ADNA KHAN Versus ABNA KHAN
AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners-defendants have challenged the judgment and decree dated 9.2.2004 passed by learned Additional District Judge, Kot Addu whereby appeal filed by the respondent-plaintiff was accepted and judgment and decree dated 17.4.2001 passed by learned Civil Judge 1st Class, Kot Addue, dismissing the suit was reversed.
2. Brief facts of the case are that plaintiff-respondent on 16.5.1995 filed a suit for declaration that on the basis of a decree for pre-emption dated 21.3.1960 he is owner in possession of the suit property and defendants have no concern whatsoever with the suit property. He challenged mutation No. 265 attested on 16.5.1988 with regard to property in " and mutation No. 369 attested on 18.12.1988 with regard to property in of the head-note of the plaint. Facts as pleaded in the plaint are that originally defendant No.1 was the owner of the suit property, who sold the same through registered Sale Deed No.393 dated 8.8.1958 to Muhammad Yasin etc. It is case of the plaintiff-respondent that he filed a pre-emption suit to pre-empt the suit land and the suit was decreed on 21.3.1960. The plaintiff got the decree executed and the execution petition was consigned to record having been borne fruit on 10.7.1961. According to the pleadings the mutation was entered and attested for implementation of the pre -emption decree but subsequently when the Mauza was bifurcated in two "Muwaziyat" and the revenue authority ignored the mutation in favour of the decree-holder and the property was shown in the name of seller defendant No. 1. It is stated that defendant No. 1 by taking benefit of that mistake of the revenue department sold the property through Mutation No. 265 attested on 16.5.1988 in favour of defendants Nos. 2 to 5 and sold the property in through mutation No. 369 attested on 18.12.1988 to defendant No. 6, therefore, challenged the mutations. Written statement was filed, suit was contested. Learned trial court framed the issues and invited the parties to produce their oral as well as documentary evidence. Both the parties produced their respective evidence. Learned trial court vide judgment and decree dated 17.04.2001 dismissed the suit. Appeal was preferred, same was accepted by the learned first appellate court vide judgment and decree dated 9.2.2004. Hence, this civil revision.
3. Learned counsel for the petitioners argues that petitioners Nos. 2 to 6 are the bona fide purchasers for value. They thoroughly checked the revenue record and longstanding entries were in the name of the seller/petitioner No. 1, therefore, they purchased the same and petitioner No. 1 has even denied from sale of the property by him previously, therefore, states that the findings recorded by the learned first appellate court are absolutely without jurisdiction when plaintiff-respondent miserably failed to prove his case pleaded by him.
4. On the other hand, learned counsel for the respondent argues that the findings recorded by the learned first appellate court are well-reasoned and there is no defect in the findings of the learned first appellate court, therefore, prays for dismissal of the civil revision.
5. I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary and findings recorded by both the courts below.
6. Plaintiff-respondent appeared as PW-1. The following portion of his statement during cross-examination by the learned counsel for defendants Nos. 2 to 5 is very very important:-
Above statement clearly indicates that the plaintiff failed to prove that the decree was executed in his favour. Decree of pre -emption is dated 21.3.1960 and the suit in hand has been filed on 16.5.1995, about 35 years after passing of decree in favour of the plaintiff and it is admission of the plaintiff that the non-execution of the decree and non-attestation of mutation on the basis of execution of decree is in his knowledge since 5 years after passing of the decree. It is also admitted that the sale in favour of defendants Nos. 2 to 5 as well as defendant No. 6 is also in his knowledge since five years after passing of pre- emption decree in his favour. The suit has been filed in the year 1995. Learned counsel for the respondent in his arguments has argued that possession is of the petitioners and for the long time they are taking the benefit of the produce.
7. It is settled principle of law that when a party defrauds other party, the sufferer out of the parties defrauded will be the person who let the first party to defraud them. In this case if right of the plaintiff through passing of decree of pre -emption dated 21.3.1960 in his favour is admitted, then it is the plaintiff who knowingly that the same has not been executed in his favour, let defendant No. 1 to sell the property again in favour of defendants Nos. 2 to 5 in the year 1988 i.e. after 28 years of passing of decree in his favour and through the other mutation in favour of defendant No. 6 that too in the year 1988 after 28 years of passing of decree and in the cross-examination plaintiff-respondent has admitted that it was in his knowledge that pre-emption decree has not been executed and incorporated in the revenue record and further that he has admitted the possession of the purchasers i.e. defendants Nos. 2 to 5 and defendant No. 6 and even the suit has been filed in the year 1995 which is also time barred from the date of sale in favour of defendant Nos. 2 to 6.
8. In this view of the matter, the findings recorded by the learned first appellate court are against the settled principles of law as well as interpretation of the law by the Hon'ble Superior Courts. I am clear in my mind that when plaintiff-respondent let defendant No. 1 to defraud the other parties if his case pleaded by him is admitted to be true even then he is responsible for defrauding defendants Nos. 2 to 5 and defendant No. 6, they cannot be made scapegoat of misdeeds of plaintiff and defendant No. 1 who are real brothers. Plaintiff, if has any claim he can sue defendant No. 1 for his compensation but as he let defendant No.1 to defraud the other defendants, therefore, he is to suffer in this litigation.
9. For what has been discussed above, this civil revision is accepted and the judgment and decree passed by the learned first appellate is set aside. Result would be that the dismissal decree of suit filed by the respondent-plaintiff passed by learned trial court, is restored.
ZC/A-124/L Revision allowed.