' The leading facts of the case are that Mst. Salma Begum (widow), Jameel Hussain (son), Shamim Akhtar and Naseem Akhtar (daughters) of Manzoor Hussain, respondents (hereinafter to be referred as plaintiffs) on 11.6.2005 instituted a suit for declaration with permanent injunction against the present petitioners (hereinafter to be referred as defendants) and other respondents (hereinafter to be referred as subsequent transferees) with the assertion that they were owners in possession of the disputed property fully mentioned in the body of the plaint and Mst. Salma Begum, Plaintiff No, 1/mother of other plaintiffs, who was an old aged and illiterate lady had a desire to transfer her share in the disputed property in favour of her daughters/Plaintiffs No, 3 and 4 by means of declaration of gift. It was further alleged that the plaintiffs along with the defendants in order to get the mutation attested contacted the concerned revenue Patwari and Plaintiff No, 1 showed her intention about transfer of her share in the disputed property in favour of her daughters, who obtained thumb impressions of the plaintiffs on various documents with assurance that as per their desire the mutation was entered by him and the same would be attested thereafter by the revenue officer, but later on, it transpired to the plaintiffs that the land measuring 14 Kanals 2 Marlas had been mutated by the revenue authorities in favour of defendants by practicing fraud and misrepresentation, which being result of collusiveness was ineffective upon their rights. It was also averred by the plaintiffs in the plaint that defendants had no relations with the plaintiffs and there was no occasion for them to make any declaration of gift in their favour.
They further pleaded that neither any offer of gift was made by them nor it was accepted by defendants and the possession in lieu thereof was also not transferred. It was also disclosed in the plaint that Defendant No, 1 just to strengthen the fraud further transferred apart of property in favour of subsequent transferees by attesting an oral sale Mutation No, 1193 dated 31.5.2005 and prayed that both the mutations be cancelled. It is significant to note that defendants neither submitted their written statement nor produced any evidence before the learned trial Court rather the suit was only contested by subsequent transferees. While facing with the contest of the suit, the learned trial Court captured the disputed area of facts by framing the following issues:-- 1.Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD 2.Whether the suit is false, frivolous and fabricated one and suit is liable to be dismissed? OPD 3.Whether the plaintiff has not come to the Court with clean hands? OPD 4.Whether the suit is time barred? OPD 5.Whether the proper Court fee has not been affixed? OPD 6.Whether the plaintiffs have filed the suit in connivance with the Defendants No, 1 to 4, just to harass the Defendants No, 5 to 7, who are bona fide purchasers? OPD-5 to 7.
7.Whether the Defendants No, 5 to 7 are bona fide purchasers? OPD 5 to 7 8.Whether the Defendants No, 5 to 7 are entitled to receive sale price with cost from the Defendant No, 1, if the suit, of the plaintiffs is decreed? OPD 5 to 7 9.Whether the suit of the plaintiffs is bad for mis-joinder and non-joinder of the parties? OPD 10.Whether the Hiba Mutation No, 1061 dated 13.1.2003 in favour of Defendant No, 1 and subsequent Mutation No, 1193 dated 31.5.2005 in favour of Defendants No, 5 to 7 are against law and facts, based, on fraud and inoperative upon the rights of the plaintiffs? OPP
11. Whether the plaintiffs are entitled to a decree as prayed for? OPP 11-A. Whether the Khasra Nos. 1142 and 1143 consist of Ghair Mumkin Havelly and the plaintiffs are in possession of the same? OPP
12. Relief.
2. Thereafter stock of evidence led by plaintiffs as well as subsequent transferees was collected and after appreciating the same, the learned trial Court dismissed the suit vide judgment and decree dated 21.4.2010. Being aggrieved, an appeal was preferred by the plaintiffs before the learned lower appellate Court and the learned Addl. District Judge vide impugned judgment and decree dated 7.12.2010 accepted the same and decreed the suit of the plaintiffs. Seeming aggrieved, defendants have filed instant C.R.No, 4162/2010 and subsequent transferees also preferred C.R.No, 470/2011 before this Court. As having common questions of law and facts are involved, both these civil revisions are going to be decided jointly by this single judgment.
