Mst. RASHIDA BEGUM and others vs Ch. HAMEED AHMAD and others
This is a petition for leave to appeal directed against the order of the Lahore High Court upholding the dismissal of an application under Section 12(2) of the Code of Civil Procedure 1908. The original application was filed to set aside a decree based on an award concerning agricultural land, alleging that the award was collusive and procured to deprive the female heirs of their inheritance rights, supported by the absence of any sale deed or revenue mutation. The core legal question revolves around whether the transaction of sale could be considered bona fide and the resulting award non-collusive in the absence of a registered sale-deed and revenue entries, and given the familial relationship. The Supreme Court granted leave to appeal to examine these contentions and ordered that status quo be maintained by the parties.
- Whether an application under section 12(2) of the Code of Civil Procedure 1908 is competent against a decree based on an award?
- Does the absence of a sale-deed and revenue mutation, coupled with familial relationship, render a transaction of sale and subsequent award collusive?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 4-4-1994 passed by a learned Single Judge of the Lahore High Court in Civil Revision No,433 of 1994, filed by the present petitioners against the dismissal of their application under section 12(2) C.P.C. Assailing the award, which was made rule of the Court, through the judgment dated 16-1-1994 passed by the learned Civil Judge, Ist Class, Layyah, dismissing the same.
2. The brief facts are that Pir Mohammad, who is since died, filed Application No,5/12 of 1993 for setting aside the decree based on award against his son (respondent No,1 Ch. Hameed Ahmad) and nephew (respondent No,2 - Ch.Mushtaq Ahmad) in respect of about 100 Kanals of agricultural land. It appears that the above application was dismissed by the learned Civil Judge on the ground that the same was not competent against a decree based on an award. However, upon appeal, the case was remanded for deciding the same on merits. It appears that Pir Mohammad died and in his place, the petitioners (who are his six daughters) were impleaded as the applicants.
It may be observed that Pir Mohammad left behind six daughters and one son i.e the present petitioners and respondent No, 1 . After that, the learned Civil Judge framed six Issues. After recording evidence and hearing the parties by his above judgment dated 16-1-1994, dismissed the above application, against which the petitioners filed aforesaid civil revision and C.M. Without any success. The petitioners have, therefore, filed the present petition for leave to appeal.
3. In support of the above petition Mr. Hamid Aslam Qureshi, learned AOR for the petitioners, has vehemently contended that the award was collusive, which was procured in order to deny the right of inheritance to the petitioners, the female members of the family. To reinforce the above submission, he has pointed out that there was no sale deed in respect of the alleged sale by Pir Mohammad in favour of the respondents nor any mutation was made in the Revenue Record in respect of the alleged sale.
' On the other hand, Mr. S.M. Idrees, learned ASC for the respondent No,1, has urged that since the petitioners failed to make out a case of fraud, the learned Civil Judge was justified in declining the above application under section 12(2), C.P.C. And so also the learned Judge in Chambers by declining to interfere with the above order.
4. We are inclined to grant leave to consider the question, as to whether keeping in view the fact that there was no sale-deed and no entry in the Revenue Record as to the alleged sale and considering the relationship between the petitioners and the respondents, the transaction of sale could be considered as bona fide transaction and the award in respect thereof was not collusive.
Leave is, accordingly, granted. Status quo is to be maintained by both the parties till further orders.