2000 PLP 1459 (MLD)

(v) Whether the suit is bad for mis joinder and non joinder of the arties? OPD (vi) Whether the description of the suit property has been described incorrectly. If so, its effect? (vii) Whether the plaintiff has not come to the Court with clean hands? OPD (viii) Whether this Court lacks jurisdiction to try this suit? OPD (ix) Whether the plaintiff has not thumb‑marked the plaint and Vikalatnama etc.? OPD (x) Whether the suit is frivolous and the defendants are entitled to special costs under section 35‑A, C.P.C. If so to what extent? OPD. (x.A) Whether the suit is time‑barred? OPD (x.B) Whether the defendant No.2 is a bona fide purchaser with consideration and without notice? O.P. (x.C) Whether the defendant No.2 has improved the suit property. If so with what amount and with what effect? OPD (x.D) Whether this suit is collusive between the plaintiffs and defendant No. l? OPD. 2 . (xi) Relief. The trial Court decreed the suit vide judgment and decree dated 27‑4‑1992. Respondents being aggrieved filed appeal before the Additional District Judge Daska who accepted the same vide judgment and decree dated 26‑2‑1996. Learned counsel submits that judgment of both the Courts below are at variance. He further submits that the first appellate Court did not advert to the reasoning of the trial Court. He further submits that judgment of the first appellate Court is result of misreading or non‑reading of the record. He further submits that the first appellate Court was erred in law to take into consideration written statement filed by respondent No. l in another suit and that was not placed on record in accordance with law. He further submits that the suit was not filed collusively by predecessor‑in‑interest of the petitioner with respondent No. L It is a matter of chance that predecessor‑in- interest of the petitioner and respondent No. l was real brothers. He further submits that possession of the land is still with the petitioners and this fact was not noted by the first appellate Court. He further submits that respondent No.2 is not a bona fide purchaser as respondent No.2 did not get permission from the predecessor‑in‑interest of the petitioners before purchasing the land in question. He further submits that petitioners produced documentary evidence to show that the suit was not filed by the predecessor‑in‑interest collusively with respondent No.

1. Predecessor‑in‑interest of the petitioner has also placed evidence on record that respondent No.2 did not purchased the land in good faith as the respondents failed to bring on record sufficient evidence to get the benefit of section 41 of the Transfer of Property Act as the ingredients of section 41 is not attracted on the basis of the evidence on record. He further submits that the first appellate Court rejected the partition deed without any justification which is result of misreading or non‑reading of the record.

2. Learned counsel for respondent No.2 submits that learned counsel for the petitioner failed to point out any piece of evidence which was mis read by the first appellate Court. He further submits that the first appellate Court gave finding of fact against the petitioner after proper appreciation of evidence that the suit filed by the predecessor‑in‑interest of the petitioner collusively with respondent No.

1. He further submits that the first Appellate Court after proper appreciation of evidence gave finding of fact against the petitioner that respondent No. 2 has purchased the land in question from respondent No. l after proper appreciation of evidence and after informing and checking the Revenue Record. Learned counsel for the respondents stated that possession of the land in question is with them. He summed up his arguments that partition deed was rightly rejected by the first appellate Court after proper evidence on record. He further submits that predecessor‑in- interest of the petitioner failed to bring on record any evidence that the sale -deed executed by respondent No. l in favour of respondent No.2 is result of fraud or misrepresentation.

3. Learned counsel of legal representatives of respondents Nos.8 and 9 adopted the arguments of the learned counsel for respondent No.2 and submits that respondents purchased the land from respondent No.2 with consideration through registered sale‑deed and the judgment of the first appellate Courts is valid as the first appellate Court has given finding of fact against the petitioner on the aforesaid issues after proper appreciation of evidence.

4. Learned counsel for the petitioner in rebuttal stated that the judgment of the first appellate Court is not sustainable in the eyes of law as the first appellate Court did not advert to the reasoning of the trial Court and is result of misreading or non‑reading of the record. He further stated that respondents purchased the land in question from the father of the petitioner.

