2012 Y L R 1454
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
BIBI SAKINA and 7 others ---Petitioners
versus
Haji ASMATULLAH and 2 others ---Respondents
Civil Revision No.27 of 2006, decided on 2nd March, 2012.
(a) Specific Relief Act (I of 1877) ---
----S. 39 ---Limitation Act (IX of 1908), Arts. 91 & 114 ---Qanun -e-Shahadat (10 of 1984),
Art. 117 ---Suit for cancellation of mutation and sale agreement filed beyond three years --
-Burden of proof ---Time would be counted from date on which plaintiff get knowledge
about the suit documents ---Initial burden would lie on plaintiff to establish that he did not
know about suit documents earlier and he approached the court within prescribed period
after getting knowledge thereof.
(b) Transfer of Property Act (IV of 1882) ---
----Ss. 44 & 47 ---Joint property, transfer of ---Scope ---Any co -owner could transfer
his whole or part of his share in joint property before its actual partition.
(c) Specific Relief Act (I of 1877) ---
----S. 39 ---Contract Act (IX of 1872), Ss.15 & 16 ---Civil Proc edure Code (V of 1908), O.
VI, R. 4 ---Qanun -e-Shahadat (10 of 1984), Arts. 117 & 118 ---Suit for cancellation of
mutation entry and sale agreement ---Plaintiff's plea that such entry and agreement was
result of fraud, coercion and undue influence ---Burden of proof ---Plaintiff would be
bound to prove such plea by leading evidence to the effect that defendant was in a
position to dominate his will and advanced to him, threats ---Plaint and evidence led by
plaintiff did not disclose method through which plaintiff was threatened or put under
influence for purpose of effecting suit mutation in revenue record ---Suit was dismissed, in
circumstances.
Habib Tahir for Petitioners.
Date of hearing: 3rd October, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Feeling agg rieved of the judgment dated
29th September, 2004 of Civil Judge -V, Quetta, whereby the suit filed by the petitioner
was dismissed, and the judgment dated 26th October, 2005 of Additional District Judge -
II, Quetta, whereby the appeal preferred by the peti tioners also met with the same fate,
instant petition has been filed assailing both the judgments with the prayer for setting
aside of the same, and allowing the suit filed by them. It was contention of the petitioners
that the courts below misappreciated the evidence, and the material on record, thus
arrived to a conclusion, which is contrary to law and justice. It was further contended that
the transaction in question was not a genuine buying or selling, rather it based on a
common practice of fleecing mo ney lending, which is known as "payment business". It
was further contended that actually only two vehicles were purchased by the predecessor -
in-interest of the petitioners, while out of which one was found as stolen or smuggled
vehicle, and was detained b y Kuchlak Police, but the loan amount aggregated over
Rs.80,00,000 (Rupees eighty lacs only). While respondent No.2, and his associates
threatened the predecessor in interest of the petitioners, and forcibly procured the
agreement, and the mutation entry i n his favour (respondent No.2). But both the courts
below failed to consider the real question involved in the matter. Further, in the given
state of matter no direct evidence can be available, but the courts below failed to consider
this material aspect o f the case, and despite sufficient evidence on record refused the
relief prayed thereby. The petitioners further contended that the fraud committed in the
transaction was apparent from the facts that the questioned mutation entry was made on
26th November, 1997, but respondent No.2 never insisted for transfer of the possession,
which was with the owners i.e. the petitioners, and respondent No.1. Further, the sale
consideration was claimed as Rs.89,11,000 (Rupees eighty nine lacs and eleven
thousand), but it did not correspond with the sale amount as mentioned in the mutation
entry, which was recorded as Rs.100,000 (Rupees one lac) only. Further, despite the fact
that a heavy amount was involved in the matter the respondent No.2 did not insist for
execution o f any registered sale -deed, or other documents during all these years, rather
remained contended only on effecting of the mutation in his name. Furthermore, the
agreement in question was obtained after a period of five months, which creates doubt in
the ge nuineness of the alleged transaction. Furthermore, the marginal witnesses of the
agreement, and the witnesses about payment of the sale amount were not produced. But,
these facts were not considered by the courts below. It was strongly contended that in th e
given circumstances, keeping the nature of the case, serious consideration was required to
be made, but the courts below, considered the alleged transaction being an ordinary one,
and arrived to the findings, which are erroneous in the circumstances. It was also
contended by the petitioners that the question of limitation was also not properly decided,
because this fact had already come on record that the predecessor -in-interest of the
petitioners namely Rehmatullah was so scared that he did not disclose the transaction to
his kith and kins. Even otherwise the respondent No.2 also kept silent after alleged
transaction, and never asserted any right in respect of the property in question. In the
circumstances the suit was filed within time. It was further co ntended that this case
should have been treated at par with the cases of "payment" decided by this court, and the
criteria laid down in the decision.
