1. ' Dispute in the civil revision brought by the plaintiffs in the suit for declaration of exclusive ownership rights in respect of a residential house situated at Lahore was against a concurrent judgment of the lower appellate Court. The suit was dismissed by the trial Court on 14-6-1989.
2. Appeal preferred from decree failed on 15-1-1991 in the lower appellate Court.
3. ' Feroze Din was a displaced person from city of Amritsar in East Punjab of undivided India. He owned a residential house in Bazar Tokrian of Amritsar. He had married twice. His first wife was Mst.
4. Saira Begum. He had two daughters from her, namely, Mst. Athar Jabeen and Mst. Mussarat Yousaf.
5. After the demise of his first wife, he contracted marriage with Mst. Umatul Begum in the year 1949. A daughter was born to them from this marriage. Her name was Mst. Akhtar Nargis. Feroze Din had no male issue from both of his marriages.
6. ' Upon partition of India, Feroze Din shifted to Pakistan as a refugee. On 12-11-1955, he submitted a claim for verification in respect of the house abandoned by him. His claim was verified for Rs,23,040 by the Claim Officer, Lahore, on 12-8-1957. He preferred an appeal against the verification order for enhancement of his claim to Rs,57,100. His appeal was allowed on 3-2-1958, by Deputy Claims Commissioner, Lahore.
7. ' On 28-4-1959, he submitted Form C.H. For transfer of the evacuee residential house No, SI-5/S-12, Guru Arjan Nagar, Lahore. The house was in his possession. He was found entitled to its transfer by the Deputy Settlement Commissioner. Order determining his entitlement to the transfer of the house was not put in evidence. However, Provisional Transfer Order was issued to him on 21-10- 1959, by the Deputy Settlement Commissioner, Lahore.
8. ' Feroze Din died on 6-10-1967. He was survived by three daughters. Plaintiffs were his two daughters from his first wife and defendant No,2, namely, Mst. Akhtar Nargis was his daughter from his second wife.
9. ' On 19-4-1974, plaintiffs applied to the Deputy Settlement Commissioner, Circle-Ill, Lahore for their substitution in place of Feroze Din on the Settlement record to obtain a Transfer Order of the house in their favour. It was averred in the application that the house was transferred by the Deputy Settlement Commissioner to Feroze Din and a Provisional Transfer Order was issued to him; he died on 6-10-1967 and was succeeded by them only as his lawful heirs. Upon these averments, it was requested that a Transfer Order may be issued in their favour. The application was supported by their sworn affidavit. They recorded their statements before the Deputy Settlement Commissioner, on 27-5-1974, wherein they deposed that Feroze Din was survived by them as his only legal heirs.
10. Name of Mst. Akhtar Nargis, as an heir of Feroze Din, was neither disclosed in the application nor in the evidence recorded by the Deputy Settlement Commissioner, Lahore. Therefore, Mst. Akhtar Nargis had no intimation of the proceedings taken on the application or the order passed on it by the Deputy Settlement Commissioner. No notice was issued in the proceedings to Mst. Akhtar Nargis. Deputy Settlement Commissioner allowed the application for substitution of legal heirs and made an order for permanent transfer of the house to the two daughters of Feroze Din from Mst.
11. Saira Begum. This order was also not put in evidence by the plaintiffs. Therefore, its contents were not ascertainable from the present record. Transfer Order respecting the house in question was, however, issued to the plaintiffs on 28-6-1974. It was on the file of the trial Court. It was worthwhile to observe that the transfer price for the house was paid by or adjusted from the compensation book held by Feroze Din in his lifetime.
12. ' Upon gaining knowledge of the transfer of the house in favour of her two consanguine sisters, Mst.
13. Akhtar Nargis submitted an application to the Deputy Settlement Commissioner/Deputy Administrator Circle-III, Farid Kot House, Lahore, on 5-6-1980, for inclusion of her name in the Transfer Document. Her sister resisted a share in the house to her and questioned jurisdiction of the Deputy Settlement Commissioner to add her name in the Transfer Order. Upon inquiry, the Deputy Settlement Commissioner found that Mst. Akhtar Nargis was fraudulently omitted from the legal representatives of Feroze Din at the instance of the plaintiffs, namely, Mst. Akhtar Jabeen and Mst.
14. Mussarat Yousaf and, consequently, ordered for addition of her name in the Transfer Order, on 27- 9-1981. A few days before the making of the above order by the Deputy Settlement Commissioner, on 24-9-1981, the plaintiffs had instituted a civil suit against Deputy Settlement Commissioner, Circle-III, Farid Kot House, Lahore and Mst. Akhtar Nargis for a declaration and an injunction for claiming that the Deputy Settlement Commissioner had no jurisdiction to initiate proceedings in respect of the Transfer of property after the repeal of Evacuee Laws for affecting their rights in the property transferred to them. On 18-10-1981, the suit was withdrawn from the Civil Court.
