2000 PLP 1061 (SCMR)

SH. RIAZ AHMED,. J.

Leave to appeal is sought against the judgment dated 10-5-1999 delivered by a learned Judge in Chambers of the High Court whereby a revision petition filed by the petitioner assailing the judgment and decree passed by the Civil Judge as well as the Appellate Court, was dismissed..

2. The facts in brief are that one Karam Elahi son of Maseeta, father of the plaintiff and the defendant Abdur Rashid was owner of the land measuring 23 Kanals, 11 Marlas and a house described in the suit situated in village Gorali, Tehsil Gujrat. Karam Elahi died on 8-1-1980, and thus, his estate devolved upon the plaintiff and defendant No. l being the legal heirs. Abdur Rashid inclusion with his wife Mst. Hamida defendant No.2 in the suit, allegedly prepared an agreement, dated 3-1-1970 in respect of the suit land to the extent of 8 Kanals in Khasra No.997. It was alleged that through this agreement late Karam Elahi had gifted the property to Mst. Hamida his daughter-in-law. Mst. Hamida also obtained a decree for permanent injunction in her favour by instituting a suit against her own husband. Abdur Rashid. This decree was obtained on 4-6-1976 arid a mutation was also attested in this behalf on 8-1-1980. The plaintiff -respondent then instituted a suit for declaration to the effect that said agreement, decree and mutation were void being fraudulent, and thus, ineffective on their rights. It was further averred in the plaint that Abdur Rashid had committed this fraud while Karam Elahi was alive and the decree was obtained from the Court of the Civil Judge at Gujranwala though the property was situated in Gujrat. On the pleadings of the parties issues were framed and after recording the evidence the learned Civil Judge decided all the issues in favour of the respondent-plaintiff, and thus, the suit was decreed.

3. In the High Court it was argued that the learned trial Judge while passing the decree at Gujrat had no jurisdiction to nullify the decree passed by a Civil Judge at Gujranwala and the proper course for the respondent -plaintiff, would have been to file an application under section 12(2), C.P.C. The argument was repelled because the learned Judge rightly arrived at the conclusion that this was a case of patent fraud as the agreement relied upon by the petitioner had not seen the light of the day. The said agreement had not been produced anywhere even in the Court at Gujranwala, which had passed the decree. The learned Civil Judge .as well as the Appellate Court gave concurrent findings as to the patent fraud having taken place. The factum of gift could not be established and even in the written statement a technical objection was raised without raising a plea of gift in favour of the petitioner.

4. For the foregoing reasons, we are of the view that the conclusions arrived at by the Courts below are not open to exception. Hence we do not find any merit in this petition. The same is hereby dismissed and leave to appeal is refused. Q.M.H./M.A.K/A-25/S Petition dismissed.