2. Brief facts of the case are that the predecessor -in-interest of the petitioners namely
Malik Rehmatulla h filed a suit seeking cancellation of the Mutation Entry No.46 effected
on 24th November 1997, and also cancellation of an agreement of sale executed on 13th
April, 1998. It was case of the plaintiff (Malik Rehmatullah), predecessor -in-interest of
present petitioners, that the property bearing khasra No.594, situated at Ward No.36,
Urban Quetta, measuring 20318 square feet, whereon a Cinema by the name of Delite
Cinema, eight shops, and a hotel existed, was owned by him, and defendant No.1/
respondent No.1 Haji Asmatullah. It was further his case that the respondent No.2
contacted, and persuaded Malik Rehmatullah for purchase of two vehicles on instalments,
who agreed to buy a Toyota Corolla, and SSR pick up at price of Rs.300,000 (Rupees
three lacs), and R s.700,000 (Rupees seven lacs). But later on both the vehicles were found
stolen, and F.I.R. was lodged in Pishin, in consequence thereof the vehicles were taken
back. It was further his case that he (Malik Rehmatullah) was compelled by respondent
No.2 Haji Shaukat Ali for selling of his (Malik Rehmatullah) share in the Cinema to him.
Though the demand so made was resisted on ground that the property was un -partitioned,
and under the control of respondent No.1. But, as Malik Rehmatullah was chronic patient
of diabetes, and hypertension succumbed to the pressure, and agreed to transfer an area of
2546 square feet from the property, whereon new construction was made, but without
obtaining consent of respondent No.1 and his sons (present petitioners). In result whereof
Mutation Entry No.461 was effected on 24th November 1997. But, as soon as the fact
came within the knowledge of respondent No.1, and the present petitioners, they showed
their non -agreement with the transaction. Therefore, in the circumstances the predecessor -
in-interest of the petitioners had severe heart attack, and confined to bed for a period of
four months. Whereafter, he contacted respondent No.2, and persuaded him to take back
the money as compensation for use of vehicles for some period, a nd also for cancellation
of the questioned mutation entry. But respondent No.2 in reply claimed to have paid an
amount of Rs.89,11,000, and also showed himself to be in possession of a document in
same respect. It was case of the plaintiff that the alleged document was incorrect, based
on misrepresentation, and fraud. Further, the document dated 13th April, 1998 was for the
first time came into their knowledge during course of the proceedings of the case filed by
respondent No.2. Therefore, in the circumsta nces, both the mentioned documents were
required to be cancelled, being creation of fraud. It was further their plea that the
respondent No.2 intended to make a private arrangement in the matter, but their
predecessor -in-interest felt that such desire was only a delaying tactics, therefore, the suit
was filed. It was prayed that the mutation entry, and the alleged agreement of sale be
cancelled, being result of threat, coercion, and undue influence, thus of no legal effect.
3. In his written statement defen dant No.2/respondent No.2 strongly denied the
contention as raised in the plaint. He contested the suit on merits, and also raised several
legal objections on maintainability of the suit. It was objected that the suit is hit by law of
limitation, being fil ed beyond the provided period. Further, the suit is also bad for non -
joinder, and misjoinder of parties. In addition hit by principle of estoppel, as in previous
litigation the sale transaction was an admitted feature. On merits it was his (respondent's
No.2) reply that during the sale transaction the predecessor -in-interest of the petitioners
Malik Rehmatullah showed himself to be the exclusive owner of land measuring 2546
square feet, being fallen into his share on account of family settlement, which was sold to
him. He further contended that physical possession of the property in question was also
delivered to him, and as such he is in exclusive possession of it being its owner. He
further denied dealing with "payment business", or entering into any trans action
pertaining to purchase of vehicles on instalments. He further denied lodging of F.I.R.
against him. There was also complete denial about playing fraud, adopting coercive
methods for effecting of the sale transaction, or execution of the agreement, a nd effecting
of the mutation entry in his name. It was his (respondent's No.2) plea that only in order to
pressurize him respondent No.1 filed a suit for declaration, cancellation, and correction of
the record against him, and also against predecessor -in-interest of the petitioners. Further,
a subsequent suit was also filed by respondent No.1 for pre -emption against both of them,
which is still sub judice before the court of Civil Judge -IV, Quetta. It was also contended
that the alleged sale transaction is valid, and in accordance with law, therefore, he cannot
be deprived of his right. He prayed for dismissal of the suit.
