' The facts relevant for the decision of this revision are that the respondent No,1 filed a quit for declaration to the effect that the exchange deed dated 30-7-1981 in favour of the petitioner was secured through fraud and misrepresentation. It was pleased that the plaintiff wanted to transfer some land in the name of his wife, daughters and sons by way of gift. The plaintiff requested the petitioner, who at the relevant time was serving as Patwari in the Revenue Department, to assist him in the completion of the gift deeds. It is alleged that the, petitioner did assist the plaintiff but in the process he also got exchange deed executed in his favour and a gift deed in favour of his wife, which is subject-matter of the connected revision petition. The petitioner thereafter proceeded to exchange this land with respondents Nos. 2 and 3. The plaintiff came to know of this fraud when he obtained copy of Khasra Girdawari and thereafter he filed the suit. The petitioner resisted the suit.
The trial Court accordingly framed following issues:-- "(1) Whether the exchange deed No,1998 dated 30-7-1981 in favour of defendant No,1, Mutation No,627 dated 10-2-1987, Mutation No,88 dated 10-2-1987, Exchange Deed No,507 dated 30-9-1987, Mutation No,1508 dated 30-9-1987, Mutation No,203 dated 24-11-1987, Mutation No, 636 dated 9-12- 1987 and Mutation No, 635 dated 9-12-1987 are result of fraud, without notice of the plaintiff, void, ineffective and liable to cancellation? OPP
(2) Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD
(3) Whether the plaintiff has no cause of action or locus standi to file this suit? OPD
(4) Whether the plaintiff has filed this suit in collusion with defendant No,2? OPD 1.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the value of the suit for the purposes of court-fee and jurisdiction has teen incorrectly assessed, if so, what is the correct valuation? OPD.
(7) Whether the suit is within time? OPD
(8) Whether the defendant No,1 is entitled to recover special costs, if so, up to what extent? OPD No,1
(9) Relief."
2. The petitioner raised a preliminary objection as to the limitation. The issue was decided against the plaintiff and as a result thereof the suit was dismissed vide judgment and decree dated 17-1- 1991, which was assailed through an appeal, which came up on the file of Mr. Fakhar Hayat, the then Additional District Judge, Gujranwala, who accepted the appeal vide judgment and decree dated 5-10-1991 and remanded the case to the trial Court. The trial Court thereafter recorded evidence and after hearing the arguments again dismissed the suit vide judgment and decree dated 23-1- 1994, which was assailed through an appeal before the lower appellate Court. The appeal came up on the file of Mr. Muhammad Anwar Nasim, Additional District Judge, Hafizabad, who accepted the same vide judgment and decree dated 4-4-1995. Now this revision petition.
3. The other Civil Revision No,925-D of 1995 is by Mst. Shehzad Begum wife and sons of the petitioner. She was given 26 Kanals of land through gift deed dated 30-7-1981 Exh. D.3. Plaintiff filed a suit for declaration that the gift is product of fraud and misrepresentation. The petitioners contested the suit. The trial Court framed following issues:-- "(1) Whether the gift deed dated 30-7-1981 in favour of defendant No,1 and Mutation No,206 dated 10-2-1987, Exchange Deed No,509 dated 30-9-1987, Mutation No,636 dated 9-12-1987, Mutation No,205 dated 24-11-1987, Gift Deed No,1510 dated 30-9-1987 and Mutation No,637 dated 9-12-1987 are based on misrepresentation, fraud, void, ineffective against the rights of the plaintiff and liable to cancellation? OPP
(2) Whether the plaintiff is estopped by his act and conduct from filing this suit? OPP
(3) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(4) Whether the plaintiff has filed this suit in collusion with defendant No,2? OPD 1---3 and 4.
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the value of the suit for the purpose of court-fee and jurisdiction has been incorrectly assessed, if so, what is the correct valuation? OPD 1, 3, 4
(7) Whether the suit is within time? OPP
(8) Relief."
' The trial Court after hearing the arguments dismissed the suit vide judgment and decree dated 23-1-1994, which was assailed through an appeal before the lower appellate Court. The appeal came up on the file of Mr. Muhammad Anwar Nasim, Additional District Judge, Hafizabad by a consolidated judgment dated4-4-1995, therefore, now this revision.
