2011 SCMR 986 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Through this appeal by leave of the Court, appellants have challenged the concurrent judgments and decrees i.e. the judgment and decree of the learned trial Court dated 4-4-1987 vide which the suit filed by predecessor-in-interest of the appellants was dismissed, the judgment and decree of the learned Additional District Judge dated 26-10-1994 vide which the judgment of the trial Court was upheld and the impugned judgment dated 20-3-2010 vide which appellants' Civil Revision No. 297 of 1995 was dismissed by the learned Lahore High Court and the concurrent judgments and decrees of the courts below were affirmed.

2. Admitted facts giving rise to the instant appeal briefly stated are that the suit-land was gifted by the predecessor-in-interest of the appellants namely Noor Khan in favour of his son Abbas Khan (predecessor-in-interest of the respondent/defendants) vide Mutation No.10 dated 18-7-1942 (Exh.P1). The said Noor Khan died on 18-4-1952; that he owned land in three different chaks i.e. (i) 535GB Faisalabad, (ii) 17 Tehsil Phalia, District Gujrat and (iii) 3 village Lakarmar District Attock. After his death, mutation of inheritance was entered in favour of all the legal heirs in other villages. However the suit land did not devolve on the legal heirs as no mutation of inheritance was sanctioned. On 3-7-1972 all the three sons from Niaz Bibi wife of Noor Khan (who had two wives) filed a declaratory suit (against Abbas Khan son of Noor Khan from the second wife and donee of Noor Khan) qua the suit-land challenged the gift and prayed for following relief:- The afore-referred suit was decreed ex parte on 29-5-1946. This decree however was never given effect to in the Revenue Record.

3. On 3-7-1972, the predecessor-in-interest of the appellants filed a declaratory suit out of which has arisen the instant appeal and claimed ownership on the basis of the afore-referred ex parte judgment and decree dated 29-5-1946. It was maintained that in the ex parte evidence led by the plaintiffs, the donor (Noor Khan) had appeared to affirm that the land gifted by him on 18-7-1942 was merely a fictitious gift as he wanted his son Abbas, the donee; to work as Numberdar in the said chak where the land was situated as he was busy in the other two chaks as Numberdar. In the written statement filed by the respondent/defendants, the averments made in the plaint were controverted, the ex parte judgment and decree dated 29-5-1946 was dubbed collusive as void and not binding upon the defendants. It was submitted that the appellants were cultivating land as tenants and they used to regularly pay the lease money to the respondent/defendants but after a while they stopped paying the share of crop (bhitae). It was averred that the said decree was never executed and the entries in the Revenue Record all along had been in favour of respondent/defendants in terms of gift deed dated 18-7-1942. It was further averred that the predecessor-in-interest of the parties namely Noor Khan gave landed property to the appellants in village area of Dijkot Town Committee which was of equivalent value rather more. In terms of the divergent pleas, following issues were framed:-- (1) Is the suit incompetent in law? OPD. (2) Whether this court has got no jurisdiction to try the present suit? OPD (3) Whether the plaintiffs have no locus standi to institute the present suit? OPD. (4) Whether the plaintiffs estopped by their conduct from filing the present suit? OPD. (5) Are the plaintiffs tenants of Government upon the suit land under Act V of 1912? OPP. (6) Whether the plaintiffs entitled to the injunction prayed for? OPP. (7) Relief."

4. In order to prove this case, appellant/plaintiffs produced the following set of evidence: (i) P.W.1 Shamoo son of Toraiz (ii) P.W.2 Nawab Din, Numberdar (iii) Mst. Niaz Bibi wife of Noor Khan

5. On the other hand, defendants produced following set of evidence: (i) D.W.1 Raees Khan (ii) D.W.2 Manzoorul Haq (one of the defendants)