4. From perusal of the judgment of the trial court it appeared that respondent No.1
participated in the proceedings, and filed his reply, and got recorded his statement on
oath. But the petitioners have failed to annex copies of the written statement, and the
statement on oath. The conduct of the petitioners affected their own case.
Out of the pleadings of the parties the learned trial co urt framed issues on 5th July,
2001: --
(1) Whether the suit is not maintainable in view of preliminary legal objections A, C,
D, F of the written statement filed by defendant No.2?
(2) Whether the Mutation No. 46 dated 24 -11-1997 was obtained under threat ,
coercion, undue influence and force?
(3) Whether the plaintiff and defendant No.1 are co -owners and in possession of
disputed shops and defendant No.1 is over all supervisors of the Cinema and
shops?
(4) Whether the document dated 13 -4-1998 was abso lutely incorrect and based on
misrepresentation and fraud?
(5) Whether the defendant No. (sic) deals in payment business and sold two vehicles
on payment to plaintiff and later on found that vehicles were stolen?
(6) Whether the plaintiff is entitled for t he relief claimed for?
(7) Relief?
6. In order to substantiate their claim the petitioners produced five witnesses, and
petitioner No.5 recorded his statement for himself, and as attorney for the remaining
petitioners. While in rebuttal according to the ju dgment of the trial court, the respondent
No.1 recorded his statement on oath, while respondent No.2 produced one witness, and
got recorded his statement through attorney. It is noted that the petitioners have failed to
annex the copies of the statement of respondent No.1, and the witness of respondent No.2,
who appeared as DW -1. It is further observed that the documents, which were got
exhibited by the defendants are also not attached with the instant petition. On completion
the trial court decided the sui t through judgment dated 25th September, 2004, and arrived
to the conclusion that the plaintiffs/petitioners have failed to establish their plea,
therefore, the suit filed by the them was dismissed. The appellate court also concurred
with the findings of t he trial court, hence instant petition.
7. It is further apparent from the case file that counsel for respondents Nos.1 and 2
was reluctant to argue the matter, and on the date of final hearing failed to appear before
the court, therefore, in the circumsta nces only counsel for the petitioners was heard. It
was argument of the learned counsel for the petitioners that the courts below failed to
properly appreciate the evidence, and the material on record, rather wrong findings were
given on the issue pertaini ng to limitation, because the agreement in question being a
subsequent event, therefore, the time was to be computed from the date of its execution,
in view of the same the suit was very much within time.
8. Through instant petition the petitioners have ch allenged the orders of the courts
below specifically on ground of misappreciation of the facts, and circumstances of the
case. According to them a fraud was committed by respondent No.2, and this fact was
apparent from the circumstances of the case, which were not properly appreciated. To
support their contention certain facts were narrated. According to them the questioned
agreement was executed after five months of effecting of questioned mutation entry,
while the possession was never claimed by responden t No.2 during all these years.
Furthermore, there was difference in amount of sale consideration as alleged by
respondent No.2, and as mentioned in the questioned mutation entry, coupled with the
fact that no evidence about payment of sale consideration wa s produced, nor even the
marginal witnesses of the agreement appeared before the court. Therefore, in presence of
these facts commission of fraud on the part of respondent No.2 was very much apparent.
To strengthen their plea it was further asserted that t he matter in issue between the parties
pertains to "payment", while respondent No.2 belonged to "payment mafia", therefore, the
case was to be considered, and material was to be evaluated on different footings, and the
criteria as laid down by this court w hile making decision in similar matter was to be
followed instead of considering it as an ordinary sale transaction.
9. Keeping in view the contention so raised in the petition, the pleadings of the
parties, and the material on record are to be assessed. B ut it is observed that the learned
counsel for the petitioners did not argue the mentioned contention, rather confined his
arguments only to the extent of point of limitation. He did not address the remaining
grounds as raised in the petition. The plaintif fs/petitioners in their suit sought relief to the
extent of cancellation of mutation entry effected on 24th November, 1997, in favour of
respondent No.2, and cancellation of agreement to sell executed on 13th April, 1998,
between him, and respondent No.2 o n grounds of fraud, coercion, and undue influence,
which needs consideration. But, the objection on maintainability of the suit being filed
beyond provided period needs decision at first instance, as it will determine fate of the
suit being maintainable or otherwise, whereafter, findings be given on merits of the case.
