P L D 2002 Lahore 170 (PLP)

(1) Whether the plaintiffs are the successors-in-interest of Sharif Khan son of Allah Din, Darkhan of Otar Singh, Tehsil Pakpattan i.e., the transferee of the suit-land? OPP. (2) Whether said Sharif Khan died on 28-3-1968 or before 16-1-1969 and thus the decree in favour of Baggu, the predecessor-in-interest of the defendants was the result of fraud? OPD. (3) Whether the suit is time-barred? OPD. (4) Whether the plaintiffs are estopped by their conduct to file the suit? OPD. (5) Whether the suit has been filed at the instance of Muhammad Nawaz of Gohar Wala? OPD. (6) Whether the defendants are entitled to special costs; if so, to what amount? OPD. (7) Relief? The trial Court afforded again opportunity -to the parties to produce the evidence. On consideration of the evidence, it was found by the learned trial Court that the respondents/plaintiffs were successors-in-interest of Muhammad Sharif; that Muhammad Sharif had never entered into any sale transaction of the suit-land with Baggu who had died on 28-3-1968 and the consent decree dated 16-1-1969 had been obtained fraudulently and was ineffective qua the rights of the plaintiffs; that the suit for possession was brought by the respondents/plaintiffs within 12 years which was within limitation; that the respondents/plaintiffs were not in any way estopped by their conduct to bring the suit or that the same was, filed at the behest of one M4hammad Nawaz. The suit was accordingly decreed on 12-2-1984.

3. On appeal, filed by the petitioners, the question that assumed importance before the Appellate Court (before this Court even) was as to whether Muhammad Sharif the predecessor-in-interest of the respondents had disposed of the land in favour of Baggu, predecessor-in-interest of the petitioners. On perusal of the original file of the suit (Baggu v. Sharif Khan No.6/69) in which the consent decree was claimed to have been obtained by Baggu, the learned Additional District Judge observed that "A perusal of the faint and the other documents through which a consent decree was granted shows that address and caste of Sharif Khan was given as that of R.L.II and the suit was instituted on 14-12-1968. Thereafter case was decreed through a statement ostensibly recorded on .15-1-1969. A perusal of Exh.P.2 makes it clear that the tile was taken out of the record uefore the due date and statement of some Sharif Khan defendant alongwith counsel for the plaintiff was recorded. Thumb-impression of Shairf Khan was obtained but without any identification as to whether he was the same person who was owner of the land in question. The very fact that statement was recorded on a date other than the date fixed for summons and the fact that there was no attestation of any person about Sharif Khan is sufficient to show that no proper care was taken to arrive at the conclusion that the actual owner/defendant had appeared for making statement. Be that as it may, the other relevant facts which are visible from the record are that in the R.L.II as well as in the plaint address given was Autar Singh Wala, Tehsil Pakpattan but in Exh.P.3 a copy of Jamabandi for the year 1970-71 address of Sharif Khan was that of Chak No. 175/9-L, Tehsil and District Sahiwal. A mutation was also got sanctioned on, the basis of the consent decree vide Exh.P.5 and the address in that document was also of 175/9-L, Tehsil and District Sahiwal. I fail to understand as to why the address on which Sharif Khan was actually residing was trot given in the plaint. Oral evidence indicates that Sharif Khan was not residing at the plate which was given in the plaint. The important point for consideration is, as to whether at the relevant tithe of grant of decree Sharif Khan was alive or not. In this respect copy of death certificate has been placed on record as Exh.D'

3. This document indicates that Muhammad/Sharif died on 28-3-1968 and his death was recorded on that very date. In order to prove that he had died on the above said date P.W.1 to P.WA have appeared and have also examined Samander Khan, Muhammad N;twaz and Munir Lumberdar. A copy of death register as Exh.P. 6 has been also put in support of the fact". It was further found that "it becomes quite crystal clear that Sharif actually died in the year 1968 when he was residing in Yaqoob Abad and he was not Mughal Darkhan but Joyia by caste and Darkhan by profession". Taking the view that a suit for possession cold be tiled within a period of 12 years it was found to be within limitation. He accordingly affirmed the findings of the trial Court and dismissed the appeal.

4. The learned counsel for the petitioners assails the correctness of the finding and conclusion drawn by the two Courts below that the same are not borne out by the evidence on record.

5. Although findings of fact recorded by the Courts below concurrently are ordinarily treated conclusive as to their correctness, yet in order to satisfy that the same are based on correct and proper consideration and appreciation of the evidence, the learned counsel for the petitioners was given opportunity to read out the evidence. I had also sent for the original suit file titled "Baggu v. Sharif Khan" (Sluit No. 6/69) in which the consent decree was obtained on the basis of the alleged compromise. It is apparent therefrom that no steps for proper identification of the person appearing before the Court were taken. The suit concerned with a valuable property which was disposed of on a date which was not the date of hearing of the suit. It may be noted I that the suit had been fixed for 7-3-1969 but was taken up on 15-1-1969 on 13 the application of Baggu, the plpintiff therein. Sharif was not represented by any counsel even. The decree was manoeuvred by adopting devious means and was clearly tainted with fraud, forgery and impersonation. In arriving a such a finding the Courts below have neither committed any illegality nor material irregularity.

