' In this Constitutional petition legality of order dated 8-3-1993 passed by the learned Additional District Judge, Gujrat, through which revision petition filed by the petitioner against order dated 28- 10-1989 passed by the Court accepting the application of respondent No,1 under section 12(2), C.P.C. Was dismissed has been called in question.
2. The petitioner mid respondent No,1 is real brother and sister. The, land in dispute was owned by their father Muhammad Ramzan who at the time of his death in the year 1983 was about 84/85 years old. It has also come in evidence that he was suffering from disease for the laat 7/8 years prior to his death. It has also been admitted by the petitioner when appeared as witness that his father was residing with him.
3. On 24-3-1981 respondent No,1 filed a suit for declaration that his father had gifted the land in dispute to him and he was now denying the factum of the said gift. A written statement was filed on behalf of the deceased father on 23-5-1981 through Rai Zahid, Advocate alongwith a.
Compromise-deed according to which the deceased conceded that he -had gifted this land to respondent No,1 and it was on the instigation of some relatives that he raised dispute about the factum of the said gift which necessitated the filing of the suit by respondent No,1. It may be mentioned here that the deceased father did not appear in the said Court and instead his learned counsel namely Rai Zahid, Advocate made statement for decreeing the suit. A decree was passed in favour of respondent No,1 on 31-5-1981 based on the said compromise deed and statement made by Rai Zahid, Advocate which was challenged by respondent No,1 through application under section 12(2), C.P.C. _which has been accepted by the trial Court through order dated 28-10-1989.
The judgment and decree dated 31-5-1981 was held to have been obtained through misrepresentation, collusion and fraud. After setting aside the same the suit was restored and it was ordered to be tried on merits after bringing on record respondent No,1 as one of the legal representatives of deceased father.
4. Against this order a revision petition was filed by the petitioner before the learned Additional District Judge, Gujrat, which was dismissed. It was, however, held that in the facts and circumstances of this case there was no need to revive the suit in which the said decree was passed as the property shall be deemed to be owned by the deceased father at the time of his death and inherited by both the parties in accordance with Muhammadan Law.
5. Learned counsel for the petitioner argued that the concurrent finding through of the two Courts below that the decree dated 31-5-1981 was obtained gh misrepresentation, fraud and collusion is based on misreading and misconstruction of the record and the evidence produced by the parties especially the written statement filed by Hussain Bibi deceased, the mother of the parties in which she admitted that the deceased father had gifted the property to the petitioner.
6. I have examined the evidence. It is evident that the signatures of Rai Zahid Hussain, Advocate who was examined as R.W.3 are not present on the compromise-deed appended with the conceding written statement filed by him. This fact was admitted by him. There is no reason as to why the deceased father was not made to appear before the Court and make conceding statement. If he had already gifted the property as admitted by him in the written statement and compromise deed, there should have been no hindrance in causing his appearance by the petitioner before the Court to get his statement recorded and thumb-impression obtained. Arshad Mahmood was examined as R.W.2 who was witness of the compromise deed appended with the written statement but his evidence is also of no avail to the, petitioner. For the same reasons that the deceased father could be brought before the Court to make statement in support of the said conceding written statement and the compromise.
7. Muhammad Ali the present petitioner examined himself as R.W.1. His statement he did not state that the land was gifted to him at any point of time prior to the filing of the written statement in the suit alongwith the compromise. He categorically stated that his father gifted the land to him through compromise deed filed in the Court, therefore, the very incident of making of gift of land was relatable to the said compromise deed and had there been any gift prior thereto there is no explanation as to why the father did not appear before the Revenue Officer and made a statement that he had gifted the land to the petitioner to get mutation sanctioned. As observed above father was residing with the petitioner, therefore, he was in fiduciary relationship with him, as such, his non-appearance before the Court it can safely be inferred that neither the written statement nor the compromise deed was in fact executed by him and had he appeared before the Court he would not have supported the said documents. The written reply filed on behalf of Hussain Bibi deceased mother in the case does not advance the case of the petitioner in any manner because she must have supported the petitioner being his son and according to general thinking in our society ordinarily the people try to oust females from the inheritance and this is a case of an attempt of the same type.
8. After holding close scrutiny of evidence produced by the parties I am fully satisfied that the concurrent findings of facts recorded by both the Courts below that there was no proof of gift of the land and that the decree was obtained collusively through misrepresentation and fraud does not suffer from any legal infirmity. It may be mentioned here that this decree has been / obtained by the petitioner obviously to create evidence to get mutation sanctioned in the Revenue Record on the basis of the said decree, otherwise the father having not made any gift he otherwise could not mutation sanctioned.
9. Learned counsel for petitioner lastly argued that the direction of the learned lower appellate Court that after setting aside the decree the trial of the suit in which the same was passed is not necessary is not sustainable. He relied upon judgment reported as Province of Punjab through Collector, Multan and others v. Muhammad Rashid and others 1988 MLD 2560.
10. The facts of that case are different inasmuch as wherein a case rights were claimed on the basis of decrge itself which was found to have been obtained through fraud and misrepresentation there was no need to pass order for trial of the suit in which the same was passed. In this case the petitioner when appeared categorically stated that the father gifted this land to him through the disputed compromise deed itself and decree was passed on the basis of the said compromise deed which has been held to have been obtained through misrepresentation, therefore, there could be no question of trial of the suit to give opportunity to the petitioner to prove that the-father had gifted the land to the petitioner at any time prior thereto.
11. Learned counsel for the petitioner then argued that it was stated in the compromise deed by the father that respondent No,1 had been compensated by paying to her Rs,50,000, therefore, the gift was genuine.
12. I am afraid this entry in the compromise deed could be separated from the said deed as the deed itself was held to have been obtained through fraud and collusion. If the father had paid an amount of Rs,50,000 to the petitioner there should have been some documents to evidence it. It is apart from the fact that neither in the written reply filed by the petitioner to application under section 12(2), C.P.C. Nor in his statement as witness he stated that any amount was overpaid to respondent No,1 as stated in the compromise-deed.
13. The orders passed by the two Courts below and the direction given by the learned Additional District Judge that the suit in which the said decree was passed need not be tried suffer from no legal infirmity or jurisdictional defect, therefore, the writ petition has no merits which is accordingly dismissed in limine.