' Brief facts out of which the present second appeal arises are that Jani predecessor-in-intetest of the appellant sold land to respondent No,1 measuring 98 Kanals, 13 Marlas situated in square No,17 and also sold the land measuring 4 Kanals, 2 Marlas situated in square No,29 in favour of his daughter's son on 21-1-1967. Mutation No,210 was also attested by the Assistant Commissioner after recording the statement of the parties on 16-3-1967. Jani predecessor-in-interest of the appellant filed suit before the Civil Court against his maternal grand son Muhammad Asghar on the ground that the aforesaid sale-deed is result of fraud and without any consideration. The trial Court decreed the suit vide judgment and decree, dated 14-7-1967 and set aside the aforesaid mutation No,120 which was attested by the Assistant Land Commissioner on 16-31967. Jani predecessor-in- interest of the appellant filed application for review of the aforesaid mutation No,210 before the Assistant Land Commissioner. The Assistant Commissioner accepted the same on the basis of the aforesaid decree on 16-4-1968 also cancelled the mutation qua the respondent. Respondent being aggrieved by the aforesaid review and the decree filed a suit for declaration that sale-deed, dated 21-1-1967 and mutation, dated 16-3-1967 are valid and Jani predecessor-in-interest of the appellant obtained collusive decree against Muhammad Asghar his maternal grand son. The present appellant filed a written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the Trial Court framed the following issues:
(i) Has the Civil Court no jurisdiction to try the suit?
(ii) Whether the registered sale-deed, dated 21-1-1967 is illegal, against the provisions of M.L.R. 64 and is null and void?
(iii) Whether the sale-deed is the result of fraud and misrepresentation?
(iv)Whether the decree, dated 9-12-1967 is collusive and is ineffective against the rights of the plaintiffs?
(v) Are the plaintiffs owners of land in suit and are, thus, entitled to the injunction prayed for?
(vi) Relief.
' The trial Court dismissed the suit vide judgment and decree, dated 20-10-1975. The respondent being aggrieved by the judgment and decree filed appeal before the District Judge, Faisalabad who entrusted the same to the Additional District Judge, Faisalabad. Learned Additional District Judge accepted the appeal vide judgment and decree, dated 8-1-1978. Hence the present second appeal.
2. Learned counsel for the appellant stated that the Civil Court has no jurisdiction by virtue of para.25 read with 27 M.L.R.
64. He further stated that although the alleged sale-deed was executed in favour of the present respondents and his grand son by one sale-deed but infact it consists of 2 sale-deeds as the averments of the sale-deed clearly reveals that it is not one sale-deed. He further states that the respondent did not challenge the decree, dated 14-6-1967 before any higher forum and the same still holds the field. He further stated that even if the judgment and decree, dated 14-6-1967 is void but the same cannot be ignored as the same is not set aside by any higher Court. He further stated that respondent has challenged the review order passed by the Assistant Commissioner on the basis of the decree, dated 14-6-1967 but the respondent failed to challenge the decree till date.
Therefore, same is valid and holds the field. He summed up his arguments that mutation No,21-4- 1968 was sanctioned/ attested by the Assistant Land Commissioner, and found the same in violation of Provisions of M.L.R.
64. Therefore, Civil Court has no jurisdiction to take the cognizance of the matter by virtue of paras.27 and 25 of M.L.R.
64. Sale-deed itself in valid under the provision of M.L.R. 64 because it consists of two sale-deeds.
Therefore, same is void.
3. Learned counsel for the respondent stated that predecessor-in-interest of the appellant has executed only one sale-deed and, therefore, contention of the learned counsel for the appellant that Jani has executed 2 independent sale-deeds has no force. He further stated that agreement to sell and the contents of the sale-deed have been that it is one sale-deed. Therefore, same is not in violation of the mandatory provisions of MLR 64. He further stated that the mutation was sanctioned by the Assistant Commissioner after recording the evidence of the parties in which Jani has given affidavit that he has alienated the entire holding, therefore, there is no violation of M.L.R.