3. Rana Nasrullah Khan, Advocate, learned counsel for defendants argued that the learned lower appellate Court without rendering its findings on each and every issue passed a mechanical judgment in complete derogation of Order XLI Rule 31 of the Code of Civil Procedure, 1908; that the impugned judgment and decree is result of misreading and non-reading of evidence of the parties available on record; that Issue No, 7 was the most important issue, the onus whereof was placed on the subsequent transferees, who fully proved the same and the learned trial Court while answering the said issue in their favour dismissed the suit instituted by the plaintiffs, but the learned lower appellate Court without reversing the findings on the said issue erred in law while decreeing the suit of the plaintiffs; that admittedly the defendants/subsequent transferees are in use and occupation of the disputed property and a simple suit for declaration without seeking relief of possession was not maintainable, but the-learned lower appellate Court without application of judicious mind while ignoring the said aspect of the case passed the impugned judgment and decree; that the trial of the case was not conducted as per prescribed procedure as evidence recorded in another suit pending between the plaintiffs and defendants was also reproduced in verbatim on the other suit file, who while relying upon the judgments reported as Ali Muhammad and another vs. Muhammad Bashir and another (2012 SCMR 930), Ghous Bakhsh vs. Syed Ali Nawaz Shah and 8 others (PLD 2014 Sindh 306), Nasir Abbas vs. Manzoor Haider Shah (PLD 1989 Supreme Court 568), Shamim Akhtar vs. Muhammad Rasheed (PLD 1989 Supreme Court 575), Syed Iftikhar- ud-Din Haider Garderzi and 9 others vs. Central Bank of India Ltd, Lahore (1996 SCMR 669), Allahyar and others us. Jiand and others (2010 CLC 1931), Mst. Saeed Bibi and another vs. Addl. District Judge, Jampur, District Rajanpur and 2 others (2010 CLC 1938-Lahore), Masood-ulHassan Khan through legal heirs and another vs. Iftikhar Ali and 3 others (2011 MLD 1792 Lahore), Nadar Khan and another vs. Mst. Kamin Taja and others (2011 MLD 1796), Malik Muhammad Tufail and another vs. Messrs Fauji Fertilizer Coi. Ltd. Through Attorney General and Marketing Manager (2000 CLC 1838), Muhammad Sarwar and others vs. Khushi Muhammad and another (2008 SCMR 350) and Shah Nawaz through L.Rs, vs. Abdul Ghafoor and others (2008 SCMR 352) has prayed for acceptance of the instant civil revisions, setting aside of the impugned judgment and decree passed by the learned lower appellate Court and prayed for remand of the suit to the learned trial Court for de novo trial.
4. Learned counsel for subsequent transferees also endorsed the arguments advanced by the learned counsel for the defendants, whereas, learned counsel for the plaintiffs supported the impugned judgment and decree delivered by the learned lower appellate Court and prayed for dismissal of the instant civil revisions.
5. Arguments heard and record scanned.
6. No doubt, there is much force in the argument of learned counsel for the defendants that the learned lower appellate Court while violating the mandate provided in Order XLI Rule 31 of the Code of Civil Procedure, 1908, passed the impugned judgment and decree without rendering its independent Findings on each and every issue and time and again, the Superior Courts have condemned such like practice and matter is required to be remanded. But the chequered history of the case reveals that the suit was filed by the plaintiffs before the learned trial Court on 17.6.2005, which remained pending before it for a period of five years and after the decision of the appeal, these civil revisions are pending for the last 5/6 years, thus, and I am not persuaded to remand the case to the learned lower appellate Court for rewriting judgment alone as the entire material is available on record and while exercising the visitorial/supervisory jurisdiction, each and every aspect of the case can be examined and decided by this Court, therefore, instead of throwing the parties into a new round of litigation, I am compelled to decide the matter on merits after appreciating the evidence available on the record.
