Through this common judgment I intend to dispose of Civil Revision Petition No. (s) 03 of 2012, Civil Revision Petition No. (s) 04 of 2012, Civil Revision Petition No. (s) 06 of 2012 and Civil Revision' Petition No. (s) 07 of 2012, as the same pertain to same subject matter and between the same parties.
Civil Revision Petition No. (s) 03 of 2012:
2. Concise facts of the case were that the plaintif fs filed amended Suit No. 13 of 2009 for declaration, possession, cancellation of mutation Entry No. 105 and permanent injunction before Civil Judge, Harnai (trial Court) against the defendants contending therein that the suit property bearing Khasra Nos. 268, 270, measuring 57 rods 12 poles situated at Mohal Mouza Zarmana, Tappa Saddar Harnai is owned by them and they are in possession of the same. The Defendants No. 1 to 5 fraudule ntly transferred the suit land in their names in the record of rights. It was prayed in the suit: a. Declare that the plaintiffs are the owner (-) in possession of the property/land measuring about 57 rod 12 pole bearing khatooni No. 76/76, Khasra No. 268, 270 (2 Qitas) situated at Mahal and Mauza Zarmana, Tappa Saddar , Tehsil and District Harnai; b. Declare that the gift Mutation No. 105 attested in favour of Defendants No. 1 to 5 is null and void as the same is out come of fraud, misrepresentation and concealment of facts as such the same has no legal sanctity; c. By way of declaring Mutation No. 105 dated 04-09-2001 shall be canceled as well as register Dakhil Kharig of the year 2001 shall be declared void and variation of the record shall be made and the property in question shall be mutated and corrected and the same shall be transferred on the name of plaintiffs; d. Cancel the gift Mutation No. 105 attes ted in favour of Defendants No. 1 to 5 as the same has been effected through fraud, misrepresentation and concealment of fact; e. Directing the Defendants No. 1 to 5 by injunction are restrained from making any sort of interference in the peaceful possession of the plaintiffs over property in question; Restrain the Defendant No. 6 from further transfer , mutating the property in question to any body else to avoid multiplicity of litigation; g. Any other order , as may be deemed fit and appropriate in the circumstances of the case may also be awarded along with the cost of the suit in the interest of justice.
3. The defendants contested the suit on legal as well as factual grounds by filing written statements and prayed for dismissal of the. suit.
4. Out of the pleadings of the parties the learned trial Court framed following issues: i. Whether the suit of the plaintiffs is barred under Section 42 of the Specific Relief Act? OPDs 6 & 10 Whether the suit is liable to be rejected due to non affixation of proper Court fee? OPDs iii. Whether the suit is hit by non joinder of necessary parties? iv. Whether the plaintiffs have no cause of action against the Defendants No. 6 & 10? OPDs 6 & 10 Whether the suit is barred by limitation and liable to be dismissed? OPDS 1 to 5 vi. Whether the disputed land is ancestral property of the plaintiffs? OPP vii. Whether the defendants have purchased the three Khasra Nos. 267, 268 and 270 from the father of Plaintiffs No. 1 & 2/Ali Murad in 1951 at worth Rs. 4500/0? OPD 1 to 5 viii. Whether the defendants have mutate d the land through Hiba in Revenue Record but they had possession of the disputed land since 1951? OPD 1 to 5 ix. Whether the defendants by fraud and misrepresentation got mutated the dispu ted land on their names in year 2001 through gift? OPP x. Whether the gift of disputed property to the Defendants No. 1 to 5 is not a valid gift and the defendants have not taken the possession of disputed gifted land? OPD xi. Whether the plaintiff is entitled for the relief claimed for? OPD xii. Relief?
5. After framing of issues the parties produced their respective evidence.
Civil Revision Petition No. (s) 04 of 2012:
6. The plaintif f Sultan Muhammad filed Civil Suit No. 08 Of 2009 before Civil Judge, Harnai for recovery of Rs.
70,000/- against the defendant Mahmood Khan with the following prayer: a. Declaring that the plaintiff is entitled for the due amount of Rs. 70,000/- which is outstanding against the defendant be returned to plaintiff; b. Declaring that the remaining amount have to be paid in five equal installment: as = 40,000/- per year i.e. 01.4.2010 Rs. 40,000/- 01.4.201 1 Rs. 40,000/- 01.4.2012 Rs. 40,000/- 01.4.2013 Rs. 40.000/- Total amount Rs. 160.000/- That this Hon'ble Court to bound the defendant and take a surety bond in favour of plaintiff. c. That any other relief which deems fit and appropriate be passed in favour of the plaintiffs against the defendant. d. That the costs of the suit also be awarded to the plaintiff against the defendant in the interest of justice, equity and fairplay .
