"Secundum allegata et probata"
(Who lodges a fact, must prove it.)
MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. Facts in brief are that petitioner filed a suit for declaration praying that gift mutation No.Jeem/2670 sanctioned on 26.8.2010 regarding property Khata No.268, Share of 301/2342, measuring 15 kanals 01 marla, Khata No.269, Share of 421/8261 measuring 21 kanals 16 marlas, Khata No.272, Share of 423/3292, measuring 21 kanals 03 marlas, total property measuring 63 kanals 03 marlas, according to register Haqdaran-e-Zameen for the year 2006-07, Mauza Musa Khel Shumali, Tehsil and District Mianwali be declared against law, facts, without consent, without transfer of possession, without completion of conditions of gift, based on malafide, in connivance with the respondent, ineffective upon the rights of the petitioner and void. On the basis of suit gift mutation, the entries in the revenue document and inheritance mutation No. Jeem/2989 dated 31.12.2012 of Muhammad Yousaf Khan regarding suit property be declared against law and facts, without lawful authority, based on connivance of the revenue employees, malafide, not effective upon the rights of the petitioner and void and liable to be corrected in favour of the petitioner. It was also prayed that respondents be restrained forever to interfere in the possession and cultivation of the suit property. It was, likewise, claimed that respondents were asked time and again to accept the petitioner as owner in possession of the suit property and to get cancelled the suit mutations and get corrected the revenue record regarding suit property in favour of the petitioner, but after dilly-dallying the matter they denied outrightly about two days prior to filing of the suit.
3. The respondents (real brothers of the petitioner) resisted the suit and attributed the filing of the suit to malice and avarice. They stated that the gift mutation in question was sanctioned after complying with all conditions of a valid gift and with free consent alongwith transfer of possession and on the same day the predecessor-in-interest of the petitioner got sanctioned another mutation in favour of the petitioner and both these mutations were sanctioned in a Jalsa-e-Aaam.
That the petitioner had deliberately not filed the suit in issue during the lifetime of his father since he feared that his father would not support the suit in question. Issues were framed and parties were directed to produce evidence. After hearing both parties and considering their evidence the trial court dismissed the suit filed by the petitioner.
4. The trial court clearly noted in its judgment that the petitioner had challenged the mutations on the basis of fraud and misrepresentation and, therefore, there was a burden to be discharged in this respect by the petitioner. However, the trial court noted that besides the fact that the plaint was absolutely silent about the particulars of fraud or for that matter about the modus operandi allegedly employed by the respondents or even for that matter about the alleged collusion between the respondents and the revenue officials, the petitioner had also failed to bring forth any oral evidence to corroborate his version. In fact, PW-2 Khan Meer Khan who appeared as a witness of the petitioner expressed his ignorance about the transaction of gift mutation and had no evidence to offer. The trial court also noted that by merely alleging fraud without any particulars and without any specifics and without mentioning as to where, when, why and by whom such fraud had been practiced the petitioner had not crossed the rubicon. The threshold had, therefore, not been met.
5. The trial court also rightly noted that the initial burden of proving fraud lies on the person who alleges fraud and the onus only shifts to the beneficiary when once such onus has been rightfully discharged. The trial court rightly relied on "Khan Muhammad v. Muhammad Din through legal heirs" (2010 SCMR 1351) and "Muhammad Yousaf and 2 others v. Muhammad Afzal and 6 others" (2015 YLR 1162) to reject and discard the claim of the petitioner and, therefore, rightly dismissed the suit filed by him. This being the pivotal issue and this having been decided against the petitioner the suit so filed was dismissed.
6. This led the petitioner before this Court to file an appeal before the District Court. Even the District Court in its judgment dated 15.7.2019 went at pains in noting that since no particulars whatsoever of fraud, misrepresentation, deception or hoodwinking had even been remotely alleged let alone proved there was no way that the suit could make any headway and since the petitioner had not been able to shift the onus the suit could not succeed.
