1997SCMR1165 (PLP)

SH. RIAZ AHMAD, J.‑‑‑Ghulam Muhammad, predecessor‑in‑interest of respondent Mst. Fatima instituted a suit in the Court of a Civil Judge at Faisalabad for the administration and partition of property of their real brother namely Fazal Din in respect of his agricultural land measuring 36 Kanals and 6 Marlas situated in Chak No.235‑GB in Tehsil Jaranwala. The suit was decreed against Peer Muhammad, the predecessor‑in‑interest of the petitioner. It may be stated here that the predecessor‑in‑interest of both the petitioner as well as the respondents were real brothers inter se. In the plaint it was avered that Peer Muhammad had fraudulently got sanctioned sale mutation No.135 in his favour on 17‑8‑1963 from Fazal Din who died two days after the sanctioning of the mutation. It was further pleaded that late Fazal Din had not sold the land nor had received any consideration, and did not appear before the Revenue Officer who sanctioned the mutation of sale. It was further pleaded that Fazal Din was an old man suffering from tuberculosis, and Peer Muhammad took advantage of his helplessness, and got this mutation of sale sanctioned in his favour fraudulently. Defendant Peer Muhammad who was alive at that time contested the suit; filed his written statement and pleaded that the sale was not fraudulent. It was also pleaded that late Fazal Din sold the land for a consideration of Rs.14,000, and before that he had executed an agreement to sell on 20‑6‑1963 acknowledging the receipt of Rs.10.000 and the rest of 4.000 rupees were to be paid at the time of the execution of the agreement. It was also stated that Fazal Din had himself appeared before the Revenue Officer, and mutation was sanctioned in‑ his presence. On the pleadings of the parties, various issues were framed, and the material of them were as under:‑ (a) Did Fazal Din sell the disputed land in favour of Peer Muhammad on 17‑8‑1963 for Rs.14,000? (b) Was Fazal Din in a disposing state of mind at the time of the sale?

2. After recording the evidence, the trial Court as well as the 1st Appellate Court dismissed the suit. Second Appeal was filed in the Lahore High Court which was accepted trough the order impugned, and the case was remanded to the trial Court for passing the preliminary decree as the suit was for the administration of the property of late Fazal Din.

3. Feeling aggrieved leave to appeal is sought against the order impugned by the petitioner successor‑in‑interest of late Peer Muhammad. The learned single Judge of the Lahore High Court while hearing the appeal, proceeded to dispose of the appeal without a legal representative of peer Muhammad being brought on record. It was observed by the learned Single Judge of the Lahore High Court that no application by any person had been made for bringing the legal representative of Peer Muhammad on record as envisaged by Order 22, Rule 4(3) of the Civil Procedure Code.

4. Before us, it has been urged that after the remand of the case by the High Court, when the learned trial Judge issued notices, only then, it transpired to the petitioner that the appeal had been decided in their absence, and that they had no knowledge, and. thus, after obtaining the copy of the judgment, they have filed the present petition seeking leave to appeal. It is also barred .by time, but considering the grounds mentioned in the application seeking condonation of delay, we feel that subject to all just exceptions, the delay should be condoned, which accordingly is condoned. As far as merits of the case are concerned, there is overwhelming evidence on the record in the form of late Fazal Din of having received Rs.10,000 at the time of the execution of the agreement to sell. Furthermore, we find that ample evidence exists on record to prove that the sale was bona fide and was not fraudulent, and that there was hardly any justification: for interfering with the concurrent findings on the part of the Lahore High Court. Accordingly, we grant leave to appeal. A.A./M‑3258/S Leave granted.