64. He further stated that sale-deed has been implemented. Therefore, title has been passed to the respondents. The predecessor-in-nterest of the appellant has only two remedies either to file a suit for recovery for the purchase money or suit for possession. He further stated that respondent appeared in witness box and had given offer that the case may be decided on oath but the same was not accepted by the predecessor-in-interest of the appellant. He further stated that originally the suit was not filed against the present respondent. The suit was filed against his own maternal grand son by the predecessor-in-interest of the appellant. Therefore, it is was collusive. He further stated that respondents were not party in the earlier suit. Therefore, question does not arise that the respondents do not file appeal against the judgment and decree, dated 14-7-1967. The respondents were aggrieved by the review order. Therefore, respondent was justified to file suit for declaration.
6. In rebuttal learned counsel for the appellant stated that sale-deed is void. Possession of the land is still with the appellant. He further stated that respondents have only challenged the mutation and mutation does not create any right in favour of any party untill and unless the decree, dated 14-7-1967 is set aside by any Court.
7. I have given my anxious consideration to the contention of learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:
(i) Jana predecessor-in-interest of the appellant owned total land measuring 103 Kanal, 8 Marlas.
(ii) Out of the aforesaid total land he sold 98 Kanals and 15 Marlas to the respondents and remaining 4 Kanals, 13 Marlas to his Maternal son Muhammad Asghar vide one sale-deed, dated 19-1-1967. The same was registered on 21-11967 for consideration of Rs,64,000.
(iii) Contents of the registered sale-deed reveal that Jana predecessor-in-interest of the appellant received 6,000 as earnest money whereas the balance price Rs,46,000 was received by him before the Sub-Registrar at the time of registration of the sale-deed.
(iv) Possession was also handed over to the vendees.
(v) On 16-3-1967 mutation was attested in favour of the respondents and grand son of Jana namely Muhammad Asghar.
(vi) Jana predecessor-in-interest of present appellant allegedly filed collusive suit against his maternal grand son Muhammad Asghar through his father Ghulam Muhammad on the ground that the sale to the extent of share of Muhammad Asghar was illegal because no sale price to the extent of his share had been given to him.
(vii) On 14-6-1967 suit was decreed on the basis of consent written statement. It is pertinent to mention here that the present respondents were not party in the aforesaid suit.
(viii) Predecessor-in-interest Jana filed an application before the Assistant Commissioner for review of the mutation No,210, dated 16-3-1987 attested by the Assistant Commissioner from the name of Muhammad Asghar. On 16-4-1968 Assistant Commissioner cancelled the mutation No, 210 on the basis of the aforesaid decree, dated 14-6-1967. The Assistant Commissioner also cancelled the mutation from the name of the present respondents on the ground that same was clearly in violation of Martial Law Regulation No,
64. The respondent filed suit, for declaration and permanent injunction on 10-12-1968.
(ix) The suit was decreed on 20-10-1975. Appellant also filed an appeal before the Additional District Judge on 12-11-1975. The Additional District Judge dismissed the appeal on 8-1-1978. Hence the present appeal.
In case the aforesaid facts are put in juxtaposition then it is crystal clear that A originally the mutation No,210 was attested by the Assistant Commissioner in terms of the registered sale-deed on 16-3-1967 and did not raise any objection that the sale-deed is in violation of para.25 and para.27 of Martial Law Regulation 64. It is also admitted fact that predecessor-in-interest of appellant filed a civil suit against his own maternal grand son Muhammad Asghar through his father. The son-in-law of the predecessor-in-interest has filed consenting written statement.
Thereafter, the suit was decreed in favour of the predecessor-in-interest of the appellant. On the basis of the aforesaid decree the mutation in favour of the maternal grand son of the predecessor- in-interest of the appellant was cancelled and also cancelled the mutation in favour of the respondent. On 21-4-1968 on the ground that the same was hit by the provisions of M.L.R.
