' This is an application under Section 115 of the Code of Civil Procedure (CPC) by way of revision petition and challenges the concurrent findings of fact returned by the Courts below.
2. A suit for declaration was filed by the father of Respondent No, 1, Jharu who was the predecessor- in-interest of the respondents herein. The suit sought a declaration for Mutation No, 2882 dated 18.9.1972 sanctioned in respect of Mauza Karor, Distt Layyah to be declared void and ineffective against the rights of Jharu, the original plaintiff. The suit was filed on 23.5.1984. It was averred in the plaint that land measuring 101K-15M had purportedly been sold to Mst. Asghari Begum, who is the Petitioner No, 9 in the instant petition on the basis of a registered power of attorney dated 15.4.1972 and this Mutation No, 2882 had thereby been got sanctioned fraudulently and collusively against the rights of the plaintiff Jharu. The plaint initially challenges the sale Mutation No, 2882 only. During the pendency of the suit, Jharu died and Respondents No, 1 and 2 were impleaded as his successors-in-interest. On 11.1.1993, the trial Court permitted the plaint to be amended and a prayer to be added so as to seek a cancellation of the power of attorney dated 15.4.72. Later on, upon another application for amendment, the prayer for possession was also allowed to be included in the plaint on 07.07.1993. The suit was decreed by the Civil Court vide judgment and decree dated 28.4.1994. An appeal was filed by the petitioners herein which too was dismissed vide the judgment and decree dated 27.9.2000.
' The following issues were framed by the trial Court:- ' Whether the plaintiff has no cause of action to bring this suit? OPD.
2. Whether the suit is bad for non-joinder of necessary parties? OPD.
3. Whether the form of the suit is incorrect? OPD.
4. Whether the description of the suit property is incorrect? If so, its effect? OPD.
5. Whether this Court has no jurisdiction to entertain this suit? OPD.
6. Whether the suit has been improperly valued for the purpose of Court fee and jurisdiction? If so, its effect? OPD.
7. Whether the plaintiff has not been properly verified according to law? If so, its effect? OPD
8. Whether the plaintiff had appointed any special attorney for the disposal of the property? OPD 8-A. Whether the plaintiffs suit is time barred in view of preliminary Objection No, 1? OPD.
9. Whether the Mutation No, 2882 dated 18-9-1972 is result of fraud, misrepresentation, without consideration and not binding upon the rights of the plaintiff? OPP.
10. Relief.
4. The learned counsel for the petitioners submits that the lower appellate Court has not rendered any finding on Issue No, 8-A which relates to the plaint being time barred and thus the suit being beyond limitation. He further submits relying upon Order VI, Rule 4 CPC that since fraud has been alleged in the plaint, no particulars of the fraud or date of knowledge has been given in the plaint which offends the mandate of Order VI, Rule 4 CPC. According to the learned counsel for the petitioners, Article 95 of Qanun-e-Shahadat Order, 1984 attaches a presumption of truth to a registered document, which though is rebuttable, but has not been rebutted by the respondents/ plaintiffs in the instant case. He has further submitted that the amendment to challenge the registered power of attorney was made after the evidence was closed and which makes the petition barred by time.
5. The learned counsel for the respondents, on the other hand, submits that there are two different stances which have been taken by the petitioners/defendants, one in their pleadings and the one which has brought forth in evidence athluced by the petitioners/defendants runs contrary to the stance taken in the written statement.