6. The learned trial Court dismissed the suit vide the judgment and decree dated 4-4-1987 inter alia in terms of its finding in para 26 of the judgment wherein it was observed as follows: "From the perusal of the record it is clear that the impugned gift was made after the permission of the Commissioner according to the law. The possession of the suit-land was also immediately transferred. From the perusal of the Khasra Gurdawary from Kharif 1945 to Rabi 1949, it is clear that "Dulla and others" remained in possession of the suit-land as tenants under Abbas Khan Donee and thereafter however Ghaffar Khan, Hawas Khan and Khawas Khan came into the possession but again as tenant, under Abbas Khan Donee. So all the essential ingredients of a valid gift or the i.e. offer acceptance and transfer of possession. The impugned gift could not be connected with the other property of Noor Khan because Noor Khan was competent to alienate his property through gift without assigning any reason. Secondly the decree dated 29-5-1946 has got no effect on time right of Abbas Khan. Because the said decree was an ex parte on the address of Abbas Khan as per statement of Niaz Bibi D.W.3 was in correct in the said suit. Therefore, it appears that this suit was concealed from Abbas Khan. Similarly the decree referred to above was also not allowed to come into the notice of the donee Abbas Khan. So much so this decree was not produced before the Revenue Authorities for its implementation. It is also a matter of record that Niaz Bibi challenged the Lumbardary of Abbas Khan secondly the Hawas Khan and Khawas Khan brought a suit against the impugned gift in the year 1963, but that was subsequently with drawn. If at all the plaintiff's predecessors had challenged the impugned gift and got a declaration on 29-5-1946, against the said gift, then there was no need to file the subsequent suits including the present one. They could easily get their decree implemented by producing the same before the Revenue Authorities."

7. The afore-referred findings on question of possession of the donee, the nature of the suit-land being a State land and the conduct of the appellant/plaintiffs with regard to having filed the earlier suit in a clandestine manner and procuring the ex parte judgment without knowledge of Abbas Khan (the successor-in-interest of the defendants) were affirmed by the learned Appellate Court in terms of the judgment dated .26-10-1994 wherein the Court further observed that the suit was hopelessly time-barred as the mutation of gift dated 18-7-1942 was sought to be challenged after a lapse of almost 50 years. These concurrent judgments and decrees were upheld by the learned High Court.

8. Learned counsel for the appellants submitted that a bare reading of the gift mutation (Exh.Pl) dated 18-7-1942 indicates that neither the donor nor the donee were present; that there was no delivery of possession and that since gift was not complete, no rights accrued in favour of respondent/defendants. He further submitted that the predecessor-in-interest of the parties Noor Khan died on 18-4-1952 and all his remaining properties left by hint, were duly shared by all the legal heirs except the suit-land and this was so because of the conduct of the respondent/defendants. He referred to the statement of donor who appeared in the earlier suit which was decreed ex parte on 29-5-1946 to contend that Noor Khan had stated that the had gifted the property fictitiously so that Abbas Khan donee acts as Numberdar in the chak concerned and it was not a gift in the genuine sense. He took exception to the findings of the learned Appellate Court in para 13 of the judgment dated -26-10-1994 wherein the court attempted to non-suit the appellant/plaintiffs on the ground that they had filed an earlier suit on 4-9-1963 which was withdrawn or that the suit was time-barred. Learned counsel lastly submitted that even if appellant/plaintiffs failed to prove their case, the court should decide the matter in accord with the law of inheritance and the canons of equity.

9. Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that the concurrent judgments of three courts below are in accord with the evidence led; that the hibbah/gift in favour of the predecessor-in-interest of respondent/ defendants namely Abbas Khan was complete and never disputed.; that appellant/plaintiffs were in possession of the suit-land as tenants and they had been giving their share of produce to respondent/defendants till the registration of a criminal case against their predecessor-in-interest Abbas Khan donee who was arrested and sent to jail and whereafter they stopped giving the share of "bhitae" and instead fled a belated time-barred declaratory suit on 3-7-1972 claiming ownership on conflicting pleas i.e. right as tenants under the government and ownership in exercise of their right of adverse possession.

10. Having heard learned counsel for the parties, we are of the view that the appellant/plaintiffs failed to prove their case and the concurrent judgments and decrees neither reflect any misreading nor non-reading of evidence to warrant interference; first, because admittedly the suit-land was gifted to the predecessor-in-interest of the respondent/defendants as far back as 18-7-1942 and the entries in the Revenue Record duly reflected the change of ownership as also delivery of constructive possession which remained unchallenged for almost more than 50 years and were sought to be impugned for the first time by way of a declaratory suit on 3-7-1972, which by itself would denude it of any bona tide element, second; The suit land was a state land and in terms of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 "none of the rights or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the Executive District Officer (Revenue), or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy, any such transfer or charge made without such consenting writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector". It is not denied that as per Revenue Record the suit-land was gifted to Abbas Khan in terms of Mutation No. 10 dated 18-7-1942 (Exh.Pl) after obtaining permission from the Government. In column 15 of the afore-mentioned mutation, reference has been made to the prior permission of the Collector under section 19 of the Colonization of Government Lands (Punjab) Act to which reference has been made hereinbefore. It reads as follows:-

11. The record of rights of Chak No. 535 District Loyalpur (now Faislabad) shows that for the years 1961-62, 1965-66 and 1969-70 in Column No. 3, the Provincial Government has been shown as owner whereas Hawas Khan and Khawas Khan sons of Noor Khan (donor) are the tenants under Abbas Khan (donee) in Column No.

