CH. IJAZ AHMAD, J. -- Brief facts out of which the present revision petition arises are that Faqir Muhammad predecessor-ininterest of the petitioners and respondent No. 1 were the real brothers.
They were owners of the land measuring 13 kanals, 10 marlas in Sambrial in two equal shares situated in khasra Nos. 9693 and 9673. Faqir Muhammad predecessor-in-interest of the ex-partes and Rehmat All respondent N. 1 executed partition deed on 19.4.1983, inter se. Partition deed reveals specific khasra numbers were allocated to each of them i.e. Khasra No. 9693 was allocated to the predecessor-in-interest of the petitioner Faqir Muhammad and Khasra No. 9673 to Rehmat All respondent No. 1. In the khata of the said share-holders some other persons were also share- holders from whom predecessor-in-interest of the petitioners Faqir Muhammad purchased their share through registered sale-deed dated 25.6.1986 and mutation was also sanctioned to this effect on 21.6.1989. Khasra No. 9693 measuring 2 kanals is in dispute between the parties.
Predecessorin-interest of the petitioner claimed the said khasra number was given to him by virtue of partition deed dated 19.4.1983 but Rehmat All respondent No. 1 sold the area of 1 kanal, 7 marlas in favour of Muhammad Sharif respondent No. 2. In consideration of Rs. 1,00,000/- vide registered sale-deed dated 27.8.1986. The mutation was also sanctioned on the basis of the aforesaid registered sale-deed on 14.1.1987. Predecessor-in-interest of the petitioner claimed that the said khasra number belonged to his share and the same was in his possession and respondent No. 1 Rehmat All was not competent to sell the same. Petitioners predecessor-in- interest Faqir Muhammad filed a suit for permanent injunction and possession regarding the disputed khasra number on 31.10.1988. Respondent No. 1 filed consenting written statement whereas respondent No. 2 filed contesting written statement. Out of the pleadings of the parties the Trial Court, framed the following issues:
(i) Whether the sale-deed dated 27.8.1986 and mutation No. 2190 is illegal, null and void and thus is ineffective upon the rights of the plaintiff and defendants Nos. 7, 8, and 9? OPD 7, 8, and 9.
(ii) Whether the suit is not maintainable in its present form? OPD (i.e) Whether the suit is under valued for the purpose of Court-fee. If so, its effect? OPD
(iv) Whether the plaintiff has no cause of action and locus standi? OPD
(v) Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD
(vi) Whether the description of the suit property has been described incorrectly. If so, its effect?
(vii) Whether the plaintiff has not come to the Court with clean hands? OPD
(viii) Whether this Court lacks jurisdiction to try this suit? OPD
(ix) Whether the plaintiff has not thumb-marked the plaint and Vikalat Nama, etc.? OPD
(x) Whether the suit is frivolous and the defendants are entitled to special costs u/s. 35-A, CPC. If so to what extent? OPD.
(x.A) Whether the suit is time-barred? OPD (x..B) Whether the defendant No. 2 is a bona fide purchaser with consideration and without notice?
OP. (x.C) Whether the defendant No. 2 has improved the suit property. If so, with what amount and with what effect? OPD (x.D) Whether this suit is collusive between the plaintiffs and defendant No. 1? OPD 2
(xi) Relief.
The Trial Court decreed the suit vide judgment and decree dated 27.4.1992. Respondents being aggrieved filed appeal before the Addl. District Judge, Daska who accepted the same vide judgment and decree dated 26.2.1996. Learned counsel submits that judgment of both the Courts below are at variance. He further submits that the first Appellate Court did not advert to the reasoning of the Trial Court. He further submits that judgment of the first Appellate Court is result of mis-reading or non reading of the record. He further submits that the first Appellate Court was erred in law to take into consideration written statement filed by respondent No. 1 in another suit and that was not placed on record in accordance with law. He further submits that the suit was,not filed collusively by predecessor-in-interest of the petitioner with respondent No. 1. It is a matter of chance that predecessorin-interest of the petitioner and respondent No. 1 was real brothers. He further submits that possession of the land is still with the petitioners and this fact was not noted by the first Appellate Court. He further submits that respondent No. 2 is not a bona fide purchaser as respondent No. 2 did not get permission from the predecessor-in-interest of the petitioners before purchasing the land in question. He further submits that petitioners produced documentary evidence to show that the suit was not filed by the predecessor-in-interest collusively with respondent No. 1. Predecessor-in-interest of the petitioner has also placed evidence on record that respondent No. 2 did not purchased the land in good faith as the respondents failed to bring on record sufficient evidence to get the benefit of Section 41 of the Transfer of Property Act as the ingredients of Section 41 is not attracted on the basis of the evidence on record. He further submits that the first Appellate Court rejected the partition deed without any justification which is result of mis-reading or non reading of the record.
2. Learned counsel for respondent No. 2 submits that learned counsel for the petitioner failed to point out any piece of evidence which was mis-read by the first Appellate Court. He further submits that the first Appellate Court gave finding of fact against the petitioner after proper appreciation of evidence that the suit filed by the predecessor-in-interest of the petitioner collusively with respondent No. 1. He further submits that the first Appellate Court after proper appreciation of evidence gave finding of fact against the petitioner that respondent No. 2 has purchased the land in question from respondent No. 1 after proper appreciation of evidence and after informing and checking the revenue record. Learned counsel for the respondents stated that possession of the land in question is with them. He summed up his arguments that partition deed was rightly rejected by the first Appellate Court after proper evidence on record. He further submits that predecessor-in-interest of the petitioner failed to bring on record any evidence that the sale-deed executed by respondent No. 1 in favour of respondent No. 2 is result of fraud or misrepresentation.