15. ' Thereafter, aggrieved of the addition of the name of Mst. Akhtar Nargis in the Transfer Order by the order of the Deputy Settlement Commissioner, plaintiffs instituted a fresh suit against the same defendants for a similar relief to the effect that they were exclusive owners of the house transferred to them on 27-6-1974; Mst. Akhtar Nargis had no share in it and the Deputy Settlement Commissioner was possessed of no jurisdiction to add her name in the Transfer Order, after repeal of Evacuee Laws by Act XIV of 1975 with effect from 1-7-1974. It was averred that the house in India was gifted by Feroze Din to Ma. Saira Begum in the year 1943, and, thereafter, she was its owner and the claim for verification respecting it submitted by Feroze Din was filed on her behalf. Mst. Akhtar Nargis contested the suit. She was defendant No,2 in the suit. She raised number of preliminary objections to the suit, such as that the Civil Court had no jurisdiction to entertain the suit; the suit was barred by Order XXIII, rule 2 of Civil P.C.; the value of the suit for purposes of court-fee and jurisdiction was incorrectly assessed and the same ought to have been computed on the market value of the house; the suit was defective for not filing of the list of legal representatives of the plaintiffs; description of the property given in the plaint was incorrect; plaintiffs were estopped to bring the suit; plaintiffs had not approached the Court with clean hands; they had no cause of action to file the suit against the contesting defendant and the plaint merited rejection under Order VII, rule 11 of Civil P.C. And that the defendant was entitled to compensatory costs under section 35- A of Civil P.C. On merits, it was averred that the abandoned house was owned by Feroze Din; it was not gifted by him to Mst. Saira Begum; the claim for verification submitted by Feroze Din was in his own right; the disputed house was transferred to him and by a fraudulent suppression of her name in the application submitted for substitution of legal representatives, the transfer of the house was managed in favour of the plaintiffs. In nutshell, her defence was that as a daughter of Feroze Din, she was entitled to share ownership of the house with the plaintiffs and the Deputy Settlement Commissioner/Deputy Administrator was competent to correct the error in issuance of a Transfer Order on the basis of fraud committed upon him.
16. ' On 5-4-1982, appropriate issues were settled in the trial Court. They have been given in the impugned judgments and need not be reproduced. After settlement of issues, parties gave their oral evidence and produced number of documents in support of their respective versions. Upon an exhaustive and critical analysis of the evidence, the trial Court found against the plaintiffs and dismissed their suit on 14-6-1989. It was found that Feroze Din owned the house abandoned by him in India; gift of it by him to Mst. Saira Begum was not proved; claim for verification in respect of the house submitted by Feroze Din was in his own right; the house in dispute was transferred to him by the Settlement Department; plaintiffs had omitted the name of Mst. Akhtar Nargis in the application for substitution of legal representatives by fraudulently suppressing it and managed the transfer of the house in their favour on account of it. It was further held that on account of fraud and misrepresentation committed, the Deputy Settlement Commissioner/Deputy ioner/Deputy Administrator had the jurisdiction to correct his record and to undo the illegal act produced by fraud practised upon him. In appeal preferred by the plaintiffs, these conclusions were affirmed and the judgment was upheld. Result of it was that Mst. Akhtar Nargis was found entitled to a 1/3rd share of the house as daughter of late Feroze Din who was held the true transferee of the house.
17. ' Two points were raised in the civil revision. One related to jurisdiction of the Deputy Settlement Commissioner/Deputy Administrator to correct the error and add the name of Mst. Akhtar Nargis as a co-transferee in the Transfer Order and the other was as to who was the transferee of the house i,e, Feroze Din or Mst. Saira Begum. Decision on the second point was linked with the question of gift of the house in India by Feroze Din to his wife Mst. Saira Begum. As said above, the abandoned house was situated in Amritsar city.
18. ' Exh.P.1 is Schedule VI for claiming rent of the property for which a claim was submitted. Against the column of "Applicant's Name", it contained the name of Ch. Feroze Din on behalf of her wife, late Mst. Saira Begum. Schedule VI did not bear the date of its filing. Copy of the claim form submitted for verification Exh. D.1, dated 19-10-1955 (presented on 22-11-1955), against column of "Name of Applicant", initially gave the same of Ch. Feroze Din for his deceased wife Mst. Saira Begum but then the words for his deceased wife Mst. Saira Begum were deleted from it. Similar writing existing at the bottom of the claim form was also deleted leaving Ch. Feroze Din alone in the field. Reference to the gift of the abandoned house was not made in the claim form. In his statement recorded by the Claims Officer, Feroze Din made a statement (Copy Exh.P3) that he had gifted his house to his wife Mst. Saira Begum. This statement was made by him on 17-5-1957. The Claims Officer made a reference to his statement in his order verifying the claim. However, the claim was verified in the name of Ch. Feroze Din. In his subsequent statement recorded on 17-10-1959 (Copy Exh.D.4), in connection with the proceedings taken for transfer of the house, Feroze Din had deposed that he was the sole claimant of the house and requested for its transfer to him against his verified claim.
