' This revision arises from judgment dated 4-2-1989 of the learned Additional District Judge, Gujrat, whereby appeal of the petitioner against judgment and decree dated 20-5-1976 was dismissed.
2. Facts necessary for the decision of this revision are that Haider (petitioner herein) and Jahana filed a suit for declaration to the effect that decree dated 14-1-1963 in Suit No, 154 was a result of fraud, misrepresentation and that they had not sold the land in issue and also that the respondent was not entitled to implement the decree in the revenue record for seeking mutation in their favour.
It was asserted that a suit for declaration was filed by Raja and three others, respondents Nos.'1 to 3 herein, against Ghulam Haider (petitioner) and Jahana, claiming therein that Ghulam Haider and Jahana were owners of land measuring 116 Kanals, 15 Marlas, who allegedly sold it to respondents Nos.1 to 3 for Rs,32,000 and allegedly transferred possession thereof four months before filing of the suit. The suit was filed on 11-1-.963 which was decreed on 14-1-1963. It was claimed that the decree was obtained by impersonation, frauct and misrepresentation and that the petitioner or Jahaha had never sold the land nor appeared before the learned Civil Judge for giving any consent to decree the suit. In this backdrop, the validity of consent decree was challenged on the ground of fraud and misrepresentation.
3. Respondents opposed the suit and maintained that the land was lawfully sold in their favour, they had allegedly paid consideration and that the decree was allegedly passed with the consent of parties therein and also that the suit was not maintainable in existing form, as the petitioner was not allegedly in possession of the land.
4. In view of the preliminary objection, as to maintainability of the suit, a preliminary issue was framed which was decided in favour of the petitioner on 5-3-1965. The findings were that the plaintiffs/petitioners were in possession of the land and the suit was maintainable in its existing form. Order dated 5-3-1965 deciding a preliminary issue in favour of the petitioner was not assailed in revision or otherwise.
5. After the decision of preliminary issue the learned Civil Judge framed an issue on merit and ultimately dismissed the suit on 13-1-1973. In appeal, the case was remanded after framing additional issue. Vide judgement dated 25-7-1974. In past remand proceedings. The suit was dismissed on 20-5-1976. Appeal filed by the petitioner also ended in dismissal on 11-12-1984.
6. Feeling aggrieved, petitioner filed the present revision petition, which was allowed on 28-4-1998 and in result the case was remanded to the learned Additional District Judge for decision of the appeal afresh, after considering the entire oral and documentary evidence on record. C.P. No,996-L of 1998 was filed by respondents Nos.1 to 3 which was allowed on 25-11-1998, and on the joint request of the parties, the case was sent back for decision of revision petition by this Court.
7. Learned counsel for the petitioner reiterated the previous arguments and maintained that the judgements rendered by Courts below suffered from complete misreading of record and non- consideration of the Material facts. From the respondents' side, it was argued that the findings of fact recorded by the Court below could not be questioned in the revisional jurisdiction and that the petitioner miserably failed to prove that the decree was obtained by fraud. It was submitted that written statement was drafted by the deed-writer who entered the same in his register. And that the register was countersigned. It was maintained that the land was lawfully sold but despite having received consideration, the petitioner filed a suit on a concocted version which was rightly disbelieved by the Courts below.
8. On deeper analysis of the material annexed with this revision, it is observed that the case set up by the petitioner was that the land was never sold in favour of respondents 1 to 4, no consideration was ever received, the petitioner never appeared before the Court in the earlier suit. No consenting statement was made and that the decree was obtained by fraud and misrepresentation. From the judgements of the Courts below, it is obvious that number of material factors existing on record which were relevant to throw light on the question of fraud, were ignored and kept out of consideration.
9. With a view to reach an effective conclusion, one need to examine the case set up by respondents 1 to 4, in the earlier suit and the evidence which was produced in the present suit, by way of defence. The earlier suit was instituted on 14-1-1963 which was registered as Suit No,54 of 14- 1-1963 and was decreed on the same day. It was the case of respondents that the petitioner and Jahana appeared in the Court on the very first date and allegedly filed a consenting written statement on which the suit was decreed. In the plaint of Suit No, 54, respondents 1 to 4 asserted that the petitioner had allegedly made an oral sale of land measuring 116 Kanals, 15 Marlas in their favour, four months before the filing of suit and allegedly delivered the possession and that from the date of alleged purchase, respondents 1 to 4 were statedly in possession of the land as owners.
