' In this revision petition filed by the plaintiffs the judgment and decree, dated 19-12-1981 passed by the learned District Judge, Gujrat through which he accepted the appeal of respondent Bashir Ahmad against judgment and decree dated 9-9-1980 by which the suit filed by the petitioners was decreed by the learned trial Court, has been brought under challenge.
2. The facts forming the background of this case relevant for disposal of this revision petition shortly stated are that Sultan All deceased husband of petitioner No,1 and father of petitioners 2 and 3 was the owner of land measuring 193 Kanals 4 Marlas whereas Allah Dad (not party in these proceedings) was owner of land measuring 64 Kanals 8 Malras in Village Humra Kalan, Tehsil Kharian. It may be observed here that Allah Dad is the father-in-law of respondent No,1 and Mst.
Sardar Begum respondent No,3 is the wire of this Allah Dad i.e. mother-in-law of the said respondent. It may also be stated that Sardar Begum respondent No,3 is the sister of Sultan All deceased.
3. Respondent No,1 filed a suit for declaration that he had become owner of the said land in dispute owned by both Allah Dad and Sultan All by way of adverse possession as the same had been gifted to him by both of them more than 12 years before the date of filing of the said suit. Sultan All did not enter appearance in the said suit therefore, he was proceeded against ex parte and ex parte decree was passed against him and Allah Dad and in favour of respondent No,1 in the said suit on 29-7-1974. The plaint of the said suit filed by respondent No,1 was produced in the evidence in this case as Exh.P.4. In pursuance of the said ex parte decree two mutations bearing Nos.3373 and 3374 were sanctioned by the Revenue Officer on 9-8-1974, in favour of respondent No,1.
4. Sultan All predecessor-in-interest of the petitioners and respondent No,3 Sardar Begum on 19-8- 1975 filed a suit for declaration that he was the owner of the land and the ex parte decree aforementioned was obtained through collusion, fraud, misrepresentation and without service of notice/summons on him. The suit was contested by respondent No,1 who filed the written statement and all the allegations made in the plaint by Sultan All were denied. The controversies arising from the pleadings of the parties were reflected by the learned trial Court in the following issues framed in the suit:--
(1) Whether the suit is time-barred? O.P.D.
(2) Whether the suit is not maintainable?
(3) Whether the discription is incorrect, if so with what effect? O.P.D.
(4) Whether the suit is frivolous and vexatious? O.P.D.
(5) Whether the plaintiffs are owners in possession of the land? O.P.P.
(6) Whether the impugned decree, dated 9-7-1974 is obtained by defendant No,1 by misrepresentation and fraud and as such is illegal and inoperative on the rights of the plaintiffs?
O.P.P.
(7) Relief.
5. Both the parties led oral evidence and also produced documentary evidence. Learned trial Court held under issues Nos.1 and 2 that the suit was not barred by time and the same was also maintainable. It was held that the remedy under Order 9, Rule 13, C.P.C. for getting ex parte decree set aside was not the only remedy and a separate suit could also be filed where the question of fraud and misrepresentation had been raised for challenging the legality of such decree. Under issue No,3 it was observed that the respondent No,1 did not produce any evidence to establish that the description of the land was incorrect. It was held on the basis of documentary evidence such as copy of record of rights Exh.P.1. and Khasra Girdawari Exh.P.2 that the description of land was correctly given in the plaint. Issues 5 and 6 were answered against respondent No,1. It was held that the ex parte decree dated 9-7-1974 was obtained through misrepresentation and fraud, service of summons on Sultan ' All was not proved and that the petitioners were the owners of land being heirs of Sultan All who was the owner of the land at the time of his death because respondent No,1 had failed to establish that he made gift of this land in his favour. Under issue No,4 it was observed that since the suit was being decreed therefore the said issue did not arise. As a consequence of the findings recorded by learned trial Court the suit of the petitioners was decreed according to their prayer in the plaint with costs and issue No,7 answered accordingly.
6. Respondent No,1 filed appeal before the learned lower appellate Court which has been accepted through the impugned judgment and decree dated 19-12-1981. It has been held that the service of summons in the previous suit in which ex parte decree was passed against Sultan Ali was established through evidence of Nawaz D.W.3 and Ghulam Rasool D.W.2. It was also observed that from the application moved by the petitioners before the learned trial Court in which they alleged that respondent No,1 had taken over possession forcibly it was proved that he was in possession of the same and that no fraud or misrepresentation was established in obtaining ex parte decree therefore, findings on issue No,6 were reversed. Since the ex parte decree granted to respondent No,1 in the previous suit was upheld and maintained therefore, the suit of the petitioners was dismissed because as per finding of the learned lower appellate Court they could not question the validity or factum of gift on merits in this suit unless the hurdle of the ex parte decree was in the first instance removed because the existence of said ex parte would operate as res judicata as regards the question of existence and validity of gift of land as alleged by respondent No,1. It was also remarked that required by Order VI, Rule 4, C.P.C. the petitioners failed to state necessary particulars with dates and items regarding the plea of fraud and misrepresentation.