3. Learned counsel of Legal representative of respondents Nos. 8 and 9 adopted the arguments of 'the learned counsel for respondent No. 2 and submits that respondents purchased the land from respondent No. 2 with consideration through registered sale-deed and the judgment of the first Appellate Court is valid as the first Appellate Court has given finding of fact against the petitioner on the aforesaid issues after proper appreciation of evidence.
4. Learned counsel for the petitioner in rebuttal stated that the judgment of the first Appellate Court is not sustainable in the eyes of law as the first Appellate Court did not advert to the reasoning of the Trial Court and is result of mis-reading or non reading of the record. He further stated that respondents purchased the land in question from the father of the petitioner.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. The first Appellate Court has given finding of fact against the petitioner after proper appreciation of evidence that suit was filed by the predecessor-in-interest of the petitioner collusively with his brother respondent No. 1 as is evident from his written statement that he had filed consenting written statement and admitted in written statement that partition deed was executed between the two brothers on 19.4.1983, but respondent No. 1 did not filed consenting written statement in a -similar suit filed by the predecessor-in-interest of the petitioners regarding similar transaction. Copy of the plaint with the said suit and written statement were exhibited without objection as Ex.D-7 and D-8. The contents of the written statement reveal that respondent No. 1 denied the existence of any partition deed. This fact brings the case in the area that it was filed collusively by the predecessor-ininterest of the petitioner with respondent No. 1. Even otherwise the conduct of respondent No. 1 is also of such a nature that his statement was rightly not believed by the first Appellate Court coupled with the fact that respondent No. 1 did not challenge the illegality and propriety of the registered sale-deed. The contents of the sale-deed clearly reveals that Rehmat Ali respondent No. 1 had sold the land in question with consideration of Rs. 1,00,000/- to respondent No. 2. It is pertinent to mention here that respondent No. 1 got registered a sale-deed while appearing before the Sub-Registrar and received the consideration amounting to Rs. 100,000/- before the Registrar. As mentioned above respondent No. 1 did not challenge the validity or illegality of the sale-deed that he did not appear before the Sub-Registrar and the sale-deed was not registered in his presence. It is by now well- settled that registered documents has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness as per principle laid down by the Hon'ble Supreme Court in Mirza Muhammad Sharif Vs. Mst. Nawab Bibi (NLR 1993 S.C. 148). It is pertinent to mention here that there is no evidence worth the name on the file to show that the sale-deed was forged and fictitious.
Therefore, Rehmat Ali is estopped by way of his conduct to take any exception qua the registered sale-deed on the well-known principle of approbate and reprobate., In arriving this conclusion I am fortified by the judgment of the Hon'ble Supreme Court in Ghulam Rasool's case (PLD 1971 S.C. 376).
First Appellate Court has also reversed the finding of the Trial Court after proper appreciation of evidence that partition deed was not genuine on the following reasons:-
(i) Partition deed was executed on 19.11.1983.
(ii) Neither its executant nor its marginal witnesses or its scribe appeared in the witness-box to prove the execution of the partition deed.
(i.e) The other share-holders also did not attest the same.
First Appellate Court has given finding of fact against the petitioner in the following terms:- "I am of the view that in the first place, the partition-deed has not been proved on the file and secondly, on account of the absence of the other co-sharers as a party to the said document, this document has got no legal effect and it cannot be used against Muhammad Sharif, the vendee, who is bona fide purchaser."
It is pertinent to mention here that during this litigation respondent No. 1 made no efforts whatsoever, to annul acts performed in result of aforesaid sale-deed. Therefore, first Appellate Court was justified to give benefit of Section 41 of the Transfer of Property to respondent No. 2 as per rule laid down by the superior Courts in arriving to this conclusion I am fortified by the judgment of the Peshawar High Court PLD 1984 Peshawar 278. This fact alone is sufficient to come to a conclusion that predecessor-in-interest of the petitioner and respondent No. 1 filed suit with collusion. Collusion means in judicial proceedings was a secret arrangement between two persons that one should institute, a suit against the other in order to obtain the decision of a judicial Tribunal for some sinister purpose as per principle laid down by the superior Courts in the following judgments:-, 1991 CLC 553 (Iqbal Vs. Mst. Jennan Bib,) 1986 CLC 2655 (M.A. Khan Vs. S. Khan)
PLD 1984 Lahore 396 (Zafrullah Vs. Civil Judge, Hafizabad).
PLD 1982 Peshawar 172 (Rauf Vs. A.R. Khan)
As regards the findings of the learned Addl. District Judge on the aforesaid issues, it may be noticed that in his capacity a Appellate Court, the learned Addl. District Judge possess the jurisdiction to come to its on conclusion, on the basis of evidence adduced before the Trial Court, by the parties and resultantly, he could competently reversed the finding of the Trial Court on the question of fact involved in issues. It is established proposition of law that finding on question of fact or law, howsoever erroneous the same may be recorded by the Court and competent jurisdiction, cannot be interfered with by the High Court, in exercising of its revisional jurisdiction u/s. 115, CPC, unless such findings suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Pricy Council in N.S. Venkatagiri Ayyangar and another Vs. The Hindu Religious Endowmnents, Board, Madras (PLD 1949 P.C. 26).