2012 PLP 802 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioner has challenged the validity of the judgment and decree passed by learned first appellate Court dated 11-10-2001 whereby appeal filed by the respondent was accepted and judgment and decree dated 11-11-2000 passed by learned Civil Judge 1st Class, Sadiqabad decreeing the suit of the plaintiff-petitioner was reversed.

2. Brief facts of the case are that the petitioner-plaintiff filed a suit under section 39 of the Specific Relief Act, 1877 for cancellation of mutation of sale bearing No.1157 attested on 9-1-1983 about the suit land, fully described in the head note of the plaint, and prayed that he be declared to be owner of the suit property. The respondent filed written statement and contested the suit. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Learned trial Court vide judgment and decree dated 11-11-2000 decreed the suit while the learned first appellate Court vide judgment and decree dated 11-10-2001 accepted the appeal filed by the respondent and reversed the findings recorded by the learned trial Court and dismissed the suit of the plaintiff- petitioner. Hence this civil revision.

3. Learned counsel for the petitioner states that mutation does not create or confer a title. Further states that when fraud has been alleged in the plaint it was duty of the defendant-respondent to prove the transaction of mutation as well as attestation of mutation. Further states that the transfer of property through mutation was not valid because registered sale-deed was required for the transfer of property in favour of the defendant-respondent.

4. On the other hand, learned counsel for the respondent states that suit under section 39 of the Specific Relief Act, 1877 was not competent because the mutation was attested by the revenue authorities and Province of Punjab was not made party in the suit; that the plaintiff has neither pleaded fraud as required under the law nor proved the same through reliable evidence; that the statement of P.W.1 is absolutely irrelevant; that P.W.2 plaintiff himself appeared in rebuttal evidence only; that before attestation of mutation there was agreement to sell between the parties about the suit land which is Exh.D-1 dated 20-6-1982 and receipt of the earnest money is Exh.D-2 of the same date; that Exh.D-3 is certificate of Notary Public who attested the said document and that defendant-respondent has fully proved the agreement to sell and also produced P.W.5 Patwari Halqa who entered the Rapat for the sale of the land. Learned counsel for the respondent further states that before filing this suit the plaintiff-petitioner filed a suit for cancellation of the said agreement to sell Exh.D-1. The suit was filed in the year 1986. Copy of the plaint is Exh.D-8. The suit was dismissed by the learned trial Court. Copy of the judgment dated 30-11-1992 is Exh.D-9 and copy of decree sheet is Exh.D-10. Thereafter appeal was filed. Copy of memo of appeal is Exh.D-11. Learned counsel for the plaintiff withdrew the appeal as well as the previous suit on 15-1-1997. Copy of the statement of learned counsel for the plaintiff-petitioner and order of the Court dated 15-1-1997 is Exh.D-12. Learned counsel for the respondent further states that it creates estoppels as well as res judicata against the petitioner.

5. I have heard learned counsel for the parties and have perused the record available on the file with the assistance of learned counsel for the parties.

6. So far as the pleading of fraud is concerned, fraud being a criminal act, it is necessary in case of pleading fraud, that the pleadings must be specific and with required details. If these things are missing, then the pleadings are defective. Just alleging fraud without any further details cannot help the plaintiff-petitioner to prove the same with evidence. No doubt fraud is ever secret in nature and pleading of fraud and proving the same through evidence is not easy in every case but it is also important that a party when comes to know about the fraud, before filing any lis it definitely tries to connect every link to prove fraud. In the case in hand just fraud has been pleaded without any details and further without any evidence. Learned counsel for the respondent has objected that statement of P.W.1 is absolutely irrelevant.

7. Further the objection of learned counsel for the petitioner that mutation does not create a title is true only when the transaction has not been proved by the parties and if parties relies just on a mutation it certainly does not create or confer right or title but when the event of transaction is fully proved and on the basis of that transaction the mutation has been attested and proved it certainly creates right and title in favour of the person, in whose favour mutation of sale has been attested.

8. Further the objection of the learned counsel of the petitioner that registered sale deed was required has also no force because the Transfer of Property Act, 1882 is applicable on the urban area only and not applicable to the rural area of Bahawalpur.

9. With regard to the objection of learned counsel for the respondent that the suit was not competent under section 39 of the Specific Relief Act, 1877, I agree with the learned counsel for the respondent that it was not a case for cancellation of document but it was a suit for declaration which was to be filed under the relevant provisions of the Specific Relief Act, 1877 and even if suit for cancellation of document was competent, then certainly the officials of the revenue department who attested the mutation and Province of Punjab were the necessary parties who have not been made party to this suit. Further the plaintiff got recorded his statement as P.W.2 in rebuttal after the close of the defendant's evidence. In my view, the statement of the plaintiff cannot be read as affirmative part of his evidence. If his statement is taken off from affirmative evidence, only statement of P.W.1 remains in the field, regarding which I have already expressed my opinion that it is absolutely irrelevant in this case. In this view of the matter, statement of plaintiff himself is also not helpful for his case. On the other hand, respondent-defendant has fully proved the agreement of sale, the payment of earnest money and the mutation in question. Further the plaintiff had earlier filed a suit (Exh.D-8) for cancellation of agreement to sell Exh.D-1. The judgment and decree dismissing the earlier suit are Exh.D-9 and Exh.D-10. Appeal filed in that suit is Exh.D-11 and the statement of learned counsel for the plaintiff and order of the Court dated 15-1-1997 dismissing the appeal as well as the previous suit as withdrawn by the petitioner is Exh.D-12.

10. In view of what has been said above, I see no force in this civil revision and dismiss the same with costs throughout. K.M.Z./A-44/L Petition dismissed.