2023 PLP 2082 (CLC)

MUHAMMAD FAHEEM WALI, J.

Petitioners through this petition filed under Section 115 of the Code of Civil Procedure (Act-V) 1908 have called in question the vires of Judgment and Decree dated 24.05.2021 rendered by learned Additional District Judge-I, D.I.Khan, whereby their appeal against the Judgment and Decree dated 10.06.2020 of the learned trial Court stood dismissed and thereby the decree passed in favour of respondents/ plaintiffs stood concurrently maintained.

2. Short facts of the case are that respondents/plaintiffs instituted a declaratory suit wherein they challenged mutations No.2832 dated 30.04.1950, 2837 dated 13.02.1950 by contending in the plaint that the great grandfather of the parties namely "Chiragh" was survived by his two sons Ahmad and Malku and two daughters Allah Wasai and Fatima, and accordingly the legacy of said Chiragh was devolved upon his survivors vide inheritance Mutation No.484; but in the inheritance mutation No.2832 in respect of some other estate of said Chiragh, the name of Allah Wasai was wrongly entered as Zainab Bibi and that, by taking benefit of the said wrong entry, Ahmad and Malku got transferred the landed property of Allah Wasai and Fatima through mutation No.2837 although the said ladies had never appeared before the Revenue Officer and had not put their thumb impressions, therefore, mutations Nos.2832 and 2837 and all subsequent transactions are liable to be cancelled being the outcome of fraud. Defendants Nos.1 to 9 contested the suit and learned trial court after framing issues and recoding pro and contra evidence of parties, the learned Civil Judge-XIII, D.I. Khan decreed the suit vide Judgment/Decree dated 10.06.2020. Petitioners/defendants preferred an appeal which too was dismissed by the learned Additional District Judge-I, D.I. Khan, vide Judgment/decree dated 24.05.2021; hence, this Revision Petition by the petitioners.

3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsel, same will be adequately dealt with at appropriate stages in this judgment.

4. A threadbare perusal of the record reveals that petitioners, who claimed to be the successors of Fatima daughter of Chiragh, have challenged the inheritance mutation No.2832 dated 30.04.1950 by contending that the name of Allah Wasai, one of the heirs of Chiragh, was wrongly mentioned as Zainab Bibi. They have also questioned the authenticity of Tamleek mutation No.2837 on the ground that the same was fraudulently entered in favour of Malku and Ahmad to deprive Fatima and Allah Wasai from inherited property of their father. According to petitioners both the said ladies never appeared before the Revenue Office nor impressed their thumbs over the mutation and therefore, mutation No.2837 is liable to be cancelled being fraudulent.

5. It appears from the plaint that plaintiffs are legal representatives of Fatima Bibi. Both the ladies i.e. Fatima and Allah Wasai died much prior to filing of suit. PW-4, attorney of plaintiffs stated in his cross examination that Fatima died in 1980-81 whereas, Allah Wasai died prior to 1999-2000. He further admitted it correct that Fatima had not challenged the impugned mutations during her lifetime. The suit was filed on 09.06.2012 wherein authenticity of mutations entered and attested in the year 1950 has been questioned by alleging the same as fraudulent. A presumption of truth being attached to the record of the year 1950, and legality of more than 60 years' old record cannot be questioned on the basis of oral contention of plaintiffs particularly when the same are only assumptions and presumptions. A heavy burden was lying on the shoulders of plaintiffs to prove their case. The contention of learned counsel for the petitioner that both the mutations did not contain the thumb impressions of the ladies is based on misconception as requirement of vendor or donor to sign or thumb impress the mutation was introduced by the Land Revenue Act, 1967, and a vendor/donor was not required to sign or thumb impress the mutation during the decade of 1950.

6. After the attestation of impugned mutation No.2837, said Malku and Ahmad transferred a chunk of land in favour of their sister Fatima (predecessor of plaintiffs) through Mutation No.2866 dated 18.06.1951 (Ex.P.W.1/D-8) and respondents/plaintiffs never denied this fact nor questioned the said mutation which clearly indicates that respondents/plaintiffs and their predecessors were aware of the distribution of the estate and transfer of property in favour of Malku and Ahmad and then from Malku and Ahmad to Fatima. However, they remained silent and never agitated their purported rights. As mentioned above, Fatima died somewhere in 1980-81 and her successors filed present suit in the year 2012 even after 32 years of the death of their ancestor. Besides, plaintiffs have not proved the date of their alleged knowledge through evidence. As both the impugned mutations were sanctioned in 1950 and the same have been given effect in the record of rights which effect was repeated in all the subsequent Jamabandis and said entries were not challenged by Fatima during their lifetime, therefore, petitioners have no locus standi to challenge the same and there is nothing on the record to indicate as to why they had not challenged the said entries or inheritance mutations. Reliance is placed on the case of "Abdul Haq and another v. Mst. Surrya Begum and others" (2002 SCMR 1330) and "Muhammad Rustam and another v. Mst. Makhan Jan and others" (2013 SCMR 299). Besides, in the case of "Atta Muhammad v. Maula Bakhsh and others" (2007 SCMR 1446) august Supreme Court of Pakistan was of the view that, "findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation." Thus, the suit is badly and hopelessly time-barred as the plaintiffs despite having knowledge did not file the suit after 32 years of the death of their father. Law of limitation is a harsh law and the court cannot award any relaxation in this regard unless provided by the statute itself. The passage of time sets the law of limitation in operation. Reliance is placed on the case of "Umer Baz Khan through Lifts v. Syed Jehanzeb and others" (PLD 2013 SC 268). Guidance derived from the case of "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167). Moreover, this Court in the case titled "Shad Muhammad through L.Rs. and others v. Mst. Sarwara" (2015 MLD 582) had already held: Finally, the petitioners lack 'locus standi' to seek the legacy of Mukaram Khan, as they claim the same through Haider Khan, who during his life time never agitated the said claim. Faced with similar circumstances, the apex Court in Abdul Haq's case (2002 SCMR 1330), has laid down in terms that: - "Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his life time. The petitioners claimed the property through Atta Muhammad as his heirs, who filed the suit as late in 1979 about 9 years after the sanction of mutation, which had already been given effect in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his life time." The aforementioned principle has been consistently followed in other decisions of the apex Court including the case of Ghulam Haider's' case (2008 SCMR 1425).

18. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Civil Procedure Code, 1908 has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5) and held that:-- "The High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC

26. With regard to section 115, C. P.C. it is observed by the Privy Council as under-- (i) This section empowers the High Court to satisfy itself upon three matters:-- (a) That the order of the subordinate Court is within its jurisdiction. (b) That the case is one in which the Court ought to exercise jurisdiction. (c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."

7. Respondents/plaintiffs have alleged fraud in the attestation of impugned mutations in their plaint, yet no particulars of fraud, required to be mentioned in the plaint in accordance with Order VI, Rule 4 of the C.P.C., have been given. It is well settled that the burden of proving fraud lies on the party alleging it. Fraud and forgery must be proved by producing unimpeachable, impartial and confidence-inspiring evidence. Mere allegations in the pleadings cannot partake proof required under the law. Reference in this regard may be made to the judgments in the cases of "Ahsan Ali v. District Judge" (PLD 1969 SC 167), "Shamir v. Faiz Elahi" (1993 SCMR 145) and "Nasira Khatoon v. Mst. Aisha Bai" (2003 SCMR 1050).

8. In the case of "Noor Jehan v. Bostan" (1976 SCMR 486), it has been held that fraud has to be asserted with clarity and has to be proved as a fact. In the case of "Punjab National Bank Limited v. Dr. A.B. Arora" (AIR 1933 Lahore 1024), it was held that if a person charges another with fraud or misrepresentation, it is incumbent upon him to substantiate his allegations by making a statement on oath and by giving the other party an opportunity to cross-examine him. Pleadings of the parties are not evidence, and facts alleged in the pleadings must be proved through evidence adduced by or on behalf of the party who had claimed the existence of such facts. Mere averments and pleadings are of no value and cannot be relied upon unless proved through cogent evidence. The principle conveyed by the maxim secundum allegata et probata is that the plaintiff could succeed only by what he had alleged and proved. The august Supreme Court in the reported case of Messrs SAZCO (Pvt.) Ltd. v. Askari Commercial Bank Limited (2021 SCMR 558) was pleased to observe in Para No.40 of the Judgment: "It is trite law that fraud vitiates the most solemn transactions. But to prove fraud requires strict proof and the onus to prove fraud remains on the asserter. Moreover, not only is the fraudster to be named and impleaded as a party to the suit, but the particulars of the fraud are also to be pleaded with clarity and certainty."

9. The whole thrust of the arguments of learned counsel representing respondents was that names of the daughters of Chiragh were Fatima and Allah Wasai whereas, impugned tamleek mutation No.2837 did contain the name of Ghulam Zainab instead of Allah Wasai which fact by itself is a proof of the fraud. However, such contention of the learned counsel for respondents/ plaintiffs could not be rehabilitated through the revenue papers, as, the record of rights reveals that Ghulam Zainab was entered in the mutation No.2832 of 1950 but in the later inheritance mutation No.484 of the year 2001, which was attested even after the death Ghulam Zainab, her name was mentioned as Allah Wasai. Mutation No.484 being later in time cannot be taken as gospel truth to overturn the old record and on the basis of later entries the old and longstanding entries cannot be changed. Besides, in both the mutations i.e. Nos.2832 and 484, despite two different names, legacy of Chiragh was devolved upon one and a single lady, therefore, it is an established fact that Ghulam Zainab and Allah Wasai were two names of the same lady. Legally, authenticity and validity of Mutation No.2832 could not be rebutted by plaintiffs particularly when they themselves are beneficiaries through the said mutation as well as subsequent Mutation No.2866 dated 18.06.1951; and as such, the sole ground, on the basis whereof the plea of fraud was hinging upon, has been vanished, resulting in the failure of the case of plaintiffs.

10. It is settled law that ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, the revisional court shall interfere and can upset the concurrent findings, as well as where there is an error in the exercise of jurisdiction by the courts below and/or where the courts have acted in the exercise of its jurisdiction illegally or with material irregularity. From the above discussion the credible documentary, evidence has been in a way overlooked by the courts below, therefore the concurrent findings of fact being erroneous on account of misreading and non-reading of the evidence are not sacrosanct and did not preclude this Court from interfering in its revisional jurisdiction to correct such factual and legal errors as pointed out in the preceding paras.

11. Considering the arguments and also perusal of the record, the judgments and decrees passed by the two learned courts below are the result of misreading and non-reading of the record and law, and therefore the same are unwarranted. Accordingly, I while allowing this civil revision, set aside impugned Judgments and Decrees of the learned Courts below and dismissing the suit of respondents/plaintiffs by leaving the parties to bear their own cost. Listed CMAs have become infructuous and stands disposed of accordingly. SA/149/P Revision petition allowed.