7. Since the learned lower appellate Court held that provisions of Order VI, Rule 4, C.P.C. were not satisfied for the failure of the appellants to give particulars of fraud especially with dates and items therefore, it is necessary to deal with the said aspect of the case in the first instance. Order VI, Rule 4, C.P.C. is reproduced below in extenso for facility of ready reference: "Order VI, Rule 4, C.P.C. Particulars to be given where necessary.---In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
8. A bare reading of this provision of law shows that what it requires is only this much that particulars of fraud alleged in the plaint by the plaintiff were to he given only where it was so necessary and the same is the case regarding the requirement of stating the dates and items.
Para. 2 of the plaint in which fraud etc. has been pleaded is as follows:-- {{URDU TEXT}} Misrepresentation This para. read with the following sub-paras. "{{URDU TEXT}}and paragraphs 3 and 4 of the plaint if taken together, it is clear that it has been specifically pleaded that respondent No,1 filed a false and baseless suit and got an ex parte decree based on misrepresentation without service of notice on him from a Civil Court at Kharian on 9-7-1974 and this he did in collusion with defendant No,2 who was the real uncle and father-in-law of respondent No,1 on the basis of which he got two mutations attested in collusion with the revenue staff which were ineffective against the rights of the plaintiffs.
In the presence of these facts pleaded in the plaint, I wonder as to how the learned lower appellate Court came to the conclusion that the same did not satisfy the requirements of Order VI, Rule 4, C.P.C. because full particulars of fraud had been clearly given, as in my opinion there was no necessity of giving any further information in the pleadings because the evidence which was to be led in support of the facts pleaded in the plaint is not required to be given in the plaint.
9. The main question which requires consideration in this revision petition was as to whether the petitioners succeeded in establishing that the respondent No,1 committed fraud and is guilty of misrepresentation in getting ex part decree dated 9-7-1974 from the Civil Court in the previous suit filed by him and the two mutations sanctioned on the basis of the same also suffered from the same legal infirmity. In order to decide these questions it is necessary to ascertain as to what are the meanings of fraud and misrepresentation. Fraud has been defined in section 17 of the Contract Act as under:-- "Section 17. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance or by his agent, with inent to deceive another party thereto or his agent, or to induce him to enter into the contract:-- The suggestion as a fact, of that which is not true by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission. as the law specially declares to be fraudulent.
Explanation.--- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."
' It may be mentioned here that this definition is not exhaustive.
10. The expression 'misrepresentation' has been defined in section 18 of the Contract Act as follows:- - Section 18. "Misrepresentation" means and includes--
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement."
' This defamation is also not exhaustive.
11. It is distinctly clear from section 17(5) of the Contract Act, that any act or omission as the law specially declares to be fraudulent would fall within the ambit of expression 'fraud', therefore, reference to the defmition of the term 'fraudulently' given in section 25 of P.P.C. to derive guidance in this regard can justifiably be made. The expression fraudulently has been defined in this section as under:-- "Section 25 of P.P.C. "Fraudulently".---A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
' From the bare reading of all these provisions of law together, it is manifest, that in answering the question whether in a given case a person was guilty of fraud or misrepresentation his acts and omissions are the determining factor to ascertain his intention as to the purposes which he wanted to accomplish through such acts and omissions because fraud is something which has direct nexus with the state of mind of the person concerned and acts and omissions of such person are always taken as expression of his intention.
12. Keeping in view this broad principle in mind it has to be decided whether in this case from the material brought on the record in evidence it has been proved that the respondent No,1 had the intention to act fraudulently while filing the suit in which ex parte decree was obtained and he had any dishonest intention to cause wrongful gain to himself or wrongful loss to other person. It has come on record of this case and this fact is an admitted one that the land in dispute was owned by Sultan All deceased. It has also been established through documentary evidence such as copy of records-of-rights Exh.P.1 and copy of Khasra Girdawari Exh.P.2 that entries regarding ownership of this land in the Revenue Record had throughout been in favour of Sultan All who had been recorded as owner of the same and that the tenants were cultivating the land under him.