4. In Exh.P6 Exh.P7, Abbas Khan donee has been shown in possession under the Provincial Government. There is an entry of possession of Hawas Khan and Khawas Khan in Exh.P8 (Rabi 69) but they were in possession under the donee, third; the afore-referred documentary evidence was sought to be rebutted through the ex parte judgment dated 29-5-1946 in the declaratory suit filed by Hawas Khan and Khawas Khan through their mother Mst. Niaz Bibi P.W.3. A close look at the said judgment and decree in the light of the evidence led by the appellant/plaintiffs in this case would show that the ex parte judgment and decree was collusive, fraudulent and could not demolish the factum of gift. In the said suit, although it was a State land but the Provincial Government was not impleaded as a party. Mst. Niaz Bibi while appearing P.W.3 admitted in cross-examination that Abbas Khan and Madad Khan were residing at Gujrat whereas in the decree Exh.P2 they were shown as residents of Loyalpur and summons must have been issued at the said address. It was also contended that in the ex parte evidence led in the said suit, Noor Khan, donor, appeared to admit that the gift was made nominally for purposes of entrusting Numberdari to Abbas Khan If that was so, there was nothing to stop the appellant/plaintiffs to have the decree entered in the Revenue Record. Moreso when the donor remained alive till 1952. This circumstantial evidence is reflective of the fact that the judgment and decree was obtained by fraud.

12. A reference to section 17 of the Contract Act would be in order which reads as follows:- "

17. Fraud defined.

Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce hint to enter into the contract-- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact. (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent."

13. It is by now a settled proposition of law that fraud vitiates all proceedings. In Muhammad Younus Khan v. Government of N.-W.F.P. (1993 SCMR 618) this court observed as follows: "There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It was observed by this Court in the case of Abdul Wahid v. Mst. Zamrut (PLD 1967 SC 153) that a question of fraud is never purely a question of law as it involves firstly a finding with regard to fact, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case of fraud."

14. In the suit filed on 22-1-1946 in which the ex parte judgment and decree was obtained, the fact was concealed that the suit-land was a State land and no transfer could be effected without permission of the competent authority under section 19 of the Colonization of Government Lands (Punjab) Act and Provincial Government or Collector were not impleaded as party. Having obtained the ex parte decree it was kept secret for years i.e. till the filing of the instant suit on 3-7-1972. The exact address of respondent/defendant (donee) Abbas Khan was withheld for reasons other than bona fide and he was wrongly shown to be residing at Loyalpur. It was further concealed that the defendant/donee in the said suit had been gifted the land in terms of Mutation No.10 dated 18-4-1942 (Exh.P1). These circumstances indicate that the facts were concealed by the predecessor-in-interest of the appellant/plaintiff Niaz Bibi having full knowledge of the actual facts and with a view to deceive I not only the court but also respondent/defendants' predecessor-in-interest i.e. donee Abbas Khan. The judgment procured pursuant through such acts of concealment is fraudulent and would be hit by section 17 of the Contract Act. Fourth; it is in evidence that the appellant/plaintiffs had made abortive attempts to challenge the ownership of Abbas Khan, predecessor-in-interest of the respondent/plaintiffs as the learned Additional District Judge in para 13 of the judgment had specifically referred to it that they had earlier on filed a civil suit which was withdrawn on 4-9-1963. This finding remained unchallenged by the appellant/plaintiffs in the body of the civil revision before the High Court which we have examined as part of the record, fifth; the constructive possession of the predecessor-in-interest of the respondents namely Abbas Khan is evident from the testimony of D.W.2 Manzoorul Haq, his son, who is Numberdar of the area. He stated that the suit-land was given to Hawas Khan and Khawas Khan in the year 1949/1950 on share produce basis and they used to give the share till 1969 when his father Abbas Khan was arrested in a criminal case and thereafter Khawas and Khawas stopped giving them the share produce. When his father was acquitted in 1972 by the High Court and asked for his share in produce, they filed the suit, sixth; it is not disputed that Abbas Khan remained Numberdar all along and he was succeeded by Manzoorul Haq his son who appeared as D.W.2. This is yet another circumstance which vindicates the case of respondent/defendants.

15. For what has been discussed above, we do not find any merit in this appeal, which is dismissed with no order as to costs. M.A.K./Z-4/SC Appeal dismissed.