4. Since the documents Exhs. D2 and D3 were challenged on the same grounds. The evidence led in both the suits was also the same. The two appeals were decided by one judgment and above all the arguments have been addressed together in both the revisions, therefore, the same are being decided by one judgment.
5. The learned counsel for the petitioners argued that although the plaintiff pleaded fraud and misrepresentation yet he failed to substantiate the same in evidence because no further particulars of fraud were given. It is added that the disparity of area exchanged is no ground to annul the exchange. In this behalf, the learned counsel has referred to section 25 of the Contract Act. It is argued that actually the plaintiff filed two pre-emption suits, which were financed by the petitioner and ultimately both the suits were decreed vide decree-sheet Exhs. D5 and D7 in his favour. It is added that arrangement between the petitioner and the respondent No,1 was that in case of success in the pre-emption suits the plaintiff shall give the land measuring 224 Kanals subject-matter of decree Exh. D5 to the petitioner or his nominee. It is added that out of this area 198 Kanals were given in exchange to the petitioner while the remaining 26 Kanals were gifted by the plaintiff to his wife, petitioner in the other revision petition. It is submitted that Shabbir Hussain, son-in-law of the plaintiff, represented Mst. Shehzad Begum wife of the petitioner at the time of the gift in her favour. This fact was denied by the plaintiff but was proved through report of the Handwriting Expert.
6. I have given my anxious consideration to the arguments of the learned counsel for the petitioners and gone through the record. The admitted position between the parties is that the plaintiff executed a gift deed Exh. D1 in favour of Mst. Safia Bibi, his daughter. It was pleaded on behalf of the plaintiff that in the process the petitioner fraudulently and by misrepresentation secured exchange deed Exh. D2 and gift deed Exh.D3. The moment respondent No,1 plaintiff made statement on oath as P.W.6 the onus of issue No,1 shifted to the petitioner to prove that the document, was executed voluntarily and of free will. He miserably failed to prove this fact. Mian Manzoor Ahmad, Advocate, who identified the parties before the Sub-Registrar but he was not produced. The plea that the petitioner financed the prosecution of the two suits for preemption filed by him runs counter to the own plea of the petitioner because in that eventuality the petitioner was only to get and not to give land. The learned Additional District Judge has rightly scrutinized the evidence of the parties and concluded that the documents were product of fraud 'and misrepresentation, therefore, not binding on the plaintiff. The main points which the learned counsel for the petitioners could not meet are--
(1) that why the mutation was not sanctioned for long 6 years even after the registration of the two deeds. The purpose seems to keep the documents secret from the plaintiff so the plea of limitation could be raised in defence;
(2) that the possession remained with the plaintiff as is proved by Ashiq Hussain P.W.1, the tenant, whose statement is corroborated by the other P.Ws.; and
(3) that the petitioner gave 26 Kanals land to the plaintiff and in exchange got 198 Kanals. There is nothing on record to prove that the land of the petitioner was superior than that of the plaintiff. On the other hand, the learned Additional District Judge on the basis of evidence recorded that the land is of one and the same type. The petitioner has also admitted this fact.
(4)
7. The plea that there was an agreement between the petitioner and the plaintiff to surrender land measuring 224 Kanals, in case the plaintiffs suit for 'pre-emption is decreed, is falsified by the documents Exhs.D2 and D3 because if it was the arrangement then why the petitioner had given 26 Kanals to the respondent No,1. This is beside the legal position of such an agreement, which would be discussed in the later part of this judgment. Suffice it is to observe here that by raising this plea the petitioners have themselves proved the documents fake.
8. Now coming to the gift deed Exh.D3 subject-matter of Civil Revision No,925 of 1995. The condition precedents to constitute a valid gift in view of section 149 of the Muhammadan Law of Mulla are--
(i) declaration of "gift;
(ii) acceptance; and
(iii) delivery of possession.
' The learned Additional District Judge has held that the possession was never handed over to Mst.
