' This is a revision petition by the defendants in the suit for declaration filed by Muhammad Siddique, the respondent, against concurrent judgments and decrees of the learned two Courts.
2. The plaintiff-respondent sought a declaration to his title regarding land measuring 167 Kanals and 2 Marlas, on the ground that it was owned by Wali Muhammad deceased and as his real uncle's son he was the sole surviving heir of the aforesaid deceased.
3. The suit was contested on a number of grounds. On facts, the case of the petitioners was that Wali Muhammad had gifted the aforesaid land in his lifetime to Manzoor Hussain, petitioner No,1, and Zahoor Hussain, predecessor-in-interest of petitioners Nos.2 to 4 (hereinafter called the donees), vide mutation No,69 attested on 10-3-1974 (Exh.P.2). According to the plaint the donees were the sons of Mst. Noor Jehan, real sister of the plaintiff.
4. Necessary issues were framed and the suit was tried. Vide judgment and decree, dated 12-3- 1989 it was decreed. The petitioner took an appeal before the learned District Court which was dismissed on 13-11-1994. These decrees are the subject-matter of this revision petition. The learned two Courts have taken the view that the gift in favour of the petitioners was not established.
5. The learned counsel for the petitioners contended that he had moved three applications before the learned trial Court. One application sought permission to produce copy of the written- statement in the suit earlier filed by Amjad Ali, son of Muhammad Siddique, the respondent. Wali Muhammad, deceased was party to the said suit and he had affirmed having made the gift in favour of the donees. By the second application he prayed for summoning Patwari and the Tehsildar while the third application was for framing an issue. All these applications were rejected and even the learned appellate Court did not favourably consider the said applications. Before this Court he particularly insisted that copy of the written statement filed by Wali Muhammad deceased, the donor in the earlier suit of Amjad Ali was part of the judicial record which should have been allowed to be produced. He next contended that gift by Wali Muhammad in favour of the donees was challenged on the ground that it was illegal, collusive and inoperative but neither any details were specified in the plaint as required by Rules 2 and 4 of Order VI of the Code of Civil Procedure nor any evidence was adduced by the respondent in support of the said contention.
According to him, admittedly, the donor has a widow and a sister who were necessary parties to the suit and in their absence no effective decree could be passed because the respondent had claimed exclusive title to the entire estate of the deceased. He further contended that Wali Muhammad deceased had duly made a gift to the donees and it was for the respondent to prove that it was the result of collusion.
6. On the other hand, the learned counsel for the respondent has contended that there was no evidence at the entire gift. Mutation only affirms a transaction. He next contended that according to Exh.D.5, Khasra Girdawari (recorded on 20-3-1974) the land was under self-cultivation of Wali Muhammad and possession of the donees was recorded in Kharif 1974., According to him, the gift was incomplete for want of delivery of possession, He next contended that Zahoor. Hussain, one of the donees, who appeared as D.W.I was not, aware of the name of the Tehsildar who had attested the mutation, He also submit's that Muhammad Siddique was the at Lambardar of the village while the mutation was attested by the Lambardar of another village. He also invited my attention to the statement of D.W.1 that the donor used to live in their house but used to retain usufruct of the land with himself even after the alleged gift. From these facts, he wants to draw an inference that Wali Muhammad had never divested himself of the corpus. He further contends that according to P.W.1 and P.W.2, the land in dispute was not gifted by Wali Muhammad. Their statements were not questioned in cross-examination. According to him the evidence of P.W.3 and P.W.4 also establishes that Wali Muhammad remained in possession of the land in his lifetime and, therefore, the so-called gift set up by the petitioners in their favour was never complete and operative.
7. Regarding non-impleadment of the widow and the sister of Wali Muhammad deceased, the learned counsel submitted that the learned Additional District Judge has directed that while sanctioning fresh mutation of the estate of Wali Muhammad deceased, all other legal heirs including the widow should be kept in mind by the Revenue Officer and fresh mutation be attested in accordance with law.
8. I have considered the submissions made by the learned counsel for the parties. The initial burden to prove that the gift was made in favour of the donees was discharged by them by production of the mutation in question and the testimony of Zahoor Hussain D.W.1. In rebuttal, there was no evidence whatsoever. The only allegation in the plaint was that this mutation was the outcome of collusion of the Revenue Officials with the donees.
9. Collusion has been defined as follows in the Black's Law Dictionary (Fifth Edition).
"Collusion, -- An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose. Tomiyosu v. Golden, 81 Nev. 140, 400 p.2d 415, 417. 'A secret combination, conspiracy, or concert of action between two or more persons for, fraudulent or deceitful purpose."