6. The lower appellate Court has rightly come to the conclusion from the evidence produced by the parties that the contentions of the plaintiffs to be the residents of Qadirpur, Multan and to be the owner of the suit land was admitted in the written statements submitted on 17.9.84 and 25.4.90. It was not denied also that the Respondents No, 1 and 2 were the legal heirs of Jharu and this fact was not denied by the petitioners/defendants. An important factor which swayed the Courts below was that on 18.5.86 Jharu moved an application that his thumb impressions be sent for comparison with the thumb impressions affixed on the power of attorney dated 15.4.72. It will be recalled that, the Mutation No, 2882 was sanctioned on the basis of the alleged power of attorney dated 15.4.72 which was categorically denied to have been executed by Jharu. The entire superstructure of the petitioners/defendants' case was built upon the impugned power of attorney and thus, an application to have the two signatures compared was regarded by the Courts below of much credence. The said application was granted on 20.7.86. Jharu appeared on 30.7.86. His thumb impressions were obtained and it was not the case of the petitioners herein that the person whose thumb impressions were obtained, was not Jharu. The report of the Finger Expert Bureau is Ex.P.1, according to which, in the opinion of the experts, the thumb impressions obtained by the Court was different from the thumb impressions on the power of attorney. This report was not challenged by the petitioners/defendants and no evidence was produced to rebut the said report
7. The plaintiffs examined Muhammad Ashraf PW.1, an expert from the Finger Print Bureau who substantiated the report of the Finger Print Bureau, Punjab Ex.P.1. Elahi Bukhsh appeared as PW.2 and deposed that he did not identify Jharu and that Jharu was identified by Ahmad Hassan s/o Elahi Bukhsh who was identified by him. Munshi, Respondent No, 1 appeared as PW.3 and he is the son of Jharu. He denied that his father had ever appointed anyone as his general attorney as also that the petitioners/defendants had, by practicing fraud, alienated the land to Jharu. Documentary evidence was also produced by the plaintiffs.
8. In rebuttal, the petitioners/defendants examined Ghulam Hassan DW.1 who deposed that Mutation No, 2882 Ex.P.3 was entered by him upon the statement of Jharu and Muhammad Zaheer.
Rappat Roznamcha Ex.D.1 was made by him and that Jharu was personally known to him.
Muhammad Iqbal, ,Halqa Patwari was examined as 3W.2. Ahmad Hassan DW.3 stated that he identified Jharu s/o Nagar it the time of Mukhtarnama Ex.P.6.
9. The lower appellate Court observed that at the time of avidence, the petitioners/defendants took an altogether different stance from the version which has been taken in their written statement. It was brought forth in evidence by Ahmad Hassan and Muhammad Zaheer, DW.3 and DW.4 respectively that Jharu was a resident of Chishtian. However, Muhammad Zaheer DW.4 took a complete U-turn in his statement and stated that Jharu was a resident of Chishtian and had died before the filing of the suit The inference that the said witnesses wanted the Court to draw was that, in fact, the property belonged to some other Jharu and from whom it was brought by the petitioners. This was altogether a new stance contrary to the one taken in the written statement. If it had otherwise been brought on record that Jharu was to be a resident of Mauza Karor, Distt Layyah.
It has been rightly observed by the lower appellate Court and the trial Court that the testimony of the marginal witnesses of the purported power of attorney does not inspire confidence and in particular regarding the features of Jharu. In order to substantiate further, the stance taken with regard to the property having been alienated by some other Jharu the petitioners/defendants produced Ex.D.10, which was a death certificate entered of a certain Jharu s/o Nagar and entered in Municipal Committee Chishtian on 24.12.1983. This contradiction which was palpable and extremely material weighed With the Courts below in coming to the conclusion that the stance ,taken by the petitioners was wavering and unsubstantiated. Coupled with the fact that the Report of Finger Print Bureau also established that the thumb impressions on the document were different, the Courts rightly came to the conclusion that the transaction was a sham and the sanctioning of the mutation on the basis thereof was fraudulent and void.
10. The learned counsel for the petitioners/defendants has by relying upon Order VI, Rule 4 CPC submitted that particulars of fraud have not been spelt out in the plaint. I am not in agreement with the submission made by the learned counsel. Sufficient particulars have been given in the plaint in order to raise a claim that the fraud and collusiveness had been practiced in bringing about the transaction under challenge.
