2010 CLC1181 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

This civil revision has been directed against the judgment and decree passed by the learned District Judge, Depalpur on 30-9-2000. Briefly stated the facts of the case are that Mst. Khurhsid Bibi etc. daughter of Muhammad Sadiq filed a suit for declaration and permanent injunction against Muhammad Sadiq son of Khuda Bukhsh and their three brothers to the effect that the plaintiffs and the defendants Nos.2 to 4 are real brothers and sisters and defendant No.1. Muhammad Sadiq son of Khuda Bukhsh is their father who transferred land measuring 34 Kanals, 12 Marlas through Tamleek in their favour. The plaintiffs asserted that the defendants Nos.2 to 4 in collusion with the revenue officials got mutation of Tamleek No.1118 attested on 10-9-1985 in their favour fraudulently against the actual. Tamleek. According to Tamleek Muhammad Sadiq, transferred his land measuring 34 Kanals, 12 Marlas in favour of his three daughters and three sons, but the three sons, the defendants No.2 to 4 with the collusion of revenue officials fraudulently got the entire land transferred in their favour through impugned Mutation No.1118. The plaintiffs prayed that it be declared that the plaintiffs are the owner of their share in the property which was transferred to them by their father and the Mutation No.1118 may be ordered to be cancelled to the extent of their share. The father Muhammad Sadiq was also impleaded as defendant No.1.

3. The defendants Nos.1 and 3 submitted conceding statement and admitted the claim of plaintiffs. The defendant No.4 was proceeded ex parte. However the defendant No.2 resisted the suit and denied the claim of the plaintiffs.

4. The learned civil Court, out of divergent pleadings of the parties, framed the following issues:-- ISSUES.

1. Whether the plaintiffs are owner in possession of the suit property on the basis of Tamleek and the mutation No.1118 dated 10-9-1985 is liable to be modified to the extent? OPP

2. Whether the plaintiff has got no locus standi to institute the suit? OPD

3. Whether the present suit is in the result of the collusion of defendants Nos.1, 3, 4 with the plaintiff? OPD

4. Whether the suit is hit by the principle of res judicata? OPD

5. Whether the suit is not maintainable in its present form? OPD

6. Whether the suit is mala fide and to blackmail the defendant No.2, therefore, the defendant No.2 is entitled to special costs? OPD

7. Whether the plaintiffs are estopped to file this suit due to their words and conduct? OPD

8. Whether the suit has been undervalued for the purposes of court-fee jurisdiction if so, what is the correct valuation? OPD

9. Relief?

5. Both the parties adduced their respective both oral as well as documentary (sic) and the learned Civil Court vide judgment dated 4-2-1996 decreed the suit.

6. The respondent No.2 assailed the said judgment and decree through an appeal and the learned appeal Court vide judgment and decree dated 30-9-2000 dismissed the appeal on a technical ground holding that the appeal against the respondents Nos.4 to 6 was dismissed for non-deposit of process fee vide order dated 22-4-1997. The said order was not challenged by the appellant and as such it attained finality. He further held that the respondents Nos.4 to 6 were the necessary parties in appeal and after dismissal of appeal against them the present appeal become incompetent against the respondents Nos.1 to 3.

7. The petitioner/defendant No.2 has now assailed the judgment and decree dated 30-9-2000 through the present revision petition.

8. Learned counsel for the petitioner contends that the impugned judgment and decrees passed by the learned Courts below are against the law and facts and are the outcome of misreading and non-reading of record. The judgment and decree passed by the learned appeal Court suffers from wrong interpretation of law and lastly he adds that the judgment and decree is against the established principle of law.

9. Learned counsel for the respondent supports the judgments of both the Courts below.

10. I have gone through the record with the assistance of learned counsel for the parties.

11. Perusal of record shows that respondents Nos.1 to 3 filed a suit against their father the original owner of the suit-land and three brothers who committed fraud and got mutated their share in their favour. Out of three brothers, two conceded the suit of the plaintiffs/respondents Nos.1 to 3 and only one brother contested the suit against whom the Court passed the decree. The petitioner/defendant No.2 filed an appeal against the judgment and decree dated 4-2-1996. In appeal Muhammad Sadiq (Father), Muhammad Irshad Ahmad and Muhammad Riaz were arrayed as respondents Nos.4 to

6. The appellant failed to deposit the process fee for the services of respondents Nos.4 to 6 and the learned appeal Court dismissed the appeal against them.

12. The appeal against respondents Nos.1 and 3 remained alive, these three respondents were the necessary parties as the decree was passed in their favour, the respondents Nos.4 to 6 have already conceded the suit before the learned trial Court, hence these three respondents were only the pro forma respondents as they have not assailed the decree. In the above said circumstances the learned appeal Court was not justified to dismiss the appeal of the petitioner. Hence, in my view the learned appeal Court was bound to decide the appeal on merits as the petitioner was aggrieved to the extent of his share and the respondents Nos.1 to 3 have obtained the decree to the extent of their share and even after passing the decree in favour of respondents the petitioner remain the owner of his share as per Tamleek.

13. In view of the above in my humble opinion, the impugned judgment and decree is not sustainable and as such I accept the appeal and remand the case to the learned appeal Court with the direction that he will decide the appeal afresh on merit. There is no order as to costs. A.R.K./M-193/L Case remanded.