' According to Wharton's Law Lexicon, 14th Edition, the word 'collusion' means as under:-- "Collusion, to unite in the same play or game, and thus, to unite for the purposes of fraud or deception, an agreement or compact between two or more persons to do some act in order to prejudice a third person, or for some improper purpose. Collusion in judicial proceedings is a secret agreement between two persons that the one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose..."
' A perusal of the above definition shows that an element of fraud is inbuilt in the said expression. In fact by alleging collusion, the plaintiff-respondent had alleged fraud. Reference may be made to Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others PLD 1984 Lah.
396.
10. Muhammad Siddique, the plaintiff appeared in the witness-box as P.W.4 but did not even allege that the mutation was the outcome of fraud. In cross-examination he stated that the land was ancestral and it could not be gifted without legal necessity. He admitted that the donees had got the mutation attested in their favour. This mutation was implemented in the record of rights for the years 1976-77 (Exh.D.3), 1980-81 (Exh.D.4 and 1984-85 (Exh.P.1). Presumption of correctness is attached to the entries of the Jamabandi wherein the donees were recorded as owners. A Jamabandi is a title document and very strong evidence was required to displace the tile of the donees. The learned first appellate Court has held that the presumption attached to the Revenue Record was adequately rebutted. For the reasons to follow it is not possible to sustain this finding.
11. The mutation of gift was attested on 20-3-1974 while the donor died on 20-6-1984 (Exh.P.4). This mutation was implemented in successive Jamabandis. The donor never challenged it in his lifetime. It is understandable that the sister of the deceased, the mother of donees, would not challenge the gift. However, even the widow of the deceased, who was issueless, did not come forward to challenge it. I have also taken note of the fact that plaintiff's son namely Amjad Ali had earlier filed a declaratory suit. Copy of the plaint was produced on the record as Exh.D.1 to which the donor and the donees were parties. In the said suit, the factum of gift was conceded but it was challenged on the ground of customary restraints. The suit was dismissed on 1-2-1984 as being hit by the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 as amended by Punjab Ordinance No,XIII of 1983.
12. The basis of the finding of the learned two Courts that the mutation was not attested in the village or that the Lambardar of that village did not attest the mutation could hardly be sufficient to hold that the gift made in favour of the donees was the result of collusion of the Revenue Officials with 'the donees. For the procedural lapse, if any, on the part of the revenue officials, the donees could not be made to suffer.
13. Apart from the mutation in question the entries of Khasra Girdawari were changed in favour of the petitioner on 20-3-1974, the day, the mutation was attested. However, they were shown to be in cultivating possession of the gifted land in Kharif, 1974. The contention of the learned counsel for the respondent that possession should have been changed in Rabi 1974, and therefore, the gift was never complete has not merit either. Firstly, for the reason that the person who had sown Rabi 1974 crop alone could be reflected in the Girdawari for Rabi, 1974 and secondly D.W.1 admitted that the petitioners were already in possession of the disputed land as tenants. I may add that even subsequent delivery of possession cures the defect of initial non-delivery. Overall circumstances brought on record particularly the fact that the donor lived for about 10 years after the gift but did not challenge it falsifies the plea of the respondent that the gift was the outcome of fraud.
14. It was conceded by the learned counsel for he respondent that the widow and the real sister of Wali Muhammad deceased were alive when the suit was filed. They were not impleaded. The plaintiff-respondent had claimed exclusive title to the property by asserting that he was the sole surviving heir of Wali Muhammad. He, thus, set up a false case. The contention of the learned counsel for the respondent that the interest of all legal heirs of the deceased has been taken- care of by the learned Additional District Judge will not cure the defect of non-joinder of necessary parties. It is anybody's guess as to what position they would have taken, had they been impleaded in the suit. May be, they would have accepted the gift in favour of the donees. The suit was, therefore, bad for non-joinder of necessary parties and was liable to be dismissed on this score as well.
15. I have also noted with concern a growing tendency among the litigants to raise false pleas and set up false cases. This is to be checked and one of the methods I could visualise is that whenever it is found that a litigant has set up a false case, even if it is partly false, he is not entitled to any discretionary relief. The grant or refusal of declaration is essentially discretionary and in this case, to my mind, the plaintiff had forfeited his right to an equatable relief by putting up a false case that he was the only surviving heir of Wali Muhammad deceased. Reference may be made to Habib Khan v. Mst. Taj Bibi and others 1973 SCM R 228 and Asa Ram and another v. Sukha Singh AIR 1921 Lah. 336, according to which if a suit is found to be partly false the whole was liable to be dismissed.
16. For what has been stated above, this revision petition is allowed and the suit filed by the respondent is dismissed with costs throughout.