7. The appellate court after noting the presence of Article 118 of the Qanun-e-Shahadat Order, 1984 quite rightly ruled that the petitioner had failed to discharge the burden of proof as contemplated by Article 118 of the Qanun-e-Shahadat Order, 1984. The appellate court recounted that burden of proving fraud is on the party alleging it especially where a long period had expired and valuable rights had accrued. The appellate court also noted the presence of Order VI, Rule 4 CPC, measured the plaint filed by the petitioner in the context thereof and quite rightly noted that the requirements of Order VI, Rule 4 CPC as also Article 118 of the Qanun-e-Shahadat Order, 1984 had not even been remotely met. The appellate court noted that neither in the plaint nor in his evidence did the petitioner mention anything with respect to details of fraud and a generalized omnibus allegation did not suffice.
8. The appellate court also noted that the revenue officials who were alleged to have connived with the respondents had not been cited as respondents either and which clearly indicated that the petitioner had not been able to discharge the initial onus. The appellate court also observed that the beneficiary of the gift mutation under challenge was the father of the petitioner and the petitioner had deliberately not filed the suit in question during the lifetime of his father because he feared the inevitable. The appellate court also noted that the petitioner in his deposition had admitted his father to be an honest and trustworthy man. The stance of the respondents was appreciated in paragraphs No.22 and 23 of the judgment of the appellate court in the following words:- "22. In suit gift mutation the total gifted property was 63 kanals 03 marlas, which was gifted by the appellant to his father Muhammad Yousaf Khan. In the gift mutation No.Jeem/2671, the gifted property was also 63 kanals 03 marlas, gift by Muhammad Yousaf Khan, father of the appellant, to the appellant. This clearly shows that through these two mutations 63 kanals 03 marlas of land was transferred by the appellant and his father Muhammad Yousaf Khan to each other.
23. It means that there is a force in the version that actually the said property was exchanged by appellant and his father Muhammad Yousaf Khan with each other, but in order to avoid the Government Fee they got sanctioned the suit gift mutations instead of exchange mutation.
Appellant never challenged the suit gift mutation in the life time of his father and after the death of his father and after sanctioning of inheritance mutation of his father, appellant filed the suit before learned trial court, which also shows the malafide of the appellant."
9. The appellate court thereafter dismissed the appeal filed by the petitioner since in its view the initial burden had not been discharged by the petitioner and hence the burden never shifted to the beneficiaries of the gift mutation in question.
10. I have heard the counsel for the petitioner, Mr. Muhammad Asim Iqbal Awan, and have perused the available record. At the outset the counsel for the petitioner was asked to read the plaint filed by the petitioner before the trial court. He read the following paragraphs from the plaint which according to him are enough to shift the initial burden:-
11. A perusal of this portion of plaint clearly indicates that except for bald and empty rhetoric no particulars, specific details or nuances of what fraud was practiced, how it was practiced, on whom it was practiced and by what mechanism it was practiced have been recorded in the plaint. The particulars of fraud or misrepresentation having not been canvassed there is no way that initial onus could have shifted on to the respondent to prove the gift mutation in question. It is trite that the burden of proving fraud is on the party alleging it and that, too, by clear and convincing evidence particularly where a long period had expired and valuable rights have accrued to the other side. The law laid down in "Ahsan Ali and others v. District Judge and others" (PLD 1969 SC 167) is relied upon with advantage.
12. What adds flavour to the concurrent findings recorded by the courts below with respect to this particular aspect is that the only witness produced by the petitioner i.e. PW-4 Khan Meer Khan expressed his ignorance about the whole transaction and did not state anything which could have even remotely established fraud. The petitioner, it may be mentioned here, produced no other witness in his favour.
13. What also adds spice to the concurrent findings is the relationship between the petitioner and the deceased respondent, Muhammad Yousaf Khan, who was the father of the petitioner and while the petitioner very conveniently accepts as true and correct the adjacent mutation in his favour by his father recorded on the same date, he without much ado proceeds to attack the other mutation by him in favour of his father as collusive and fraudulent but even then refuses to divulge details with respect to fraud or deception so practiced. It may be mentioned here that the petitioner in his cross-examination admitted his father to be a trustworthy and honest man as well. Also it is here that the aspect of non-impleadment of revenue officials gains importance. Since the petitioner has also not impleaded the revenue officials there is no way that he can prove the case loosely set up by him. What also counts against the petitioner is the fact that during the lifetime of his father he chose to remain quiet for obvious reasons.