64. The respondent being aggrieved by the aforesaid order of the Assistant Commissioner filed a suit for declaration with permanent injunction. Contention of the learned counsel for the appellant that respondent has to challenge the consent decree by way of filing appeal before the District Judge. It is settled proposition of law that even stranger can file the appeal as the principle laid down by the Hon'ble Supreme Court in H.N. Saya & Company's case PLD 1969 SC 65. The respondent has filed the suit for declaration on 10-12-1968. It is also settled proposition of law that before the insertion of subsection 2 in section 12 of the C.P.C., a person who proposed to challenge a decree on the ground of fraud could do so by filing a separate suit. I am fortified by the judgment of this Court in Muhammad Siddique's case PLJ 1981 Lahore 301. Therefore, respondent has two remedies either to file suit or appeal against the judgment and decree, dated 14-6-1967. By virtue of paras.25 and 27 of M.L.R. 64, Civil Court has no jurisdiction to take cognizance of the matter as the principle laid down by the superior Courts in the following judgments: PLD 1966 SC 229 (Jhananda's case).
PLD 1992 Lah. 158 (Sadiq Ali's case).
1968 SCMR 667 (Nasir Ahmad Khan's case).
' The aforesaid cases are distinguished on facts and law. It is admitted fact that predecessor-in- interest of the appellant sold the land by one sale-deed to the respondents and his maternal grand son. The predecessor-in-interest also obtained collusive consent decree against his maternal grand son on 14-7-1967. Respondent has basically challenged the aforesaid decree in the suit for declaration and permanent injunction on the ground of fraud and misrepresentation.
Therefore, paras.25 and 27 do not attract in the present case on the well-known principle when a basic order is result of fraud and misrepresentation. The super structure shall have to fall on the ground automatically. I am fortified by the judgment of the Division Bench of this Court in PLD 1982 Lahore 1 and the law laid down by the Hon'ble Supreme Court in PLD 1960 SC 113. In case the contention of the appellant's counsel is accepted in toto that sale-deed, dated 21-1-1967 consists of 2 independent sale-deeds. Even then there is no violation of Martial Law Regulation 64 as the principle laid down by the Division Bench of this Court in Ghulam Mehr's case PLD 1974 Lahore 520.
The relevant observation is as follows: "We are of the view that they did not render the whole transfer as void but only that bit of land by which the substance holding was reduced." and the same was replied by the Division Bench in para.8 in the following terms: "As regards the point at (e) in para.3 above, we have, after some elaborate discussion, already held in Writ Petition No,845 of 1973, entitled Ghulam Mehr v. Chief Land Commissioner etc. Decided today that the invalidity referred to in various sub-paras. Of para.25 of M.L.R. 64 of 1959 is only vis-a-vis that portion or fraction of area by which the balance holding of an alienor is reduced from the limit below which he could not be permitted to reduce the same and does not render the entire transaction as void. In the instant It is pertinent to mention here that the judgment of the Division Bench was approved by the Hon'ble Supreme Court. This proposition was later on considered by the ' Division Bench in Zulfiqar Ali Khan's case PLD 1975 Lahore 158 and formulated five points including the following points: "that in any case the whole of the transaction could not have been set side and only so much of the area by which the balance ih the hands of the husband fell short of the economic holding should have been considered as invalid transferred. The economic holding was 400 Kanals, whereas the balance left with the husband was 239 Kanals. It was submitted by the learned counsel that the sale to the extent of 161 Kanals should have been held as invalid with the result that so much area, from the area transferred to the wife should be deducted and added to the area left in the hands of the husband," husband was required to keep an area of 400 Kanals with him but he kept only 239 Kanals i,e,, 161 Kanals less. If the vendee was willing to maintain the bargain at the same price but with area reduced by 161 Kanals (which will be added back to 239 Kanals of the husband so as to make good his holding of 400 Kanals) then the sale to that extent in the name of the vendee could be maintained. In this way the vendee would get not 808 Kanals and 10 Marlas but only 647 Kanals and 10 Marlas. If the parties so desire they can move the learned Additional Chief Land Commissioner in that respect who will deal with the matter in accordance with law. The writ petition is disposed of with these observations."
' In view of what has been discussed above, this second appeal has no merit and the same is dismissed. e.