This was so stated in para. No,2 of the plaint. In paragraph No,3 of the plaint, it was asserted that the petitioners had allegedly changed their mind, denied the ownership rights of respondents Nos.1 to 4 and were determined to get possession. Similarly, in the next paragraph, it was asserted that the petitioner and the late Jahana were called upon to refrain from interfering in possession and the ownership of respondents but a week before institution of the suit, they refused to do the needful which necessitated the filing of the suit. The plaint was drafted on 11-1-1963 and was filed on 14-1-1963. It is interesting to note that though the plaint gives an impression that there was a serious dispute between the parties, the petitioner and Jahana were not willing to accept the plea of ownership and were allegedly determined to get possession and that they had turned down the request to behave, yet on the presentation of plaint i,e, very first day, the defendants in the suit, were shown to have appeared in the the Court filed consenting written statement and allegedly agreed to the grant of decree, which the Court passed on the very same day. It is amazing that on the one hand, respondents 1 to 4 pleaded to be at daggers drawn with the petitioners and at the same time they tried to give an impression that the petitioners willingly appeared in Court without any summon/notice and agreed for the grant of decree. It is also important to note that the consenting written statement is claimed to have been drafted by the same petition writer who allegedly drafted the plaint. It is not understood as to how the defendants in the suit got knowledge of the proceedings, how they came in the Court and what was the occasion for them to be present in Court when they were not either informed by the Court or by the party. It is also worth consideration that if the defendants in the suit were so willing to accept the place of sale then what was the occasion to file the suit and why the transaction was not effected either through mutation or through sale deed. It needs to be explained that if the defendants were willing to accept the claim then what was the reason to raise allegations in the plaint against them that they were determined to deny the transaction and to disturb the possession. These circumstances would show that either of the two pleas false. Either the story given in the plaint was false and if it was not so, then the story of attendance of defendants on the very first date, and agreeing to the grant of decree, without any intervening efforts for compromise was a false concoction. The plaint does not give an impression that the parties had already reached a compromise and that the suit was being filed to obtain a consent decree with a view to circumvent the provision of law requiring the registration of a sale deed, to acquire title in the property. It cannot he overlooked the identification of defendants in the suit was claimed to have been made by a person who was not a Lumbardar of the relevant place.
10. As to the proceedings in the suit, it was claimed by the respondents that the same were recorded by the Presiding Officer himself but the evidence on record is to the contrary, Court Clerk appeared as P.W. 6 and admitted that the words (URDU TEXT) were in his handwriting and was countersigned by the Presiding Officer. He also admitted that the report was written by him on which there was no date. He did not know as to who had written with red ink on the court-fee stamps and who had signed the same. He admitted that on the stamp, the date was written as 17- 1-1963. He further admitted that the words in black ink were .n his handwriting. He claimed that he had written the proceedings on the dictation of he Presiding Officer but he did not know the parties personally. The pursual of the proceedings in the suit clearly indicates that the same were recorded by the Clerk of Court and except one line order, no part of the proceedings were recorded by the Presiding Officer. Careful scrutiny of the proceedings will reveal that the same do not indicate if the recording was under dictation of the Presiding Officer or in his presence. The only sentence written by the learned Civil Judge was to the following effect:-{{URDU TEXT}}
11. The proceedings recorded on 14-1-1963 and the circumstances noted supra, will reveal that the suit was disposed of in a mechanical manner. Though the averments in the plaint showing various disputes between the parties and the fact that it was first date of hearing and the defendants were not expected to be present in Court without notice, should have made the Court conscious and careful in accepting the conceding statement, particularly when the persons allegedly present in Court and represented to be defendants in suit were not represented by any counsel and had not produced any document to prove their identity. Even otherwise, if a request is made to the Court to decree the suit on the basis of compromise, it is duty of the Court to satisfy that there was a lawful compromise or settlement and that there was a genuine agreement and also that the real persons against whom the decree was being passed, were present in Court and had understood the compromise, agreed to the same and were making statements with their free will and volition. The order accepting any compromise or granting consent decree shall indicate conscious application of mind by the Court to the circumstances hereinabove, but the perusal of the decree under challenge makes it obvious that no such reasonable care was taken and suit was decreed in a routine.
12. The decree under challenge was otherwise illegal and without jurisdiction. Reason being that a declaration of title was claimed on the basis of an oral sale. The value of the property was admitted to be Rs,32,000. This being so, no transfer of title could take place without a registered sale deed in view of the provisions of section 54 of Transfer of Property Act. Admittedly, no sale deed was executed and in the 'absence of any registered sale deed, the Court could not possibly grant decree of declaration of title, to circumvent the provisions of law. In Niaz Ali and 16 others v.
Muhammad Din and 13 others PLD 1993 Lah.33. It has been observed that under section 54 of the Transfer of Property Act, the transfer of title of immovable property worth Rs,100 or more can only be made by a registered instrument of transfer and any oral transaction incorporated in mutation neither transfers the title in favour of the vendee nor can establish the same. Though, the suit filed by the vendor may be dismissed on the ground of estoppel or acquiescence but nevertheless, for claiming title in immovable property on the basis of sale, one has to bank upon registered instrument. It is obvious from the decree under challenge that there was no registered sale deed nor the Court was conscious of the fact that no declaration could be granted to confer title in the absence of a registered instrument. In any case, if the intention was to transfer title through a decree, the same was not possible without registration of decree itself which course was never followed. The decree on the face of it was therefore, nullity in law.