7. The defendant Mahmood Khan filed written statement denying the contention of the plaintif f and prayed for dismissal of the suit. The learned trial Court framed following issues out of the pleadings of the parties: a. Whether the suit is not maintainable in view of legal objections A, B, C, D, E & G? b. Whether the defendant agreed to pay the price of disputed house i.e. Rs. 250,000/- in installment to the plaintiff for which he signed an agreement?
Whether the disputed house is on the land of defendant?
Whether the plaintiff got mutated the land of defendant on his name by practicing fraud? e. Whether the plaintiff is entitle for the relief claimed for? f. Relief?
8. Meanwhile an application was submitt ed for consolidation of Civil Suit No. 8 of 2009 and Civil Suit No. 13 of 2009, which was and both the suits were consolidated.
9. On conclusion of evidence of both the sides, the learned trial Court heard arguments and thereafter , vide consolidated judgment and decree (impugned judgment and decree) dated 10th November , 2010 decreed Civil Suit No 8 of 2009 filed by Sultan Muhammad, whereas Civil Suit No 13 of 2009 was partly decreed filed by the plaintif fs.
10. The plaintif fs and Defendants No 1 to 5 of Civil Suit No 13 of 2009 being dissatisfied from the impugned judgment and decree filed Civil Appeal No. 11 of 2010 and Civil Appeal No. 10 of 2010 respectively before Additional District Judge, Harnai. After hearing the parties the learned appellate Court vide consolidated judgment and decree dated 20th December , 2011 dismissed Civil Appeal No 10 of 2010, while accepted Civil Appeal No. 11 of 2010. Being aggrieved the Defendants No. 1 to 5 of Civil Suit No. 13 of 2009 filed Civil Revision Petition No (s)
03 of 2012 and Civil Revision Petition No (s) 04/2012.
Civil Revision Petitions No. (s) 06 & 07 of 2012:
11. The petitioners were not party before trial Court, however , during pendency of Civil Appeal Nos. 10 & 11 of 2010 the petitioners filed applications under Order I Rule 10 CPC which were dismissed vide order dated 6th September , 2011. Thereafter , the petitioners filed stranger appeals which were dismissed by the learned appellate Court vide consolidated order dated 20th December , 2011. Being aggrieved of the same the petitioners have filed Civil Revision No. (s) 06 of 2012 and (s) 07 of 2012 with the prayer:.
"In these circumstances it is prayed that the honorable Court be pleased to set aside the impugned judgment and decree dated. 10th November, 2010 passed by Civil Judge, Harnai and judgment and decree dated 20th December, 2011 passed by Additional district Judge, Harnai, the petitioners be allowed to join the proceedings and remand the case to trial Court for denovo trial in the interest of justice."
12. Learned counsel for the petitioners contended that the Respondent No 1 in Civil Revision No. (s) 04 of 2012 has not denied the sale agreement, whereby the Respondent No. 1 purchased the suit land from petitioner . On denial of payment of remaining amount the petitioners filed recovery suit. The Respondent No. 1 admitted purchase of land from petitioner . When a document is admitted by a party without any objection, then subsequently he/she could not challenge the same. The learned counsel further contended that the suit land is in possession of petitioners of Civil Revision No. (a) 03 of 2012 and entries are on the names of the petitioners in the record of rights. The suit of respondents in Civil Revision No. (s) 03 of 2012 was hopelessly barred by time. The respondents have no right over the suit land. The petitioners made construction over the suit land.
13. The learned counsel for the respondents controverted the arguments of the learned counsel for the petitioners and stated that the petitioners claimed that they purchased the suit land in 1951, at that time the petitioners were minors. The entries were made fraudulently . The petitioners failed to prove factum of sale. In this regard the petitioners have not produced any witness. Under Article 79 of the. Qanun-e-Shahadat Order , 1984 (Order , 1984) for proving document of sale two attesting witnesses have to be produced. The contention of the petitioners is self contradictory . On one hand alleged that they purchased the suit land, while on the other hand alleged that the suit land was transferred through Hiba.