7. The basic thrust of the plaintiffs as visible from the contents of the plaint is that Plaintiff No, 1 who was an old, feeble and illiterate lady intended to transfer her share in the disputed property to her daughters/Plaintiffs No, 3 and 4 and for that purpose, the plaintiffs accompanied by defendants contacted the concerned Patwari so that they being witnesses could attest the entry of a gift mutation, who got thumb impressions of plaintiffs on some blank papers with the assurance that the gift mutation had been entered on behalf of Plaintiff No, 1 in favour of Plaintiffs No, 3 and 4 and would be attested by the revenue officer in due course of proceedings. Plaintiffs No, 1 and 3 being PW-.1 and PW-.2 respectively stated on oath that the revenue Patwari as well as revenue officer by playing fraud and misrepresentation attested the disputed gift mutation regarding the disputed property in favour of defendants, who had no relations with the plaintiffs and that mutation of gift as well as subsequent sale mutation being product of fraud and misrepresentation were liable to be set aside. By now, it is also well settled principle that mutation per se is not a deed of title but merely an indicative of some oral transaction settled between the parties at some prior point of time and keeping in view such principle, whenever authenticity of any mutation is challenged, then burden heavily lies on the shoulders of beneficiary of the transaction to prove the mutation as well as original transaction embodied therein, which he was required to fall back upon. Reliance in this respect is placed on the judgments reported as Arshad Ahmad alias M. Arshad and others vs. Muhammad Yar and others (PLD 2012 Lahore 483), Abdul Rasheed through L.Rs, and others us.
Manzoor Ahmad and others (PLD 2007 SC 287) and Rab Nawaz and others vs. Ghulam Rasul (2014 SCMR 1181). The moment two of the plaintiffs deposed as PW-. 1 and PW-.2 in line with the contents of the plaint, the onus was shifted upon defendants/beneficiaries to prove the valid attestation of the disputed gift mutation as well as the transaction embodied therein:
8. Astonishingly, defendants/beneficiaries of original Mutation No, 1061 despite their service neither submitted their written statement before the learned trial Court nor any of them appeared in the witness-box to prove the declaration of gift alleged to have been made by the plaintiffs in their favour, which was accepted by them and in lieu thereof the possession was also handed over to them. Additionally, neither the attesting witnesses nor the Patwari as well as Tehsildar, who entered and sanctioned the original mutation of gift were produced to prove the valid attestation of gift mutation.
9. No direct affirmative evidence is available on record to prove the genuineness of transaction as well as valid attestation of gift Mutation No, 1061 as envisaged in Article 127 of the Qanun- eShahadat Order, 1984 in favour of beneficiaries/defendants. In view of such facts and circumstances, it can safely be concluded that they failed to prove the impugned mutation of gift.
Reliance can be placed on the judgment reported as Arshad Khan vs. Mst. Resham Jan and others (2005 SCMR 1859) and Noor Muhammad and others vs. Mst. Azmat-e-Bibi (2012 SCMR 1373). Para- 9 of the latter judgment referred to above being relevant is reproduced as under:- "9. It has been consistently been held by this Court that mutation by itself does not create a title and the person deriving title thereunder has to prove that the transfer did part with the ownership of the property voluntarily. The onus lay on the beneficiaries to prove that it was bona fide transaction. No unimpeachable evidence was led by them to prove that Azmat-e-Bibi/plaintiff was present at the time of attestation of mutation or that she had instructed Babu, her step-father to make a gift in favour of her step-brothers. The statement of Muhammad Ashraf D.W.8 who at the relevant time was Naib Tehsildar and attested Mutation No, 2659 would be of no avail as he admitted in cross-examination that he knew the parties personally nor the persons who allegedly identified the donor/Azmat-e-Bibi. There is no endorsement on the mutation either that the attestation was made in a public gathering (Jalsa-e-Aam). The evidence of Babu D.W.11, the step- father who purportedly appeared on her behalf to make the report about gift in favour of his real sons and without there being any ostensible reason and to the deprivation of her own children, would not be a credible transaction."
10. There is much force in the argument of learned counsel for the plaintiffs that defendants/beneficiaries were not related to plaintiffs and without assigning any reason, the gift in favour of aliens was not valid. No doubt, a Muslim is free to transfer his property by making a declaration of gift in favour of any person, but when the closely blood related persons of the donor were available then as per dicta laid down in the judgments reported as Barkat Ali through Legal Heirs and others (Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) and Meraj Din vs. Mst. Sardar Bibi and 5 others (2010 MLD 843), there should be reasons to be highlighted as to why the donor was going to make a gift in favour of an alien. On the touchstone of above discussion, it can safely be concluded that defendants failed to prove the transaction of oral gift, genuineness and validity of the disputed mutation by withholding the best available evidence.