According to evidence of respondent No,1 when he appeared as his own witness in this case, Sultan All was residing with him which fact was also stated in the plaint (Exh.P.4) of the suit in which ex parte decree was passed that he had been residing with him. He also stated in his evidence that when he filed the said suit and notices were issued, Sultan All told him that he had been served. He has also gone to the extent of stating that it was Sultan All who asked him to file the said suit as his daughters were agitating against the alleged gift. In spite of this supporting attitude of Sultan All as alleged by respondent No,1 it is, clear that he had not been able to manage his appearance before the Revenue Officer to get a mutation entered and sanctioned by him in the Revenue Record to get his name entered in the revenue record. From this it can safely be inferred that the truth was otherwise and Sultan All was not ready to admit that he had made the gift and was ready to make statement before the Revenue Officer regarding the gift allegedly made in favour of respondent No,1. In order to get the entries in the record-of- rights changed in favour of respondent No,1 from Sultan All it was necessary for him to create some evidence on the basis of which the said entries could be got changed in his favour in order to grab the land of Sultan Ali. Under the Land Revenue Act, one of the grounds on the basis of which entries in the record-of-rights could easily be got changed is the decree of the Civil Court as the Revenue Officer could not decline to give effect to it in the Revenue Record.
13. In this background if the conduct of respondent No,1 is adjudged it is manifest that the very act of the filing of the suit by him in which the impugned ex parte decree was passed was with the intention to create evidence and the basis for getting the entries changed in the Revenue Record from the name of Sultan All in his own favour. Since Sultan All as observed above, was not supporting him therefore, it was his need that he should not appear in the suit because he knew that he would not support him and the very scheme of filing the suit would frustrate. In order to give strength to his case he colluded with his own real uncle namely Allah Dad who is his father-in-law and was shown to have also gifted his share of the land alongwith Sultan All as alleged because Allah Dad would support him so that it could be used as piece of evidenc to get support for his plea that Sultan All had also gifted his share of land to him. Mst. Sardar Begum respondent No, 3 who is the real sister of Sultan Ali is admittedly the mother-in-law of respondent No,
1. The evil design of respondent No, 1 is further manifested in the plaint of the said suit a copy of which was produced in evidence as Exh. P. 4, when he claimed that the land by Sultan All was gifted since more than 12 years back and a declaration was sought that he had become owner of the same by way of adverse possession for he was preparing himself to prosecute the suit if Sultan All happened to appear and defend the suit and his efforts to get ex parte decree had frustrated. As I have already held it was fraudulent intention with which the said suit was filed by respondent No, 1 which intention is clearly established from the facts and circumstances of this case as discussed above and he was acting dishonestly to grab the land of Sultan All by all means.
14. In this background I am satisfied that such a person having filed the suit with that intention would see that the defendants should not appear in the Court so that he may have free hand to accomplish his evil designs. He therefore, was interested to see that Sultan All should not come to know about the institution of the suit. The process-server who was examined as witness in this case by respondent No, 1 to establish that Sultan All was served, admitted that he did not know him personally. D.W. 3 Muhammad Nawaz was examined by him who stated that he identified Sultan All when process-server came to effect his service. Surprisingly this Nawaz according to the evidence was also the witness of the incident of alleged gift by Sultan Ali. Respondent No, 1 who is present in Court in person when questioned by me admitted that niece of this witness had been married to his son Liaqat. It is also very strange that the same person is available at both the occasions, i.e. at the time of making the alleged gift which was allegedly made more than 12 years before and at the time of service of summons. D.W.2 who is Branch Post Master who allegedly delivered the registered post acknowledgement due envelope. to Sultan All and allegedly got his thumb- impression on the A.D. which has also been produced in the evidence stated that the same was delivered to him on 3-6-1974. His evidence appears to be of interested person because while stating the exact date of which the post was delivered he was attempting to favour respondent No, 1 to give strength to his case whereas ordinarily while acting in his official capacity in routine he would not have remembered the exact date after so many years on which a particular postal envelope was delivered to the addressee. Apart from this as observed above, if Sultan All had asked respondent No, 1 to file the suit and he was supporting the gift there is no good reason why not to produce him before the Court and get his statement recorded. Since Sultan All in the present suit had denied his service in the previous suit in which impugned ex parte decree was passed and if evidence in the form of acknowledgement due receipt containing his thumb-impression as alleged was available, it was necessary for respondent No, 1 to get the same compared with his admitted thumb-impressions through an expert witness which was in this case the best evidence which he did not produce. Learned trial Court rightly held that evidence of process-server as also of D.W. 2 and D.W. 3 was of not creditworthy which finding, I endorse after examining the evidence with the assistance of the learned counsel for the parties. These two witneses colluded with respondent No, 1 in fabricating false evident regarding service of summons.