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The first appellate Court has given finding of fact against the petitioner after proper appreciation of evidence that suit was filed by the predecessor‑in‑interest of the petitioner collusively with his brother respondent No. l as is evident from his written statement that he had filed consenting written statement and admitted in written statement that partition deed was executed between the two brothers on' 19‑4‑1983 but respondent No. l did not file consenting written statement in a similar suit filed by the predecessor‑in‑interest of the petitioners regarding similar transaction. Copy of the plaint with the said may be duct (sic) and written statement were exhibited without objection as Exhs.D‑7 and D‑

8. The contents of the written statement reveal that respondent No. l denied the existence of any partition deed. This fact brings the case in the area that it was filed collusively by the predecessor‑in‑interest of the petitioner with respondent No.

1. Even otherwise the conduct of respondent No. l is also of such a nature that his statement was rightly not believed by the first appellate Court coupled with the fact that respondent No. l did not challenge the illegality and propriety of the registered sale- deed. The contents of the sale‑deed clearly reveal that Rehmat Ali respondent No. l had sold the land in question with consideration of Rs.1,00,000 to respondent No.2. It is, pertinent to mention here that respondent No. l got registered a sale‑deed while appearing before the Sub‑Registrar and received the consideration amounting to Rs:1,00,000 before the Registrar. As mentioned above respondent No. l did not challenge the validity or illegality of the sale‑deed that he did not appear before the Sub‑Registrar and the sale deed was not registered in his presence. It is by now well‑settled that registered documents has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness as per principle laid down by the Hon'ble Supreme Court in Mirza Muhammad Sharif v. Mst. Nawab Bibi 1993 SCMR

462. It is pertinent to mention here that there is no evidence worth the name on the file to show that the sale‑deed was forged and fictitious. Therefore, Rehmat Ali is estoped by Way of his conduct to take any exception qua the registered sale‑deed on the well known principle of approbate and repproabate. In arriving this conclusion I am fortified by the judgment of the Hon'ble Supreme Court in Ghulam Rasool's case PLD 1971 SC

376. First appellate Court has also reversed the finding of the trial Court after proper appreciation of evidence that partition deed was not genuine on the following reasons: (i) Partition deed was executed on 19‑11‑1983. (ii) Neither its executant nor its marginal witnesses or its scribe appeared in the witness‑box to prove the execution of the partition deed. (iii) The other share‑holders also did not attest the same. First appellate Court has given finding of fact against the petitioner in the following terms:‑‑ "I am of the view that in the first place, the partition‑deed has not been proved on the file and secondly, on account of the absence of the other co‑sharers as a party to the said document, this document has got no legal effect and it cannot be used against Muhammad Sharif, the vendee, who is bona fide purchaser." It is pertinent to mention here that during this litigation respondent No.1 made no efforts whatsoever to annul acts performed in result of aforesaid sale‑deed. Therefore, first appellate Court was justified to give benefit of section 41 of the Transfer of Property to respondent No.2 as per rule laid down by the superior Courts in, arriving to this conclusion I am fortified by the judgment of the Peshawar High Court PLJ 1984 Peshawar

278. This fact alone is sufficient to come to a conclusion that predecessor‑in‑interest of the, petitioner and respondent No. l filed suit with collusion. Collusion means in judicial proceedings a secret arrangement between two persons that one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose as per principle laid down by the superior Courts in the following judgments: 1991 CLC 553 (Iqbal v. Mst. Jennan Bibi) 1986 CLC 2655 (M.A. Khan v. S. Khan) PLD 1984 Lahore 396 (Zafrullah v., Civil Judge Hafizabad). PLD 1982 Peshawar 172 (Rauf v. A.R. Khan) As regards the findings of the learned Additional District Judge on the aforesaid issues, it may be noticed that in his capacity as appellate Court, the learned Additional District Judge possessed the jurisdiction to come to its own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reverse the finding of the trial Court on the question of fact involved in issues. It is established proposition of law that finding on question of fact or law, howsoever, erroneous the same may be recorded by the Court of competent jurisdiction, cannot be interferred with by the High Court, in exercising of its revisional jurisdiction under section 115, C:P.C., unless such finding suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments, Board, Madras (PLD 1949 PC 26). In view of what has been discussed above this revision petition has no merit and the same is dismissed. Q.M.H./M.A.K./M‑119/L. Revision dismissed.