10. Both the courts below arrived to the conclusion that the suit is not maintainable
being hit by provisions of the Limitation Act, 1908. The learned trial court referred to
Article 91 of th e Limitation Act, 1908, wherein a period of three years is provided for
filing a suit seeking cancellation of a document. According to the trial court the suit has
been filed beyond the provided period of three years, while counting the period from
effecti ng of the disputed mutation entry. But the trial court failed to record findings to the
effect keeping in view execution of the questioned agreement, cancellation whereof was
also prayed in the suit. As far as the appellate court is concerned, it also conf ined its
findings to the extent of the mutation entry, while failed to give due consideration to the
agreement thereafter executed between the parties on 13th April, 1998. The suit was filed
in 2001. Keeping in view these facts, as the petitioners are pray ing for the relief of
cancellation of mutation entry, effected on 24th November, 1997, therefore, Article 91 of
the Limitation Act, 1908 (The Act) will be applicable in the matter, which provides a
period of three years for cancellation or setting aside of an instrument. And according to
this Article the time shall be counted when the facts entitling the plaintiff to have the
instrument cancelled or setting aside become known to him. But as far as cancellation of
agreement/contract of sale is concerned, Art icle 114 of the Act will be in field, which also
provides a period of three years, and the time begins to run when facts entitling the
plaintiff to have the contract rescinded first become known to him.
11. Keeping in view these provisions, and the facts t hough the suit was filed beyond
the period of three years from effecting of questioned mutation entry. But, in case of the
agreement the petitioners were required to approach the court up till April, 2001. But it is
to be kept in sight that in both the cas es the date of the knowledge is material, as the time
is to be counted from it. Therefore, in the circumstances the initial burden was on the
petitioners to establish that the fact of execution of the alleged sale agreement, and
effecting of the mutation e ntry in the Revenue Record were not within their knowledge,
further, they approached the court within the provided period after getting knowledge
thereof. But the contents of the plaint failed to disclose the dates when both the facts
came within the knowl edge of their predecessor -in-interest being the plaintiff of the suit.
Further, no plea of fraud was taken in the plaint. Rather, the case as made out therein was
that the questioned mutation entry was got effected in the relevant record under coercion,
duress, and undue force, and the agreement was claimed to be result of misrepresentation,
and fraud. But it appears that no date is disclosed in the plaint that when the predecessor
in interest of the petitioners, who initially filed the suit, came into know ledge of the
presence of the alleged agreement. As far as the execution of the mutation entry is
concerned though it is not denied, but a specific plea of coercion and undue influence was
raised, which was to be established by the petitioners.
12. It was c ase of the petitioners that there was some transaction between the
predecessor -in-interest of the petitioners, and respondent No.2 about purchase of two
vehicles, which were later on found to be stolen, thus returned to respondent No.2.
whereafter, the rem aining events happened, therefore, this was the basic event, which was
required to be established by the petitioners at the first instance. But, it is to be observed
from the material on record that the plaint is silent to the effect, even the particulars of the
vehicles, which were allegedly purchased by the predecessor -in-interest of the petitioners
from respondent No.2 in consideration of Rs.10,00,000 (Rupees ten lacs), which were
thereafter returned are not mentioned therein. Further, none of the person s appeared who
witnessed the occasions to confirm the said transaction. Nor any receipt or some other
document about payment of sale price of the vehicles, were placed on record. The
petitioner, No.5, who recorded statement for himself and on behalf of the remaining
petitioners, also failed to disclose the particulars of the vehicles, which were the basic
element of the act committed by respondent No.2. The record further failed to disclose
that any criminal case or even report was lodged by the petitioners or their father against
the respondent No.2 during all these years, in respect of the vehicles allegedly sold to
them by concealing of the facts. Further, a copy of F.I.R. is annexed with the present
petition, which disclosed that some vehicle was taken into custody from possession of
Haji Shaukat Ali/ respondent No.2, and the F.I.R. was lodged on 28th May, 1998 under
provisions of the Customs Act. But the father of the petitioners nowhere appeared in the
picture. In addition the report was only in respe ct of one vehicle, that too filed by police
official against respondent No.2, but what about the second vehicle, there is nothing on
record. Further, contrary to their pleadings, in the instant revision petition it is contended
that out of two only one veh icle was found to be stolen or smuggled, but there is no
explanation about the second one. There is no evidence about sale, and purchase of the
vehicles between predecessor -in-interest of the petitioners, and respondent No.2.
