 have been deleted, the suit was absolutely not maintainable and suit was not properly constituted, hence, was not proceedable. Further states that in accordance with section 62 of the Lunacy Act (No, IV of 1912) the alleged next friend of the plaintiff was required to apply before the learned District Judge for an inquiry with regard to the unsound mind and incapable of managing himself and his affairs but no such petition was moved nor the said procedure has been adopted, therefore, filing of suit showing the plaintiff as lunatic was not competent.
5. I have heard learned counsel for the parties at full length and have gone through the record available on the file with their able assistance.
6. I have noticed that it is mentioned in the judgment of the learned first appellate court that the attorney was deleted from the array of defendants as well as the vendees were also deleted and the suit remained only against the respondent in whose favour the part of the suit property was transferred on the basis of a decree passed in a pre-emption suit filed in the revenue court, therefore, it is visible from the proceedings and the record that the suit in hand has been filed only to frustrate the decree passed in favour of the respondent. When the case of the petitioner-plaintiff that he was lunatic at the time of alleged power of attorney in favour of his brother and on the basis of power of attorney the transfer of property through sale deed is invalid, when the said brother Bashir Ahmad and the vendees have been deleted from the array of defendants it means that the power of attorney as well as sale A deed in favour of vendees i,e, Muhammad Yar etc. Have been impliedly admitted and if not admitted, without impleading them no decree could have been passed by the learned trial court, therefore, findings recorded by the learned trial court against the respondent were not sustainable under the law and the learned first appellate court has rightly reversed the same.
7. In the suit in hand, the basic attack of plaintiff was upon power of attorney by him in favour of his brother Muhammad Bashir and the sale of land by his attorney in favour of Muhammad Yar etc., when said Muhammad Bashir and vendees Muhammad Yar etc. Have been deleted from the array of defendants, therefore, plaintiff cannot challenge the pre-emption decree on that sale, therefore, the suit was not competent.
8. So far as findings on Issue No,4 are concerned, the procedure required under the law to be adopted for declaration of a person to be of unsound mind or lunatic was provided under the Lunacy Act (as this Act was in force at that time) and an inquiry was required under section 62 of the same Act, which was to be conducted by the District Court but no such procedure has been adopted. Without adopting the procedure the suit filed by the next friend who is wife of the plaintiff showing him lunatic was not permissible, as there was special procedure provided under the special law and without adopting the said procedure the suit was not competent.
9. In this view of the matter, findings recorded by the learned first appellate court are in accordance with law and no, case for interference has been made out, therefore, this civil revision stands dismissed.