1973 PLP 261 (SCMR)

HAMOODUR RAHMAN, C. J.‑--One, Walia, the predecessor‑in -interest of the present petitioners, was an occupancy tenant in respect of 30 kanals and 12 marlas of land situated in Khasra, Nos. 1525,1741,1742 and 2296 in village Jarid of the Mansehra tehsil under the predecessors‑in‑interest of the respondents. In 1950 when the N.‑W. F. P. Tenancy Act came into force, Walia became the owner of half of the aforesaid land. Thereafter, the owners and Walia partitioned these lands between themselves by mutation No. 1614 attested on 23‑11‑1953 on the statements of the parties. According to this mutation 17 kanals and 4 marlas of land went to Walla and only 13 kanals and 8 marlas to the owners. Even so, Walia was not satisfied with this partition and he went up in appeal to the Collector. Before the Collector both parries were represented by counsel and there due to the good offices of one, Subedar Sharifullah Khan, a compromise was brought about and a written petition of compromise was put in signed by the counsel for both the parties. According to this compromise the land given to the original owners under the partition was given to Walia and the lands given to Walia by the partition were given to the original owners this compromise was given effect to by two mutations bearing Nos. 2388 and 2389, which were entered and attested on 13‑10‑1955. The matter rested there during the lifetime of Walia. He died in 1962. Thereafter, his heirs on the 31st of October 1964, filed a suit against Khoidad, one of the surviving owners, and the heirs of Maqbulur Rahman, the other co‑owner, for a declaration that the compromise and the subsequent mutations attested on its basis were void and ineffective being the result of fraud practised by Maqbulur Rahman and Khoidad on Walia. The trial Court dismissed the suit but on appeal the District Judge, Hazara, reversed the decision of the trial Court and held that the exchange was brought about as a result of fraud practised on Walia, and that the suit was within time. On second appeal, a learned Single Judge of the Peshawar High Court reversed the decision of the District Judge and restored that of the trial Court holding that the District Judge had based his findings on no evidence at all. The main ground on which the fraud was sought to be substantiated was that Walia had entered into the compromise due to the false representation of the original owners, Maqbulur Rahman and Khoidad, to the effect that the residential kotha v of Walia had fallen to their share according to the mutation of partition entered on the 23rd of November 1953, but for this misrepresentation Walia would not have agreed to enter into the exchange brought about by the compromise. The learned Judge in the High Court summoned the record of the appeal filed by Walia himself before the Collector and on its examination came to the conclusion that Walia had never raised any dispute regarding any house or complained of any misrepresentation by either Khoidad or Maqbulur Rahman. Indeed, Walia who lived for many years after 1955, when the disputed exchange mutations were attested, never took any action for the cancellation of these mutations. The Jamabandis for 1960‑61 also showed that there was a house situated in Khasra No. 174 t/ 2 which had gone to Walia, as, according to the state ment of Subedar Sharifullah, Walia wanted the same. There was nothing on the record, therefore, to suggest that any fraud had been practised on Walia. The High Court also came to the conclusion that the suit was barred by time under Article 95 of the Limitation Act, as there was no evidence to show as to when the plaintiffs had come to know of the alleged fraud. Learned counsel appearing for the petitioners has reiterated these contentions regarding fraud and misrepresentation but we find no substance in any of them. He has also contended that 2 kanals of land receivable under the compromise deed had not been given to them, but this can hardly be a ground for having the entire compromise declared null and void. If any lands are still receivable by the petitioners under the compromise, they should take steps to recover the same on the basis of the com promise and not by having the compromise set aside. For the reasons given above we find no substance in this petition which is, accordingly, dismissed. Petition dismissed.