14. It may not be out of place to recount here that while the petitioner wants to enjoy the fruits of a gift mutation in his favour by his father but wants to wriggle out of the rigors of the gift mutation by him in favour of his father recorded on the same date and thereby wants to enrich himself unjustly.
In the absence of any particulars and more importantly in the absence of any dates or events about the nature of fraud, the kind of fraud, the method of fraud etc. there is no way that the petitioner can deny and disown the mutation in question.
15. Where a party asserts fraud it should clearly narrate the same in its pleadings with clarity of facts and should also narrate the same with clarity during the course of examination in chief. Any bald statement about commission of fraud would be of no legal consequence. Reliance with advantage is placed on "M/s Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 and others" (2013 SCMR 1419).
16. In "Taj Muhammad Khan through L.Rs. another v. Mst. Munawar Jan and 2 others" (2009 SCMR 598), the Hon'ble Supreme Court of Pakistan has held that without discharging the initial onus the beneficiary is not required to prove his case.
17. In "Shehwaar and 2 others v. Muhammad Riaz and others" (2018 YLR 1938) it has been held by a learned Division Bench of this Court that where a plaintiff failed to plead fraud in accordance with Order VI, Rule 4 CPC and failed to complement his plaint by means of production of evidence and also failed in impleading necessary parties contributory to such fraud the suit shall be dismissed because presumption of correctness is attached to a public document.
18. That, likewise, in "Mukhtar Ahmed and 4 others v. Taj Din and others" (2012 MLD 873), it has unequivocally been ruled that if any party takes the plea of fraud then he is bound to prove the same through solid evidence.
19. It has also been held in "Mst. Bhano and another v. Mian A.M. Saeed and others" (1969 SCMR 299) that when fraud is alleged by a plaintiff it becomes his duty to prove the same and generalized allegations or for that matter bald assertions without evidence cannot shift the initial onus.
20. In "Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs." (2010 SCMR 1066), it has been held at page 1070 that where fraud or misrepresentation was alleged by a plaintiff then the onus would lie on the plaintiff to substantiate such grounds and short of such onus being discharged it would never shift to the respondent.
21. In view of what has been noted above, it is essential that in a case where fraud is canvased as the pivotal point the party claiming fraud should set out the facts in full and give essential particulars instead of making general allegations. This is a legal requirement enshrined in Order VI, Rule 4 of the Code of Civil Procedure. It is an elementary principle of pleadings that where allegations of fraud, collusion or misrepresentation are attributed, necessary particulars and details in that context have to be specifically narrated in the pleadings and bald or vague statements cannot make any headway. Moreover, since details and ingredients of fraud allegedly committed by respondents have not been given no amount of evidence can fill in this lacuna. In this connection the law laid down in "Taaj Muhammad v. Munawar Jaan" (2009 SCMR 598) is relied upon.
22. The petitioner alleged fraud and he had to prove the same through cogent, tangible and confidence inspiring evidence. In cases of fraud the initial burden is upon the person who alleges fraud and in the matter before this Court the pleadings as also lack of evidence does not suffice to shift the burden upon the beneficiaries.
23. It may be recounted here that since the petitioner failed to prove any fraud, deception or connivance regarding the gift mutation in question the subsequent inheritance mutation on the basis thereof could not have been declared to be of no legal effect since the same emanates out of the gift mutation in question.
24. Learned counsel for the petitioner has not been able to canvass any ground which could convince this Court to interfere with the well-reasoned concurrent findings recorded by the two courts below. There is no illegality, irrationality, perversity or excess of jurisdiction involved in the matter. The evidence produced by the parties has been read well and, hence, there is no merit in this civil revision which hereby fails and is accordingly dismissed.