P L D 2006 Lahore 181 (PLP)

MIAN SAQIB NISAR, J.

Jehan Khan, the predecessor-in-?interest of the parties, admittedly was the owner of the land measuring 40 Kanals and 12 Marlas (the suit-land); his son Khushi Muhammad respondent No.2, filed a suit on 4-10-1978, claiming that his father had gifted the land to him; the suit was allegedly conceded by Jehan Khan, the next day i.e. 5-10-1978 and thus the decree dated 7-10-1978 was passed. On the basis of this decree, the mutation of gift dated 31-1-1981, was sanctioned in favour of the respondent No.2. Anyhow, on 30-10-1993, the petitioners, who are the widow and daughters of Jehan Khan and step-mother and sisters of the respondent No.2, brought an application under section 12(2), C.P.C. challenging the decree dated 7-10-1978 by alleging therein that Jehan Khan had never appeared in the Court to admit the claim of respondent No.2 regarding the gift and therefore, the consent decree obtained in him on 7-10-1978 is fraudulent and result of misrepresentation and impersonation. This application was resisted by respondent No.2; issues were framed; parties were put to trial and the learned Civil Judge, vide order dated 16-12-1999, while holding that the application under section 12(2), C.P.C. is not barred by time, because it has been filed within time after attaining the knowledge of the alleged decree dated 7-10-1978, and that the respondent No.2, has not been able to prove that it is Jehan Khan, who appeared before the Court on 5-10-1978 and made a conceding statement, therefore, as the decree has not been proved to have been validly passed, rather is tainted with fraud and misrepresentation, therefore, the application under section 12(2), C.P.C., was accepted and the judgment and decree dated 7-10-1978 was set aside.

2. Against the above, respondent No.2, preferred a revision petition, which has been accepted and the findings of the learned trial Court on the issue of limitation as also on facts, have been reversed and the application under section 12(2), C.P.C. of the petitioners, has been dismissed. On the question of limitation, the learned revisional Court, has held that at the best, the petitioner came to know about the decree in August, 1993, when an attempt was made by the respondent No.2, to dispossess them from the land in question, whereas, the application was filed on 30-10-1993 and therefore, the delay of three months has not been explained, whereas, it is required by the law to explain the delay of each day; no application under section 5 of the Limitation Act, has been filed and resultantly, the application under section 12(2), C.P.C. was barred by time.

3. I am afraid, the learned revisional Court has not kept in view the provisions of section 18 of the Limitation Act. It is the case of the petitioners that the decree was procured fraudulently and by misrepresentation and their predecessor Jehan Khan and they were kept in dark about the passing of the decree in a fraudulent manner, thus according to the above section, the period of limitation, which is prescribed for filing an application under section 12(2), C.P.C. under Article 181, shall commence when the petitioners attained the knowledge A in August, 1993, thus the application has been filed within the period of the limitation and the petitioners were not supposed to explain why the application was not filed within the prescribed period; however, if the period of limitation has expired as no case under section 18 was made, then obviously the application under section 5 of the Limitation Act, if applicable to such cause, should have been moved by the petitioner. The view taken by the learned revisional Court is absolutely misconceived and illegal.

4. As regards the merits of the case are concerned, respondent No.2, is the beneficiary of the decree dated 7-10-1978 and also of the alleged gift; there is no independent evidence led by him, as to when, his father Jehan Khan and in whose presence, had gifted the suit property to him. Be that as it may, the suit was filed on 4-10-1978, whereas the next day i.e. 5-10-1978, Jehan Khan appeared before the Court and made the conceding statement and thus the suit was got decreed on 7-10-1978. It is not established through any independent evidence, if Jehan Khan was the person, who appeared before the Court on 5-10-1978 and made the statement by conceding the suit of respondent No.2.

5. The argument of the respondent's side that the Finger Print Expert has given the positive report about the thumb-impression of Jehan Khan affixed on his statement dated 5-10-1978 before the Court, suffice c it to say that such report has not been tendered into the evidence; the expert was not examined for the purpose of enabling the petitioner to have an opportunity to cross-examine him, therefore, such report has no legal value.

6. As far as the view of the learned revisional Court that the petitioner No.1, in her statement before some local commission, has conceded about the knowledge of gift, suffice it to say that when the said petitioner appeared as A.W.1 in this case, she has not been confronted with her earlier statement to explain her position as required under Article 140 of the Qanun-e-Shahadat, 1984, therefore, such deposition made before the local commission, which was only to undertake the task of the local inspection and was never appointed with an object to record the statement of the parties, so as to be made part of the evidence for the purpose of adjudication of the questions involved in this case, cannot be used against the petitioners. It may be reiterated that for the purpose of proving a valid gift, particularly about the declaration, acceptance, consideration and delivery of possession, as the respondent No.2, is the beneficiary of the transaction, therefore, it was his duty to prove that a valid gift was made by his father in his favour, which was acknowledged by him in the suit, but I am afraid that no worth-mentioning positive, evidence has been brought on the record by the respondent No.2, particularly it is highly doubtful on the basis of the records, if the possession was delivered to the respondent No.2 under the gift, which is a sine qua non for the validity thereof.

7. There is another important feature of the case that the mutation in this case was not immediately attested on the basis of the alleged decree dated 7-10-1978, but after about three years i.e. on 31-1-1981; F even at the time of the attestation of the mutation, Jehan Khan is not shown to be present, rather the mutation was attested on the basis of the decree dated 7-10-1978 alone. Be that as it may, as I do not find that the learned revisional Court has given valid reasons on the issue of limitation and also on merits, which can be taken validly for upsetting the decision of the learned trial Court, which is well-reasoned, and an adjudication made in accordance with law; therefore, the order of the learned revisional Court cannot sustain, which is declared to be without lawful authority and of no legal effect and that of the learned trial Court dated 16-12-1999 is upheld. It may, however, be observed that even after the acceptance of application under section 12(2), C.P.C., the suit of respondent No.2, which was decreed on 7-10-1978, shall be deemed pending; petitioners can be impleaded as party to the suit in place of Jehan Khan, who has died and it shall be decided on its own merits; anyhow, any observation made in this judgment, however, shall cause no prejudice to the rights of the respondent No.2. This petition is accordingly allowed. S.A.K./R-3/L?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.