13. The second assertion made in the context was to the effect that though the vehicles
were returned to respondent No.2, but their (petitioners) predecessor was compelled to
transfer his share in un -partitioned property in favour of respondent No.2, who
succumbed to the pressure, and agreed to transfer his share comprising of 2546 square
feet, whereby the mutation entry was effected in the revenue record in the name of
respondent No.2, which in fact was result of coercion, fraud, and undue force. According
to the petitioners the proper ty being joint cannot be transferred in such a manner, as it has
not been partitioned. The contention so raised does not find support from the relevant
law. Sections 44 and 47 of the Transfer of Property Act, 1882 clearly provides transfer of
property by one co -owner or transfer by co -owners of shares in common property. Both
the sections read as under: --
"Section -44. Transfer by one co -owner. Where one of two or more co -owners of
immovable property legally competent in that behalf transfers his share of such
property or any interest therein, the transferee acquires, as to such share or
interest, and so far as is necessary to give effect to the transfer, the transferor's
right to joint possession or other common or part enjoyment of the property, and to
enforce a partition of the same, but subject to the conditions and liabilities
affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided
family is not a member of the family nothing in this section shall be deemed to
entitle him to joint possession or other common on part enjoyment of the house. "
"Section -47. Transfer by co -owner of share in common property. Where several
co-owners of immovable property transf er a share therein without specifying that
the transfer is to take effect on any particular share or shares of the transferors, the
transfer as among such transferors, takes effect on such shares equally where the
shares were equal, and where they were une qual proportionately to the extent of
such shares."
14. Keeping in view these provisions, the perusal of the questioned mutation entry
reveals that whole of the property was not transferred in favour of respondent No.2; rather
only an area of 2546 square f eet had been transferred from the name of Malik
Rehmatullah to Haji Shaukat Ali/respondent No.2. While the remaining property still
exists in the names of Asmatullah respondent No.1, and Malik Rehmatullah, predecessor -
in-interest of the petitioners. Theref ore, this ground is not available to the petitioners in
the circumstances.
15. But as far as the plea of coercion, and undue influence in effecting of this mutation
entry is concerned, it is available to the petitioners. But, the burden was on them to
establish the same. Sections 15 and 16 of the Contract Act, 1872 describe the term
coercion and undue influence, which read as under: --
"Section -15. Coercion defined .---Coercion is the committing, or threatening to
commit, any act forbidden by the Pakistan P enal Code or the unlawful detaining,
or threatening to detain any property, to the prejudice of any person whatever with
the intention of causing any person to enter into an agreement."
"Section -16. Undue influence .---(1) A contract is said to be inducted by "undue
influence" where the relations subsisting between the parties are such that one of
the parties is in a position to dominate the will of the other, and uses that position
to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a
person is deemed to be in a position to nominate the will of other.
(a) Whether he holds, a real or apparent authority over the other, or where he stands in
a fiduciary relation to the other; or
(b) Where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a
contract with him, and the transaction appears, on the face of it or on the evidence
adduced, to be unconscionable, the burden of proving that such contract was not
inducted by undue influence shall lie upon the person in a position to dominate the
will of the othe r.
Nothing in this subsection shall affect the provisions of section 111 of the
Evidence Act, 1872."
Therefore, it was the petitioners, who have to establish their case to cover it within
the meaning of sections 15 and 16 of the Contract Act, 1872. To e stablish their plea it
was to be established that respondent No.1 was in such a position, and in exercise of it he
dominated the will of Malik Rehmatullah, their predecessor, advance threats within the
meaning of section 15 of the Contract Act, 1872. But, the petitioners have failed to
produce any evidence to establish that the questioned mutation entry was obtained by the
respondent No.2 through coercion or undue influence. As no evidence to the effect was
produced. Furthermore, the plaint, and evidence fa iled to disclose the method through
which the plaintiff (predecessor -in-interest of the petitioners) was threatened or put under
influence for the purpose of effecting entry in Revenue Record. It further appears that
one of the brothers of the deceased pl aintiff namely Amanullah was witness of the
transaction, and effecting of the mutation entry, as his name, and signature appeared in
the Revenue Record. But, this person never appeared before the court, nor the petitioners
tried to produce him to establish their plea, despite the fact that he was the most important
witness in the circumstances.
