2016 PLP 758 (YLR)

MUHAMMAD YOUNIS THAHEEM, J.

This revision petition is directed against the judgment and order dated 13/10/2011 of the learned Additional District Judge-II Karak, whereby appeal of Gul Zar Ahmad Khattak, plaintiff/ respondent against the judgment and decree dated 3/12/2009 passed by the learned Civil Judge-I Karak was accepted and the case was remanded to the trial Court for decision de novo.

2. According to the averments made in the plaint, the plaintiff alleged that the suit property fully detailed in the plaint was wrongly and fraudulently transferred through mutation No.10957 dated 3/6/1941 attested in favour of predecessor of the defendants from their predecessor which was thus ineffective upon their rights and liable to cancellation. The plaintiff also sought cancellation of Mutations Nos.584 and 585 dated 7/11/2008 and correction of revenue record with a consequential relief for possession of the suit property.

3. When summoned, the defendants appeared and contested the suit by filing written statement and divergent pleadings of the parties gave birth to framing of eight issues including the relief. Thereafter, the parties produced their respective evidence and the learned trial Judge after scanning the same and considering the arguments of their learned counsel dismissed the suit of the plaintiffs/ respondents vide judgment and decree dated 3/12/2009. However, their appeal against the said judgment and decree was accepted by the learned Additional District Judge-II Karak vide judgment and decree dated 13/10/2011, hence the instant revision petition by the defendants/ petitioners.

4. I have carefully scrutinized the entire record of the case and anxiously considered the valuable arguments of learned counsel for the parties.

5. The respondent has challenged the sale Mutation No.10957 attested on 03.06.1941 and onward Mutations Nos.584 and 585 attested on 07.11.1978 upon the allegations of fraud, collusion etc. Under the law, he who alleges fraud had to expressly mention in the plaint all the particulars of fraud, as when, how and where it was done and burden of proof is also upon the person who alleges fraud. In the instant case plaintiff Gul Zar Ahmad only appeared in the witness box as PW-3, who never produced any evidence or other witnesses to prove the allegation made in the plaint, for which legally he was bound to prove. He has not expressly alleged all particulars of fraud in his plaint or in his statement to prove the same. It is settled law enunciated in the judgment of Hon'ble Supreme Court in case titled "Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 Karachi and others" (2013 SCMR 1419) relevant lines are reproduced here under:-- "In the present case, the contents of the two applications, as reproduced above, reveal that in none of the two, any grievance of fraud, collusion, misrepresenta-tion, manipulation or mala fide was attributed either by the judgment debtor/petitioner or by objector Younus Habib, though it is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any bald or vague statement to this effect is of no legal consequence."

6. Perusal of record shows that the impugned judgment and decree of the learned lower appellate Court is not based on correct legal footings and thus requires to be interfered with by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. The learned trial Court had rightly considered the matter within the legal framework and had correctly dismissed the suit of the plaintiffs/ respondents. The parties had produced sufficient evidence wherefrom fate of the case was rightly dismissed by the trial Court and thus there was no need for framing of specific issue. Moreover, the predecessor of the plaintiffs/respondents was present at the time of attestation of impugned mutation No.10957 dated 3/6/1941, placed on record as Ex: PW 2/2, therefore, the findings of learned lower appellate Court that it was based on fraud and collusion are the result of mis-reading and non-reading of evidence available on file.

7. In wake of the above, I accept the revision petition, set aside the impugned judgment and decree of the learned appellate Court and resultantly the judgment and decree passed by trial court is restored and suit of the plaintiffs/ respondents stands dismissed leaving the parties to bear their own costs. SL/396/P Petition accepted.