Therefore, I am inclined to hold that Mutation No, 1061 dated 13.1.2003 having been managed fraudulently was void and inoperative upon the rights of the plaintiffs.
11. The argument of learned counsel for the subsequent transferees that the subsequent transferees had purchased part of the disputed property from one of the defendants for due consideration and without notice, which fact was fully proved, thus their rights were to be protected, is also not well founded. A subsequent vendee is required to prove the following facts:--
(1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise;
(2) that there was no dishonesty of purpose or tainted intention to enter into the transaction, which shall state that he acted in good faith or with bona fide;
(3) that he had no knowledge or the notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the later.
12. In the afore-noted context, it is thus required that a subsequent vendee should adduce cogent and convincing evidence to the extent of above referred elements: The perusal of evidence available on record led by the subsequent transferees reveals that they neither produced the concerned Patwari, who entered alleged sale mutation in their favour nor the revenue officer, who attested the same to prove that prior to attestation of their mutation, they duly verified the revenue record. Even none of the attesting witnesses of the sale Mutation No, 1193 was produced in the witness-box by the said subsequent transferees. Only one of the subsequent transferees, namely, Ahmed Saleh being DW.1 deposed that they had purchased the property from Muhammad Arshad Defendant No, 1 against a consideration of Rs, 7,00,000/-, but the other two witnesses, namely, Mushtaq Ahmed (DW.2) and Muhammad Akhtar (DW.3) did not utter a single word to the extent that against how much consideration, the same was purchased by the subsequent transferees.
They also did not depose that transaction of sale of the disputed property was settled before them and the subsequent transferees purchased the same bona fidely. Thus, the subsequent transferees miserably failed to prove that the disputed property was purchased by them for due consideration and in good faith. The evidence led by them is deficient, sketchy and unreliable. Additionally, it is settled principle of law that any superstructures built on the basis of fraudulent transaction must collapse upon failure of such transaction. The law has been expounded on the subject by the august Supreme Court in the recent judgment reported as Baja through L.Rs, and others vs. Mst.
Bakhan and others (2015 SCMR 1704). For ready reference, the relevant text is referred as under: "Since the appellants have failed to prove the validity of the gift allegedly made by Respondent No, 1 in favour of Respondents No, 2 to 4, we are inclined to hold that the consequent entry in the revenue record had been managed fraudulently and thus it is void. It is a settled principle of law that any superstructure built on the basis of a fraudulent transaction must collapse on failure of such transaction. Therefore, the contention of the appellants that they are bona fide purchasers of the joint holding, including the 9-Kanals, 1- marla and owned by Respondent No, 1, hence, protected under Section 41 of the Transfer of Property Act, 1882, does not carry any weight."
In the wake of above discussion, it goes without saying that a fraudulent transaction has no foundation to stand and whenever such transaction is declared null and void, then the whole series alongwith superstructure built upon it is bound to collapse. Therefore, Issues No, 7 and 10 are answered in favour of the plaintiffs and against the defendants as well as subsequent transferees.
13. The learned trial Court answered Issues No, 1 to 6, 9 and 11 against the defendants and the subsequent transferees while dismissing the suit of the plaintiffs, which were not assailed by them any further by filing appeal or cross objections before the learned lower appellate Court, so, the findings on these issues are maintained. However, the findings of Issue No, 11-A are found to be result of misreading and non-reading of evidence and when the basic Issues No, 7 and 10 have already been decided in favour of the plaintiffs, then findings of Issue No, 11-A are also reversed and the same is answered in favour of the plaintiffs.
