' In this revision petition judgment dated 19-3-1989 passed by learned lower appellate Court through which the appeal filed by the respondents againt judgment and decree dated 17-1-1987 passed by the trial Court through which the suit filed by the petitioners was decreed to the extent of land measuring 134 Kanals was accepted, has been challenged.
2. The land measuring 234 Kanals 3 Marlas as owned by Sardar Said Zaman Khan who died issueless leaving behind Mst. Raza Begum his widow and the respondents who are her nephews.
During the lifetime of Sardar Said Zaman Khan deceased the original owner, Mst. Raza Begum his wife filed a suit for declaration that she was owner of land measuring 200 Kanals out of the land owned by Sardar Said Zaman Khan which was gifted to her by him. In the said suit according to the petitioners Sardar Said Zaman Khan appeared through his counsel and conceded the decree and a consent decree was passed by the Civil Court on 22-3-1973. Begum Raza Begum got Mutation No,73 entered in pursuance of the said decree by the Patwari in the Revenue Record on 27-4-1973.
The Revenue Officer however declined to sanction the said mutation through order dated 22-11- 1973 on the ground that the same was violative of the Land Reform Laws because the holding of Sardar Said Zaman Khan was to be reduced to less than subsistance holding as he was to be left with land measuring 34 Kanals only. Feeling aggrieved petitioners filed the suit on 4-7-1977 out of which this revision petition has arisen. This suit was contested by the respondents. The trial Court through judgment and decree dated 17-1-1987 decreed the suit to the extent of land measuring 134 Kanals 3 Marlas by holding that though the consent decree related to land measuring 200 Kanals but the same was valid to the extent of land measuring 134 Kanals 3 Marlas as the remaining land of Sardar Said Zaman Khan would not be reduced to less than subsistence holding. The view taken was that the consent decree based on gift though was for land measuring 200 Kanals but the same was valid up to the land measuring 134 Kanals 3 Marlas.
3. In appeal filed by the respondents the learned lower Appellate Court held that the factum of gift by Sardar Said Zaman Khan the original owner in favour of Mst. Raza Begum his wife was not established for the consent decree was obtained through collusion and fraud and Sardar Said Zaman Khan did not acknowledge the gift in the said suit. It was also observed that the gift as a whole was ineffective. The appeal was accepted through judgment dated 19-3-1989 and suit filed by the petitioner dismissed which has been challenged in this revision petition.
4. Learned counsel for the petitioners on the strength of judgment reported as The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others (PLD 1975 SC 331) argued that the validity and correctness of consent decree passed in the previous suit between Mst. Raza Begum and Sardar Said Zaman Khan could not have been challenged in this suit by collateral attack whereas the respondents were required to challenge the same by directly through separate proceedings either by way of suit, appeal or revision. I am afraid, the argument in my opinion is plainly unsound as learned counsel lost sight of Article 58 of Qanun-e-Shahadat, 1984 which provides that in any suit if a judgment or decree was produced in evidence in proof of a claim or right by one party the other party has a right to establish that the said judgment and decree was obtained collusively or through fraud therefore the argument is repelled.
5. I have gone through the evidence produced in this case by the petitioners in order to ascertain whether the said consent decree dated 22-3-1973 could be held to have not been obtained collusively or fraudulently.
6. The certified copy of plaint of the said suit in which the said consent decree was passed was produced in evidence as Exh. P.15. In this plaint an allegation was made by Mst. Raza Begum that Sardar Said Zaman Khan after gifting the land to her tried to forcibly took possession and in spite of his promise to get the same mutated in her name did not do so. It was also pleaded that the land at the relevant time was in the possession of the tenants who were cultivating it and they were intimated by Sardar Said Zaman Khan to pay Batai to her in future. From this it is distinctly clear that according to her own showing Sardar Said Zaman Khan attempted to forcibly take possession of the land, the land was with the tenants and he did not take any steps to get the same mutated in favour of the donee. The written statement in the said suit was filed through Rai Nasir, Advocate a copy of whose Vakalatnama was produced as Exh. P.2. The copy of written statment filed on behalf of Sardar Said Zaman Khan in the said suit was produced as Exh.P.16. Rai Nasir, Advocate got his statement recorded, a copy of which was produced as Exh.P1 in which he conceded the decree in favour of Mst. Raza Begum Jameel Akhtar who was Bhanja' of Mst. Raza Begum was examined as P.W.3 whereas Kanwar Saeed Ahmed Khan, Advocate was examined as P.W.1. From the statement of P.W.1 it is clear that he had friendly relations with the brother of Mst. Raza Begum. On the other hand, the respondents examined a record-keeper from the Agricultural Development Bank who proved that Sardar Said Zaman Khan obtained loan for fertilizers against the said land in the year 1974, showing the same to be in his ownership.
7. It is clear from this evidence that Sardar Said Zaman Khan did not appear personally before the said Court in which consent decree was passed on the statement of Rai Nasir, Advocate who was allegedly engaged by him. Learned counsel for both the parties admitted that Sardar Said Zaman Khan was a retired Deputy Commissioner. No evidence was produced that he ever made any attempt to get the factum of alleged gift recorded in. Roznamcha Waqiati. According to the allegations in Exh.P.15 the plaint of the said suit he did not acknowledge the factum of gift of the land as he had been treating himself to be the owner. No evidence was produced that the tenants who were cultivating the land were even asked to pay Batai to Mst. Raza Begum as alleged in Exh.
P.15. The evidence to that effect could easily be produced by examining the said tenants. Sardar Said Zaman Khan obtained loan in the year 1974 after the consent decree against the said land therefore, it has been established through cogent evidence beyond reasonable doubt that apart from being collusive the said consent decree was obtained fraudulently behind the back of Sardar Said Zaman Khan which inference can very safely be drawn in this case in view of the evidence produced on the record. There was no reason for Sardar Said Zaman Khan not to appear in the said suit to concede the decree. Mst. Raza Begum appears to have hatched conspiracy in obtaining the said consent decree fraudulently in collusion with the witnesses examined by her who had reason to side with her therefore, it was a fit case to hold that the said decree was fraudulent under Article 58 of the Qanun-e-Shahadat, 1984 and as such was ineffective as against the rights acquired by the parties as heirs of Sardar Said Zaman Khan as he continued to be the owner of the land till his death.
8. For the foregoing reasons, the judgment and decree dated 19-3-1989 passed by learned lower appellate Court does not suffer from any illegality or material irregularity on account of misreading, misconstruction or non-reading of material piece of evidence as such it is not a fit case for interference under section 115, C.P.C. The revision petition fails which is accordingly dismissed with no order as to costs.
Revision