14. Heard learned counsel for the parties and perused the record with their assistance. The record transpires that the plaintif fs filed Civil Suit No. 13 of 2009 for declaration, cancellation of mutation Entry No. 105 and permanent injunction stating that the suit property bearing Khasra Nos. 268 and 270 measuring 57 rods 12 poles situated at Harnai was owned and in possession of father of the plaintif fs. The father of the plaintif fs sold out Khasra No. 267 to the fathers of Defendants No. 1 to 5 in 1976 in the sum of Rs. 2500/-, which had been transferred in the name of Gul Muhammad in the same year. The Defendants No. 1 to 5 contended that the land bearing Khasra No. 267, 268, 270 having been purchased by them in the year 1951, however inteqal was carried out in the year 2001 in the shape of Hiba. The record transpires that Khasra No. 267 had been transferred in the name of Gul Muhammad, father of Defendants No. 1 to 5, in the record of rights on 23rd October , 1976, whereas the suit land bearing Khasra No. 268 and 270 was transferred in the names of Defendants No. 1 to 5 in the record of rights on 5th September , 2001.
15. The record reveals that the suit property was mutated in the name of father of plaintif fs. The Defendants No. 1 to 5 contended that the suit land is purchased property . The same was purchased in 1951, whereafter in 2001 transferred it to their names in the record of rights. PW-2 Abdul Naeem is the attesting witness of the transfer , who stated that neither he went to the revenue office nor signed transfer/ Mutation No. 105. The statements of the witnesses of the plaintif fs are consistent in regard of possession of suit land and fraudulently transferred by the defendants.
16. The defendants alleged that they purchased the property in 1951, whereas the plaintif fs contended that they never sold the property to the defendants . The burden of proof lies on the defendants to prove that they validly purchased the suit property . The defendants' witnesses DW-1, 45 years of age, stated in cross-examination that he has no knowledge in respect of dispute between the parties. DW-2 Muhammad Yousaf, aged 47 years, in cross- examination stated that Ali Murad had sold the property bearing Khasra No. 268, 270, 267 upon Gul Muhammad.
The witness further narrated that All Murad sold the property prior to his (witness) birth. DW-4 Bakhtiar in his deposition stated that he was not present at the time of purchase. The attorney of defendants aged 30 years deposed that the suit land was purchased by his grandfather in 1951. His grandfather had purchased the property bearing Khasra No. 267, 268, 270 in sum of Rs. 4500/-. The witness further stated that it is correct that the value of property mentioned in the mutation is Rs. 40,00,000/-.
17. From the testimony of defendants it appeared that they have no knowledge in regard of purchase of property and mutation. None of the witnesses were present at the time of alleged sale purchase. In written statement no valuation of sale is mentioned, whereas in Transfer No. 105 valuation in figure 22400000/- and in figure 2240000/- is mentioned. As per Transfer No. 105 the transfer was effected on the basis of Hiba. The defendants have neither produced any witness of purchase or Hiba.
18. The plaintif fs admitted that their father sold Khasra No. 267 to the father of defendants in 1976, which was transferred in the same year. While in respect of the suit property neither father of the defendants nor the defendants bothered to transfer the same in their name and waited till 2001. It could not be believable that father of defendants was Naib Tehsildar in Revenue Department, waited for such a long period for transfer . Even otherwise the purchased property bearing Khasra No. 267 was transferred in the name of the father of the defendants, while Khasra Nos. 268 and 270 were transferred in the name of the defendants. The attorney stated that the suit property was purchased by grandfather , while the defendants Stated that they purchased the suit property in 1951.
19. Now adverting to another aspect of deposition of attorney . The CNICs annexed with the power of attorney shows that the Defendant No. 2 was born in 1953. The other defendants are younger then the Defendant No. 2.
The defendants contended that they - purchased the property in the year 1951, at that time none of the defendant was born. Only this aspect is sufficient to discard the contention of defendants. The transfer of mutation was effected without knowledge of plaintif fs and transfer was made in the revenu e record fraudulently with the connivance of concerned revenue authority .