Shahzad Begum the donee, therefore, complete gift did not come into existence. There is nothing wrong with this conclusion. The petitioner seems to be so clever that he wanted to leave no trace of his fraud as is clear from the fact that in spite of his presence at the time of registration of gift deed Exh. D3 his wife was allegedly represented Shabbir Hussain son-in-law of the plaintiff. This is not all.
Even Mst. Shahzad Begum was not shown as wife of the petitioner instead her father's name was given. The learned Additional District Judge rightly observed that since Mst. Shehzad Begum herself has not appeared to prove the gift, the services rendered by her to the plaintiff and delivery of possession, therefore, her absence is fatal to her claim of valid gift.
9. Now coming to the agreement between the petitioner and the plaintiff that in case he succeeded in pre-emption suits he would transfer the land subject-matter of decree-sheet Exh. D5 to the petitioner. This was never pleaded, therefore, the evidence led to prove this fact is to be simply ignored. It is clear from the provisions of Order VI, Rules 2 and 4 that a fact has to be pleaded before it could be proved. I am fortified in my view by the judgment in the case of Siddik Muhammad Shah v. Mst. Saran and others (AIR 1930 PC 57). The relevant portion of the same reads as under:- "Where a claim has been never made in the defence present no amount of evidence can be looked into upon a plea which was never put forward."
' In this behalf, reference can also be made to Kanda v. Waghu AIR 1950 PC 68; Amir Ali v. Ali Muhammad PLD 1981 Kar. 150; Muhammad Hanif v. Mst. Sara PLD 1982 Kar. 182; Syed Muhammad Murtaza v. Rehman and others 1982 CLC 1728; Taib A. Kapadia v. Agha Ziaudin Barni 1981 CLC 1267; Jana Bai v. Mst. Gulshan and another 1984 CLC 1061; Government of West Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Baqa Muhammad v.
Muhammad Nawaz and others PLD 1985 Lah. 476 and T. Motandas through his Legal Heir v. Anis Ahmad PLD 1987 Kar.
159.
10. Now coming to the legality of the agreement whereby petitioner agreed to finance prosecution of two suits for pre-emption. It is true that in our country such agreements are not directly prohibited. However, such agreements have been examined under section 25 of the Contract Act as to whether particular agreement is opposed to public policy or not? It is equally true that every agreement to finance a litigation per se is not opposed to public policy rather there may be a case in which it would be in the furtherance of law, equity, justice and necessary to resist oppression e.g. That a suitor, who has a just and complete title to a property but no means to retrieve the same, therefore, in this situation the agreement would be legal and justified. The golden rule which has been evolved in the sub-continent is that such agreements are to be carefully scrutinized and when found to be unconscionable, unjust or inequitable or for improper object or as against law or oppressive or leading to vexatious litigation the same would be attracted being against public policy. I am fortified in my view by the judgments in the cases of Ram Coomar Coondoo v. Chunder Canto Mookerjee (1876-77) 2 Cal. 233; Indar Singh v. Munshi and others AIR 1920 Lah. 123(2); Sri Raja Vatsavaya Venkata Subhadrayyamma Jagapati Bahadur Garu v. Sri Poosapati Venkatapati Raju Garu and others AIR 1924 Privy Council 162; Kesho Das v. Tulsi Dass AIR 1926 Lah. 45; Ramanamma v.
Marina Viranna AIR 1931 Privy Council 100; Alopi Parshad and another v. Court of Wards and others AIR 1938 Lah. 23 and Hoshang and others v. Dr. P. Bharucha and others PLD 1968 Kar.
723.
11. Now coming to the case in hand. The alleged agreement was for improper purpose. The right to pre-empt a sale is a special right and by agreeing to share the gains in a suit for pre-emption with others would clearly amount to setting at naught the provisions of Pre-emption Act. This is against public policy, therefore, the agreement if any was of champertous nature and cannot be given effect by Courts of law. The alleged agreement was clearly covered by mischief of champers agreement. This is not all. The petitioner has failed to prove not only the agreement but also the amounts spent by him. The agreement was vauge and its terms remained shrouded in mystery.
12. The upshot of the above discussion is that there is not merit in this revision petition. The same is dismissed in limine.