IFTIKHAR MUHAMMAD CHAUDHRY, J.--- In this case leave to appeal has been sought against judgment dated 16th November, 1998 passed by Lahore High COurt, Multan Bench, Multan whereby Civil Revision No 835-D/1995 filed by petitioner was dismissed.
2. Precisely stating facts giving rise to instant petition are that as back as October 11, 1989 respondent Ghulm Sughran daughter of Ghulam A.I filed a suit against her real sister i.e. Ghulam Fatima (petitioner-defendant) for declaration claiming title to the land subject-matter of the proceedings measuring 21 Kanals situated in Basti Habib, Tehsil Taunsa, District D.G. Khan. As per averments of the plaint she was married to one Allah Bakhsh who gave her severe beatings due to which she admitted in hospital and during that period one Sardar Khan persuaded her to believe on basis of forged and fictitious deed of divorce that her husband Allah Bakhsh.Had divorced her.
Later on when she was discharged from hospital said Sardar Khan persuaded as well as threatened her, thus married her to Rab Nawaz (brother of Sardar Khan) and on the pretext of marriage with him, she was made to thumb mark certain papers. According to her she lived with Rab Nawaz for 3/4 months, in the meanwhile it was revealed to her that Allah Bakhsh had not divorced her, therefore, she came back and joined him as her husband. However, after 2 or 21/2 years Allah Bakhsh actually divorced her and then she married one Ahmad. In the meanwhile settlement operation of the lands took placed in Taunsa Sharif during course whereof it transpired that the land in dispute which was in the name of petitioner has been transferred in the name of petitioner who happened to be wife of nephew of Sardar Khan. Inquiries further revealed that purportedly she had executed a power-of-attorney in favour of Rab Nawaz who on the strength of the same has gifted her property to Sardar Khan and Sardar Khan then transferred it on the name of petitioner Ghulam Fatima. Therefore, categorically execution of power-of-attorney in favour of Rab Nawaz and subsequent transaction allegedly took place on the basis of same were challenged.
2-A. The petitioner contested the suit inter alia amongst other grounds that the power-of-attorney dated 15th January, 1977 had been assailed by the respondent (plaintiff) in Suit No. 210 of 1977 which was unconditionally withdrawn on 18th April, 1977, therefore, the subsequent suit on her behalf is not competent.
3. Learned trial Court . Dismissed the suit vide judgment /decree dated 16th June, 1993 with the observation that the respondent/plaintiff had appended her thumb impression with her free consent and the suit was barred in law of the earlier suit which was withdrawn by her unconditionally.
4.. The respondent (plaintiff) presented appeal before District Court which was allowed vide judgment/decree dated 28th September, 1995. The Appellate Court made following three observations. In the judgment:-
(i) That original power-of-attorney had not been produced, therefore, the execution of the power- of-attorney was not proved.
(ii) Filing of the previous suit by the respondent (plaintiff) was not established to bar present suit;
(iii) There was no justification for the gift made in favour of his real brother.
5. Petitioner Ghulam Fatima feeling aggrieved from the appellate judgment/decree preferred civil revision before Lahore High Court which has been dismissed vide impugned judgment.
6. Learned counsel for petitioner contended that the suit giving rise to instant proceedings was not competent as earlier suit on the same subject-matter was unconditionally withdrawn by the respondent/plaintiff, therefore, it would mean that she had accepted the execution of power-of- attorney dated 15th January, 1977 in favour of Rab Nawaz. In this behalf it is noteworthy that keeping in view the material available on record learned District Judge (Appellate Court) in respect of the filing of earlier suit, observed as under:- "As there is, no proof regarding Allah Bakhsh having divorced the appellant this Court is of the view that civil suit Exh.D.1 purported to have been instituted by the appellant was so managed and ultimately withdrawn Through an order of the Court Ex.D.2 without the knowledge of the appellant so that the general power-of-attorney can be given an adverse legal force and by managing a fictitious decree from the Civil Court through collusion to give the power-of-attorney a legal cover.
As already mentioned above the burden of proof on account of the illiteracy of the appellant was to be on "'the respondent who was the beneficiary but she did not lead any evidence. This Court has no hesitation in holding that as the civil suit Ex.D/1 which was disposed of by order Ex.D.2 was fictitious and collusive it was not hit by the provision of Order 23, Rule 1, ,CPC."
Learned Single Judge in Chambers of the High Court with reference to above findings recorded by Appellate Court opined that "she appeared in the witness-box and was confronted with the suit she Categorically denied, although forming part of the judicial record yet the plaint in the previous suit was a private document and after respondent had denied it, it should have been proved as having been ,filed by her. Therefore, it is not established that the said suit was filed by the respondent. Thus question of applicability of Rule 1 of Order 23, CPC did not arise."
It may be noted that appellate/revisional Courts concurrently had held that the petitioner/defendant had failed to establish through. Evidence that earlier suit No. 210 of 1977 was instituted by the respondent/plaintiff, therefore, question of fact which has been decided . By learned appellate and revisional Court cannot be gone into because no case of misappreciation and misreading or ignoring important evidence on the point has, been made out. Thus the contention is repelled.
7. Learned counsel next contended that the suit was not competent for non-joinder of necessary parties i.e. The general power of-attorney holders i.e. Rab Nawaz and Sardar Khan who sold this property to petitioner.
It may be noted that in view of the objection in the written statement filed by petitioner (defendant) issue was framed in this behalf being issue No. 9-B but it was not pressed before the trial Court.
Even otherwise no prejudice seems to have been caused to the petitioner because she claims herself to be the exclusive owner of property having been bona fidely purchased by her from Sardar Khan. Moreover non-joinder of parties legally cannot be considered fatal for maintainability of suit in view of provisions of Order 1, Rule 9, CPC which provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may in every suit deal with the matter in the controversy so far as regards the rights and interests of the parties actually before it.
8. Learned counsel next contended that the suit was not competent because petitioner (defendant) is in possession of the property and no consequential relief in terms of proviso to Section 42 of the. Specific Relief Act was claimed, therefore, suit being incompetent on this score was liable to be dismissed. He frankly conceded that no issue was framed in this behalf nor specifically he agitated this point before learned High Court inasmuch as no observations were made by District Judge/Appellate Court. It is also important to add that learned District Judge in the appellate order in fact has observed that if the appellant is not in actual physical possession of the suit land it would not be fatal to her suit because according to Ex.P1 copy of Register Haqdaran the suit land is joint between the parties and other co-owners. Thus in view of such observation we are of the opinion that the argument put. Forth by petitioner's counsel being devoid of force deserves no consideration.
9 No other point was agitated on behalf of petitioner by her counsel .
For the foregoing discussion petition is dismissed and leave to appeal is refused.