19. In the Form C.H. (Exh.D.2) submitted on 28-4-1959, Feroze Din applied for transfer of the house on evaluation basis in his own name Provisional Transfer Order was issued to Feroze Din, on 21-11-1959.
20. Order determining his entitlement for transfer was not tendered in evidence by either side. It is not in dispute that the transfer price of the house was either paid by him or was adjusted from the compensation book. In their application Exh.D.5 presented through a counsel, plaintiffs averred that the house was transferred to Feroze Din and Provisional Transfer Order was issued in his favour and upon his demise, on 6-10-1967, they were his only successors. Similar statements were made by them before the Deputy Settlement Commissioner on 27-5-1974. Gift of the abandoned house was neither mentioned in the application for substitution of legal representatives nor in the statements made before the Deputy Settlement Commissioner for claiming transfer of the house. Application for appointment of guardian for minor daughter did not materially advance the case regarding gift of the aba,... Ahmed house by Feroze Din in favour of Mst. Saira Begum. Also, in the earlier suit for declaration and injunction instituted on 26-9-1981, Exh.D.10, plaintiffs did not aver the gift of the abandoned house in favour of their mother Mst. Saira Begum. Original or copy of the compensation book held by Feroze Din was also not produced in evidence. It was in the statement of Mst.
21. Mussarat Yousaf P.W.1 that the gift was made by a registered deed and that the gift deed was in existence with them till after partition but it too was not produced as a proof of it. Mst. Umatul Begum, the second wife of Feroze Din died in the year 1950 and Mst. Akhtar Nargis was brought up by her maternal grandmother. From an overall review of the record, it was clear that the gift of the house in India by Feroze Din to Mst. Saira Begum was not established. The claim for verification in respect of the abandoned house was filed by Feroze Din in his own right and it was verified in his name. The house in dispute was in possession of Feroze Din. He had applied for its transfer in his name. The Settlement Authorities found him entitled to its transfer and issued a Provisional Transfer Order to him. The price of the house was either paid by or adjusted from him. Except for a formal issuance of a Permanent Transfer Deed, the house in dispute, for all intents and purposes, was owned by Feroze Din. But for his demise, the Transfer Order must have been issued to him. He was clothed with full rights of ownership in it by making full payment of the transfer price for it. Plaintiffs fraudulently managed exclusion of Mst. Akhtar Nargis from the Transfer Order. It was on the basis of a false averment to the effect that except for the plaintiffs, Feroze Din had no other heir.
22. Preponderance of judicial view was in favour of the power existing in every Court, Tribunal or Authority to recall an order obtained from it by fraud. It is on the basis of a well-settled principle that fraud vitiated the most solemn proceedings and no party could be permitted to reap and retain the benefit of its fraud. Fraud could not be sanctified or protected by any Court, Tribunal or the Authority. They have inherent jurisdiction to review their record to undo the acts of fraud. In the instant case, upon discovery of true facts, the Chief Settlement Commissioner had, by a letter DSC/A/2316, dated 10-10-1978, empowered the Notified Officer to look into the matter for correcting the record. In my opinion, the Deputy Settlement Commissioner had jurisdiction to look into the act of fraud for removal of its traces from record for the purpose of proper documentation of the Transfer documents. Further, an illegal order of the Deputy Settlement Commissioner passed in absence of Mst. Akhtar Nargis did not bind her to preclude the Civil Court for judging the respective shares of the parties in the evacuee house transferred to Feroze Din. Even if the house in question was found to have been transferred to Mst. Saira Begum, which fact was not proved on record, Feroze Din was entitled to a share in it and Mst. Akhtar Nargis, as one of his surviving daughters, was entitled to inherit her share from him. Also, the petition by Mst. Akhtar Nargis addressed to the Deputy Settlement Commissioner for inclusion of her name in the Transfer Order upon discovery of true facts could not be found barred by limitation.
23. ' For the foregoing reasons, I hold that rights of the parties have been rightly adjusted in the lower Courts and justice has been done to them, in terms of merits of the case. Therefore, it may not be apposite to interfere in revisional jurisdiction by this Court. Consequently, civil revision is dismissed with costs.
24. ' Original records be returned.