6. The learned counsel for the petitioners has contended with emphasis that the suit was time-barred and should have been dismissed for that reason. According to him, Article 95 of the Limitation Act would have been applicable. Reliance has been placed on Kaliprasanna Sinha and others v. Haripada Ghosh Hajra and others AIR 1931 Calcutta 69 and Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197.

7. On the other hand the contention of the learned counsel for the respondents is that the respondents/plaintiffs had been victim of fraud; they could not be deprived of the property on the basis of the decree which was void ab initio; the suit filed within, 12 years of the alleged decree was within limitation. According to him, a compromise decree stands on somewhat different footing than an ordinary decree which derives its sanctity from the compromise itself; and that no question of limitation arises when the transaction, order or decree is void ab initio. Reference has been made to Hossain Ali Khan v. Firoza Begum PLD 1971 Dacca 112, Riaz Hussain v. Mazaray Khan 1988 CLC 1129, Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612. Mst. Rehmat Bibi and others v Pannu Khan and others 1986 SCMR 962 and Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782.

8. In the case of Kali Prasana (surpa) referred to by the learned counsel for the petitioners there appears some observation that when a person is prima facie- bound by a fraudulent decree he cannot by suing ostensibly simply for possession ignore that decree and thereby evade the operation of Article 95; and where there is such a decree standing in the way of the plaintiff obtaining relief which is inconsistent with that decree, he must first of all bring his suit within the period prescribed by Article 95 in order to get the decree out of the way. To put it in other words; the plaintiff cannot simply ignore the decree which denies his title and sue for possession on the basis of title so long as that decree is subsisting. Where a decree has been made with jurisdiction and in the presence of the plaintiff that decree would be voidable on the ground of fraud; but it must be avoided; otherwise if the decree could be ignored altogether there would be no purpose in the first part of Article 95". The underlined portion would show that the presence or non presence of the person would assume importance in treating the decree as void or voidable. Kaliparasana case (supra) was referred and considered in Mst. Sheedi v. Muhammad Siddique and 2 others PLD 1980 Lahore 477 which case has somewhat identical features. In Sheedi's case (supra) a consent decree was passed on 30-7-1954 and suit for possession was filed on 22-10-1969 which was later withdrawn and refiled on 18-1-1973. The suit was dismissed by the Courts below that the same was barred under Article 95 of the Limitation Act. In the second appeal, tiled before this Court by Sheedi, it was held that "Where the plaintiff is not a party to the decree or to the fraudulent transaction this Article (Article 95) will have no application". It was further observed with reference to the case-law on the subject that, "for, so long as a person is not actually a party to plaintiff is not a party to the decree or to the fraudulent transaction this Article (Article 95) will have no application". It was further observed with reference to the case-law on the subject that "for so long as a person is not actually a party to a document or to a decree, he will not be bound by it and for this reason it would be unnecessary for him to get it cancelled. His purpose will be served if he merely gets it declared void. The case of a person who was impleaded as a party in a suit and who was impersonated by somebody else and a decree was passed on the basis of this impersonation would not be different from the case where a t)erson is not a party to a suit at all. It is not a case of fraud because fraud involves the finding of the plaintiff having done something under the influence of fraud. It would involve actual participation of the party defrauded by the passing of the decree. In the absence of such participation it may be a case of impersonation or a matter of fraud on the Court passing the decree but not a case of fraud as such on the plaintiff. Article 95 would not apply to such a case". It was further held that where a person is found to have "never appeared in Court or never gave consent the case would not be governed by Article 95". The judgments of the two Courts below were accordingly set aside on the point of limitation. In Mst. Izzat v. Allah Ditta PLD 1981 SC 165 also similar view was taken as to the application of Article 95 of the Limitation Act. In the present case, there are concurrent findings that Muhammad Sharif had died on 28-3-1968, before even the filing of the suit, how he could have thus appeared before the Court or confessed any judgment. Such a decree was void ab initio. Reading of the plaint in particular paragraphs Nos.4, 5, 9 and 10 which were denied simply without more in the written statement would establish the accrual of cause o action for tiling of the suit by respondents/plaintiffs. The suit was thus within limitation and rightly found to be so by the Courts below. As a result of the above, there exists no valid justification to interfere with the concurrent findings recorded by the Courts below. The revision petition is thus dismissed. No order as to costs. Q.M.H./M.A.K./A-382/L Petition dismissed.