20. It is settled principle of law that the fraud vitiate most solemn transaction/proceeding and no limitation would run against such transaction. The factum of fraud proved from the statements of witnesses of defendants. The defendants had got transferred the suit property fraudulently and being benefi ciary of above referred khasra numbers. The defendants have failed to produce any cogent, trustworthy evidence which confirmed their contention. The defendants were bound to prove the transaction and in regard of transfer with ownership of property in favour of transferee and that mutation was duly entered and attested. The Honorable Supreme Court of Pakistan in case Rehmatullah v Saleh Khan 2007 SCMR 729 held that fraud vitiates even solemn order. It is settled principle that when basic order is illegal and without lawful authority then all superstructure built on it would fall on the ground automatically . Referenc e is made to Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mill's case PLD 1982 Lahore 1 .
21. It appears from Transfer No. 105 that the transfer did effect on the basis of Hiba. The defendants have not produced a single witness in regard of Hiba, where and in whose presence the plaintif fs had gifted the suit property .
The defendants have not stated whether the gift was oral or written. No such explanation has been brought on record by the defendants. The defendan ts have not produced any official from the revenue staff. It is admitted principle of law that to make a valid gift three necessary ingredients thereof are to be proved. The defendants have failed to furnish reason for such gift. One can gift on the basis of love and affection. It can be unbelievable that one should deprive the sons and gift the property to another person. Reliance is placed on the case of Barkat Ali through legal heirs v . Muhammad Ismail through Legal Heirs 2002 SCMR 1938 .
22. This Court vide order dated 17th June, 2020 directed to file amended title by impleading the legal heirs of Respondent No. 3, but I B after more than 135 days the counsel for the petitioners filed amended title. Under Article 177 of the Limitation Act, 1908 the period provided' for impleadment of legal heirs of respondents/plaintif fs is 90 days.
It would be appropriate to reproduce the relevant Article: 177 Under the same Code to have the legal representative of a deceased defendant or a deceased respondent made a partyNinety days The date of death of the deceased defendant or respondent
23. Under Order XXII Rule 4(3), CPC where no application for impleading the legal representative of deceased defendant within the time limit provided under the law the Court would proceed with the suit and continue the proceedings notwithstanding, the death of the defendant. It would be appropriate to reproduce Order XXII, CPC: "4. Procedure in case of death of one of several defendants or of sole defendant. --(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone [or on receipt of an intimation of the death of such defendant from the person nominate d by him for that purpose under Rule 13, Order VIII] or a sole defendant or sole surviving defendant dies and the right to sue survives the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
[(3) When within the time limited by law no application is made of intimation is given under sub-rule (1) the Court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such defendant have the same force and effect as if it had been pronounced before the death took place.] [(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death and such judgment shall have the same force and effect as if had been pronounced before his death took place.]"
24. The death of appellant/ petitioner does not automatically render the appeal or revision liable to be dismissed after change introduction in Order XXII Rule 3(2), CPC and 4(3), CPC. As per amendment the non-impleadment of legal representative of deceased plaintif f or defendant does not abate the suit automatically . The Courts empowered to pass judgment when failure of party to bring on record the legal heirs of a deceased party in pending proceedings it not fatal such proceedings.
25. Under Order XXII Rule 3, CPC and Rule 4(3), CPC failure of legal represe ntative of deceased plaintif f or defendant to apply for bringing the legal heirs of deceased on record, such failure do so no legal effect to the proceedings. Non impleadment of legal heirs of deceased plaintif f or defendant could not legally hamper the process. Reference is made to the case Muhammad Sadiq v Muhammad Sakhi PLD 1989 SC 755, in which it was held: "We have given our earnest consideration to this question, but we have not been able to subscribe the contention of the learned counsel for the petitioner that the proceedings in the case were rendered void and of no legal force as the legal heirs of the plaintiff did not apply for their impleadment within the perio d of limitation after the death of the plaintiff Correct that according to the amending) sub-rule (2) of Rule 3 of Orde r XXII, C.P.C. an application for the impleadment of the heirs of the decea sed is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, we do not understand as to how they should be made to suffer and the Court straightaway give decision again st them. Now when the L. Rs. of the plaintiff were not impleaded within time allowed by the law i.e. 90 days, the suit will not be dismissed as abated and the Court B may proceed with the suit notwithstanding the failure to implead the Legal Representatives of the plaintiff To similar effect is the case of death of defendant as laid down in Order XXII, Rule 4, sub-rule (2). The amending rule provides that even in the absence of application having been made for impleading the L. Rs. within the prescribed time order or judgment in the case may be pronounced in the suit or appeal and it will have the same force and effect as it has been, pronounced before the death.