13. One of the important factor, leading support to the plea of fraud in obtaining decree was that no consideration was proved to have been paid and the whole story built up by the respondent was either contradictory or illusory. According to the plaint in the suit, in which the decree was passed, the respondents Nos.1 to 4 claimed that the bargain was settled four months before filing of the suit, when consideration was paid and possession was transferred. The plaint was drafted on 11-1- 1963 while the suit was filed on 14-1-1963 and in this way, according to respondents Nos. I to 4, the alleged oral sale and alleged transfer of consideration took place either on 11-9-1962 or 14-9-1962.
' Appearing as D,W.8 in the present suit, Muhammad Hayat, respondent No,3 deposed in cross- examination as under:-{{URDU TEXT}} ' According to the above statement, the decree was passed on the next day from the date on which the price was allegedly paid but according to the plaint in the suit, in which consent decree was obtained, respondents 1 to 4 claimed that the price had been paid four months before filing of the suit i. e., somewhere in September, 1962. Similarly, in that suit, it was claimed that possession had also been transferred to the vendee at the time of oral sale but here in the present statement, it is claimed that possession of 2-1/4 acres was delivered on the next day from the decree i.e, 15-1- 1963 and that the possession of remaining 2-1/4 acres was never delivered. So much so, in the present case, the findings recorded by the Court below vide order dated 5-3-1965 were that the petitioner was in possession of the land and that respondents 1 to 4 were not in possession thereof.
This all would show that in the previous suit, false representation was made, a fraud was committed upon the Court by giving an impression as to alleged payment of price, as to the alleged transfer of possession before the suit, and as to the alleged transaction of sale, though in point of fact, neither any consideration was paid nor any receipt for payment of price was produced nor there existed any valid instrument of sale to convey title and no transfer of possession had ever taken place.
14. As noted supra, evidence does not give impression of petitioner/plaintiff having appeared in Court in the earlier suit or agreed for a consent decree and instead the material on record proves beyond doubt that the decree was obtained by fraud and misrepresentation. Even otherwise, the alleged consent decree was nullity in law and was passed without jurisdiction and being oblivious of the relevant provisions of law. The learned Courts below did not attend to the material evidence and factors on record, misinterpreted the proceedings in the earlier suit and also the evidence, misread the material evidence on record and findings recorded by them suffer from perversity of reasoning and serious legal infirmities, hence untenable.
15. As regard the argument that the findings of fact could not be interfered with in revisional jurisdiction, it may be observed that in a case where he revisional Court finds that the findings were recorded by misreading, non-reading and misinterpreting the evidence on record or that the same was result of non-consideration of material, factual and legal aspects of record or otherwise suffer from perversity of reasoning and legal infirmities, the Court will not be denuded of its jurisdiction to make interference. In Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCM R 2029, it was ruled that this Court would be justified in interfering with concurrent findings of fact whore on examination of record, it is found that the Courts below had arrived at an erroneous conclusion which was based on misreading of the documents. In the case of Nasir Abbas v. Manzoor Haider Shah and others PLD 1989 SC 568, it was ruled that if' the lower Court misreads the evidence on record and fails to take notice of a vital fact, appearing appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision open to revision by the High Court. Reference can also be made to Muhammad Sain v. Muhammad Din 1996 SCM R 1918, where interference in revisional jurisdiction in the judgment of Appellate Court on the grounds that findings were reversed by the Appellate Court, without attending or considering the effect of certain statements was held to be justified.
16. From the rule given in the precedent cases and also from the provisions of section 115 of C.P.C., it is obvious that though interference in revisional jurisdiction cannot be made on the ground that the findings were erroneous but if the Courts below are found to have misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence, which had direct bearing on the issue involved, then the findings of fact would be open to interference under section 115 of C.P.C. Likewise; if the approach of Courts below is perverse and suffer from legal infirmities, the findings so recorded can be legitimately disturbed. In the present case. It is obvious that the learned Additional District Judge mainly referred to the respective contentions raised before him by the two sides and thereafter inferred that the petitioner had not proved that the decree was a result of fraud and that the consideration was provded. In reaching this conclusion, the learned Additional District Judge and also the learned Civil Judge either misread the evidence or omitted to consider the important piece of evidence appearing on record as noted supra, though the same had direct bearing On the issue involved.
The conclusions were drawn in oblivion of the contradictions in evidence and also by overlooking the most material consideration relevant for the fair and just conclusion of the issue involved. Even otherwise, the reasoning which prevailed upon the Courts below, were perverse and suffer from serious legal infirmities and in view thereof, the view taken by them is unwarranted in law, and can be reversed. In the circumstances referred to hereinabove, it is obvious that the Courts below committed material illegality and irregularity in the exercise of their jurisdiction and that the decisions rendered by them suffer from error of law which can be corrected in revisional jurisdiction.
17. For the reasons above, this revision succeeds, the impugned judgments are set aside and in result, suit of the petitioner stands decreed with cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.