15. It is in the evidence of respondent No, 1 that after the institution of the present suit he asked Sultan All if he had filed the suit he denied having done so. If that was so, there is nothing on the record as to what was the impediment in the way of respondent No, 1 to cause the appearance of Sultan All immediately thereafter before the Court and get his statement to that effect recorded.
16. Learned counsel for the respondent No, 1 submitted that mere ground of non-service of summon in the previous suit in which ex parte decree was passed could not be a ground for maintaining the suit for setting aside ea parte decree. This argument in the facts and circumstance of this case has no substance. In this case, it has been proved beyond reasonable doubts that the respondent No, 1 acted fraudulently from the very start and his very act of filing of the previous suit was based on ulterior motive and evil designs to grab the property of Sultan All and to create evidence of gift. All the circumstnces when taken together furnished strong evidence to establish that the said decree was obtained through fraud, misrepresentation and Sultan All was never made aware of the pendency of the said suit as such the two mutations based on the said ex parte decree were also of no legal effect on the rights of Sultan Ali.
17. Learned lower appellate Court has taken note of an application made on behalf of the petitioners on 26-5-1979 in which they stated that respondent No, 1 took forcibly the possession of the land during the pendency of the suit in order to hold that possession was with respondent No, 1 and altogether ignored that any change in the position during the pendency of the suit could not be used against the plaintiff to hold that the suit was not maintainable or that possession was with respondent No, 1 under the gift.
18. The findings recorded by the learned lower appellate Court on issue No, 6 are based on misreading, misconstruction and non-leading of material piece of evidence, circumstances of the case which are apparent on the face of the record therefore the said findings of the learned lower appellate Court are set aside and that of the learned trial Court upheld.
19. After having held that ex parte decree passed in favour of respondent No, 1 in the previous suit was result of fraud and set aside the further question which remains to be decided was whether the petitioners were the owners of land. Since findings on issue No, 6 have been given in favour of the petitioners therefore under issue No, 5 respondent No, 1 could succeed only if he had proved that petitioners did not inherit the property because the same had been gifted to him by Sultan All who as a consequence thereof was not owner of the land at the time of his death.
20. As I have already' held that no documentary evidence regarding factum of gift such like entries in the Jamabandi, Roznamcha Waqiati or Khasra Gidawari has been produced. The respondent No, 1 merely relies upon oral evidence which I have gone through and find that the same is highly discrepant and worthy of no credit. The findings of learned trial Court on issue No, 5 are based on correct, careful and elaborate appraisal of evidence which I too endorse after thoroughly scrutinizing the same. The entries in the Jamabandi Exh. P1 and Khasra Girdawari Exh. P. 2 clearly show that Sultan All had throughout been recorded as owner of land and the persons in cultivating possession of the same were shown as his tenants. Sultan All deceased was the owner of land at the time of his death therefore it was to be inherited by his legal heirs who are petitioners and respondent No, 3 i.e. his real sister.
21. Learned counsel for respondent No, 1 argued that since Allah Dad and Sardar Begum real sister of Sultan All were supporting the plea of gift of land by Sultan Ali in favour of respondent No, 1, therefore, this should be considered as evidence against the petitioners also. This argument has not impressed me. Sardar Begum is the mother-in-law of respondent No, 1 and Allah Dad is his father-in-law therefore they have reasons to support respondent No, 1.
22. The learned trial Court decreed the suit as a whole. Respondent No, 3 Sardar Begum according to Muhammadan Law inherited the land of Sultan All to the extent of 3/8th share as residuary whereas the present petitioners as widow and daughters jointly inherited 5/8th share therefore, the suit could have been decreed to that extent only.
23. For the foregoing reasons the learned lower appellate Court has acted with material irregularity and illegality in passing the impugned judgment. This revision petition is accepted. The said judgment and decree passed by learned lower appellate Court dated 19-12-1981 is hereby set aside. The suit of the petitioners is decreed to the extent of 5/8th share in the land left by Sultan All and since during the pendency of the suit the respondent No, 1 took possession of land forcibly as there is no evidence such as entries in the Revenue Record that respondent No, 1 was ever in possession of the land as such they are also granted decree for joint possession of land to the extent of 5/8th share with respondents. The decree passed by learned trial Court is restored with the above modifications. The parties are left to bear their own costs. accordingly.