16. In addition the plaint speaks about some amount of Rs.89,11,000 being the sale
consideration. But contrary to it this amount is described as loan in the instant petition.
But bare perusal reveals that the contents of the plaint are silent about obtaining of any
loan from respondent No.2 by predecessor -in-interest of the petitioners, which was
accumulated at an amount of Rs.80,00,000 (Rupees eight lacs). Even othe rwise, there is
no evidence to the effect. Furthermore, the plaint as well as evidence failed to disclose the
exact amount which was initially obtained as loan, which later on converted into such a
huge amount, which pressurized Malik Rehmatullah in effect ing of the questioned
mutation entry. There is complete failure on the part of the petitioners to establish the
same. Furthermore, no plea to the effect that the respondent No.2 belongs to "payment
mafia" and the transaction was also of same effect, was ta ken in the plaint. Rather, a new
plea has been taken at this stage, which is not sustainable.
17. As far as the second contention of the petitioners that the agreement dated 13th
April, 1998 was a product of fraud is concerned also needs consideration. It is
requirement of the law that the plaint must disclose the particulars constituting a fraud as
provided under Rule 4 of Order VI Civil Procedure Code, which reads as under: --
"Order VI Rule 4, C.P.C. Particulars to be given where necessary. ---In all case s in
which the party pleading relies on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence, and in all other cases in which particulars may
be necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and times if necessary) shall be stated in the pleadings."
But in present case the plaint failed to fulfil this requirement. As neither the plaint
disclose the particulars of the alleged act, nor even the date when said fraud came into
their knowle dge. Rather, a general plea was taken by them unable to disclose the nature
of the fraud. Even otherwise no evidence to the effect was produced by the petitioners.
Apart from mere assertion the petitioners never tried to get examined the signatures of
dece ased plaintiff Malik Rehmatullah by Handwriting Expert, nor even tried to call the
marginal witnesses, or the petition writer, who was author of the agreement, to establish
their contention. Therefore, the burden never shifted on respondent No.2 to prove t he
contrary.
18. The sequence of events as asserted by the petitioners are not established in view of
the above discussion. Rather, from the pleadings of the parties, and from the judgment of
the trial court it appears that two suits were filed by responde nt No.1 in respect of the
same property, which is matter in dispute in present case, against respondent No.2, and
predecessor -in-interest of the petitioners, which were dismissed by the trial courts. But
there is nothing on record, from which it can be asc ertained that whether any appeal was
preferred, and if so, what was its fate. As copies of these suits, and decision made therein
are not filed with the present petition, therefore, it is hard to ascertain that what were the
respective pleas of the parties . Therefore, the mere facts of filing the suits are not
beneficial to the petitioners, in the circumstances. But, it is apparent that both the said
suits were filed earlier in time then the instant suit. Therefore, in view of the facts it can
easily be pre sumed, that the predecessor -in-interest of the petitioners was in knowledge of
the agreement, but he approached the court later in time. This fact weakens his own plea.
As far as plea of coercion, and undue influence is concerned, it is also not establishe d,
thus they are not entitled for the relief on this ground too. Further, the petitioners or their
father despite having knowledge of the acts committed by the respondent No.2, but did
not approach the competent authorities, nor initiated any criminal acti on against
respondent No.2. Rather, they remained contended only on filing of the instant suit. Even
no evidence about prevailing practice of "Payment" was produced, nor it was their case
before the trial court. Therefore, they cannot take any benefit of i t.
19. As far as contention of the petitioners that some judgment had been passed by this
court pertaining to the cases of "payment", thereby some criteria was laid down, which is
to be adopted, and observed while making decision in the present case. But, it is amazing
that the petitioners failed to place on record the mentioned judgment nor their counsel
advance arguments to this effect. Therefore, they cannot take any benefit, if any, arriving
from the judgment, as it is not before this court. The petitio ners though raised plea of
coercion, undue influence and fraud, but without any specification, thus failed to fulfil the
legal requirement. Further the evidence produced by them was also of not such a standard
which can establish their specific plea. The t rial as well as the appellate court though
failed to analyze the material on record properly, but fortunately arrived to a right
conclusion. The petitioners have completely failed to establish their respective contention
there is no material on basis of wh ich it can be concluded that the questioned mutation
entry or the agreement were result of undue influence or fraud.
In view of above discussion, the petitioners have failed to make out a case in their
favour. The instant petition, being without merits, i s hereby dismissed, with no orders as
to costs.
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