11. The onus to prove Issues No, 8, 9 was on the petitioners/defendants. Issue No, 8 was regarding the appointment of a special attorney for the disposal of the property by the plaintiff. The Courts below have noticed the material contradictions in the statements of DW.3 and DW.4 with regard to the appearance of Jharu An inference Was rightly drawn by the Courts below that the two witnesses had no inkling regarding the exact features of Jharu an thus were not present at the time of the execution of the alleged power of attorney. However, as stated above, the residence of Jharu being materially different from the one which has been claimed in the plaini also rendered the evidence produced in this regard extremely doubtful The petitioners/defendants clearly tried to take advantage of a dead warrant of a namesake of the plaintiff who had died in Chishtian whereas the petitioners had miserably failed to bring home the fact that the property had been alienated by Jharu and not the be which was the original plaintiff.
12. The petitioners/ defendants led great stress on the fact that Issue No, 8-A relating to limitation has not been adverted to by the lower appellate Court. According to him, the suit was time barred and this issue was important to have been determined by the lower appellate Court However, I do not find any substance in this argument. The trial Court has given its finding on Issue No, 8-A. It is pertinent to mention that the onus to prove the said issue was clearly on the petitioners but it was held by the trial Court that the petitioners had failed to adduce any evidence which would establish that the, suit had been filed beyond the period of limitation. It was for the petitioners to prove that the respondents had knowledge about the attestation of the impugned mutation in the year 1972 and that they failed to file the suit within the prescribed period. The learned counsel-for the petitioners has referred to the statements of PW.3 in support of the arguments that it has been admitted by the said witness that they had knowledge about the fact of mutation in the years 1980-81. I have read the portion of the statement referred to by the learned counsel but it is clear that the learned counsel has misinterpreted the said statement. In fact, the witness in that portion of the statement, simply says that they had knowledge about the land to exist in that area in the years 1980-81. He does not say that they had knowledge regarding the impugned mutation or not Certainly, period of limitation would commence from knowledge about fraudulent mutation.
13. The learned counsel for the petitioners/defendants has relied upon a cluster of judgments on the issue of limitation as well as Section 42 of the Specific Relief Act, 1877. In Jamila Khatoon and others v, Aish Muhammad and others (2011 SCM R 222), it was observed that no averment was made in the plaint as to how and when disputed mutation first came to the knowledge of plaintiffs except making a vague averment. It was also observed in the said judgment that the plaint was silent as to the steps which were taken by the plaintiffs to protect their interest and as to why they remained quite for a considerable length of time. However, in the instant case, it has been specifically mentioned with considerable detail in the plaint that the respondents/plaintiffs had made hectic efforts to trace the land allotted to them and had remained unsuccessful until they found out that the predecessor-in-interest of the present respondents/plaintiffs had been allotted a land in Mauza Karor Nashaib Patti, Distt Layyah. Upon further inquiries, it was revealed that the said land had fraudulently and surreptitiously been mutated in the name of the petitioners/defendants. In Said Rehman and others v. Mst. Balo and others (1973 SCM R 261), the Supreme Court of Pakistan observed that the predecessor-in-interest though alive for many years after entering into compromise, did not raise a grievance or any dispute regarding the house in question. This precedent is also distinguishable, in that, in the instant case, the predecessor-in- interest of the respondents/plaintiffs had raised the dispute in his life time and did by laying a challenge to the impugned sale-deed as well as the mutation. Lahore Development Authority v.
Mst. Sharifan Bibi and another (PLD 2010 Supreme Court 705) lays down the general proposition of law that the law of limitation could not be considered a mere formality and required to be observed being mandatory in nature. There is no cavil with this proposition and the precedent case is not attracted to the facts of the instant case. Mian Muhammad Amin and another v. Mst.
Khursheed Begum alias Naseem Begum through Legal Heirs (PLD 2006 Lahore 371) relates to the issue of allegation of fraud and lays down that the initial onus to prove the allegation was upon the plaintiff. Once again this proposition of law is unexceptionable yet in the instant case the respondents/plaintiffs have proved by cogent evidence that fraud was perpetrated and it has also been proved that the purported general power of attorney was also fraudulent and did not bear the thumb impressions of the predecessor-in-interest of the respondents/plaintiffs.
14. In view of the above, the instant revision petition is without merit and is, therefore, dismissed.