14. The contention of Rana Nasrullah Khan, Advocate for defendants that simple suit for declaration without seeking consequential relief of possession was not maintainable and the suit instituted by the plaintiffs cannot be decreed, is not well founded. As it is proved on record that defendants managed transfer of the disputed property without any independent transaction by means of declaration of gift, which even otherwise could not be proved to have been validly effected. A party seeking declaration, if has failed to claim consequential relief, cannot be non-suited on technical ground. There is unanimity among the superior Courts that mere technicalities cannot be allowed to create any hurdle in the way of substantial justice. Rules and regulations are made to foster the cause of justice and those are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities. In forming this view, I am fortified by the dicta laid down in the case reported as Ch. Akbar Ali us. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114). The apex Court once again after approving the verdict of Ch. Akbar Al's case (supra) and clinching the issue under discussion in a case reported as Mst. Arshan Bi through Mst. Fatima Bi and others vs. Maula Bakhsh through Mst.
Ghulam Safoor and others (2003 SCMR 318 ) held as under:-- "The denial of relief to a party simply on the ground' that consequential relief was not claimed would, in no circumstances, advance the case of justice.
' It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is not claimed. The trial Court in such like circumstances may call upon a party to amend the plaint to that extent and direct him to pay Court fee, if any.
Reliance in this respect is placed upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) where it was observed as under:-- "The contention of the learned counsel for the appellant that the suit could not fail merely by reasons of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem Court fees and then to grant him relief even though he had not specifically asked for it."
' The Judges while dispensing justice are duty bound to apply the provisions of law in their true perspective and the same cannot be avoided simply on the ground that such provisions were not brought to their notice by the parties. We are fortified in this regard from an earlier judgment of this Court in the case of Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Sal ma Afroze and 2 others (PLD 1992 SC 263) wherein it was held as under:-- ",18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State (PLD 1969 SC 278) that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
' Apart from the above there is another aspect of this case which cannot be lightly ignored. The present respondents have suffered during all this time due to the failure of the Revenue Department to implement the decree in its true perspective. They for the reasons best kno.Wn to them in collusion with the petitioners got incorporated those Khasra numbers which were never decreed by the trial Court. All the forums below have accepted this mistake. If this be so, why the respondents should suffer for the wrong acts of the functionaries/ departments. It has been held in the State v. Asif Adil and others (1997 SCMR 209) that a party should not be made to suffer on account of an act or omission on the part of the Court or other State functionaries. In the case in hand the petitioners successfully kept the respondents out of their property on technical grounds wrongly created by the functionaries of the Revenue Department to which they had no right either morally or legally. Resultantly, for what has been stated above, the learned Single Judge of the Lahore High Court through his impugned judgment has advanced the cause of justice to which no exception can be taken by this Court on any ground. The instant petition being devoid of any merit and force is, hereby dismissed and leave declined."
15. No doubt, a different and contrary thought of dicta laid down by the Superior Court is also available on this, subject, but each case has to be decided on its own merits and where the main factual issue has been determined by the Court of law in favour of a party on merits, then to my mind, his us cannot be defeated on the technical ground that he failed to claim a proper relief. The Court being custodian of the rights of the litigants, is vested with the powers to grant relief even if it has not been claimed/prayed for.
16. The other argument of learned counsel for the defendants that evidence recorded by the learned trial Court in one file has been reproduced in verbatim in the other suit file and the suit requires to be remanded to the learned trial Court for de novo trial is also not tenable. Neither any such objection was raised by the learned counsel for the defendants before the learned trial Court when the evidence was got recorded nor any prejudice caused to the defendants could be highlighted by the learned counsel for the defendants during the course of their arguments. This controversy has already been clinched by the apex Court in the judgment reported as Salehon Muhammad and another vs. Allah Yar (1989 SCMR 540), while observing that any such act of learned trial Court for reproducing evidence of one file in the other file in the cases of similar facts was a mere technicality. As such, on this score alone, the parties cannot be thrown in another round of litigation, because no such objection was raised by the defendants at the relevant time and by doing so they accepted such practice adopted by the learned trial Court, which cannot be nullified at this stage when the defendants had not only failed to file their written statement, but also failed to lead their evidence as well as cross-examine the witnesses of rival parties. The case law referred to by the learned counsel for the defendants being distinguishable is not applicable to the facts and circumstances of the instant case.
17. Consequently, both the civil revisions having no merits are dismissed with no orders as to cost.
(R.A.) .