It is to be seen that when there is no intimation or application, made as required under sub-rule (1) of Rule 3, the Court shall continue with the adjudication of suit and the decree so passed will be valid and shall have the same effect as if the death has not taken place. However , if it is brought to the notice of the Court that the plaintiff died and nobody made application under sub-rule (1), the Court can implead Legal Representatives of the plaintiff suo matu according to the list given under Order VII, Rule 26 of the plaintiff accompan ied with the plaint and similarly under Order VIII, Rule 13 the list of the Legal Representatives of the defendant attached with the written statement.
The order is to be passed which made or the decree is to be passed which will be binding on them unless set aside under sub-rule (9). Hence no question of abatement could arise in view of the Law Reforms Ordinance (XII of 1972). The amending rules also apply to appeals and the word plaintiff shall be held to include the appellant and the word defendant to apply to respondent and the word suit to appeal. Prior to the 1972 Amendment when the sole appellant or respondent died, the appeal abated unless substitution was effected and decree so obtained was a nullity ."
26. The revisional power of this Court under Section 115, CPC is limited. While exercising the revisional jurisdiction this Court is not permitted to dilute upon merit or reopen the case. This Court in revisional jurisdiction only confine itself to the law point involved, in the matter or specific portion of evidence if omitted by the Courts below . The concurrent findings of facts cannot be disturbed unless it is against the evidence or perverse and it could amount to grave miscarriage of justice. Reference is made to the case of Kanwal Nain v Fateh Khan PLD 1983 SC 53, in which it was held: "Clearly the decision of the learned Single Judge, impugned in this appeal, turns on the determination of a question of fact. As pointed out by this Court in Muhammad Umar Beg v. Sultan Mahmood Khan, revisional power under Section 115, Civil Procedure Code are primarily intended for correcting errors made by subordinate Courts in the exercise of their jurisdiction. Also ordinaril y erroneous decisions of fact are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom. In this regard I am tempted to cite here the illuminating observations of their Lordships of the Privy Council in Venkatagiri v. H. R. E. Boar d, Madras (PLD 1949 PC 26), which has been followed by this Court in Umar Dad Khan v . Tila Muhammad Khan (2): "In Mohunt Bhagwan Ramanuj v. Khetter Moni Dassi 1 CWN 617 the High Court of Culcutta expressed the opinion that sub-section (c) of Section 115, C.P.C, was intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts, so as to prevent gross injustice in non-appealable cases.
This passage 'was dissented from by the Calcutta High Court in Enat Mondul v. Baloram Dey 3 C W N 581, but was cited with approval by Lord Williams, J. in Gulabchand v. Kabiruddin 58 Cat. 11-AIR 1931 Cat.
27. Their Lordships can see no justification for any such review ; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could, be measured. Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) That the order of the sub ordinate Court is within its jurisdiction ; (b) that the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction that Court has not acted illegally , that is, in breach of some provision of law, or with material irregularity , that is, by committing some error of procedure in the course of the trial 'which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no powe r to interfere because it differs, however profoundly from the conclusions of the subordinate Court upon questions of fact or law.' No such matters arose in this case, and the order of the High Court upon the petition was without justification."
27. So far as the Civil Revision Petition No. (s) 4 of 2012 is concerned. The suit of respondent was decreed by the trial Court and appellate Court reversed the judgment of the trial Court and dismissed the suit. The suit filed by the petitioner is for recovery of Rs. 70,000/-against the respondent in respect of remaining purchase amount of piece of land. The plaintif fs/ respondents suit was decreed by the Courts below . The suit piece of land also subject matter in Civil Revision No. (s) 3 of 2012. This Court has come to the conclusion that the respondent in civil revision No. (s)
3 of 2012 is no more land owner how the sale purchase remained intact.
28. So far as Revision Petition Nos. (s) 06 and (s) 07 of 2012 are concerned. The petitioners in the referred to petitions were not party in proceedings. Even otherwise they failed to produce any document to create right in favour of petitioners. Mere on the ground that they have interest in the suit property by itself is no ground to remand the matter in order to frustrate the previous proceeding.
In view of the above discussion the Civil Revision Petition No. (s) 03 of 2012, Civil Revision Petition No. (s) 04 of 2012, Civil Revision Petition No. (s) 06 of 2012 and Civil Revision Petition No. (s) 07 of 2012 being devoid of merit are hereby dismissed with no orders as to costs.