Law contained in Order VI Rule 4 CPC which contemplates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence,

9. Now, I address the other fact in issue. This is the case in which transactions of gift incorporated in mutations No.3760, 3847, 3846 and 3850 were questioned by the plaintiff on the ground of fraud and misrepresentation. The Trial Court, therefore, framed issue No.2 i.e. whether mutations of Hibba No.3760 (17.02.1998), 3847 (16.06.1999), 3846 (16.06.1999) and 3850 (26.08.1999) are against law and facts, null and void on rights of plaintiff Tahira Parveen? OPP; and, issue No.3 i.e. whether plaintiff Tahira Parveen is entitled to the decree for declaration alongwith consequential relief for perpetual injunction as prayed for? OPP. The onus to prove the said issues was placed upon the plaintiff. The Courts below decided these issues on the basis of provisions of law contained in Order VI Rule 4 CPC which contemplates that in all cases 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 date and items if necessary) shall be stated in the pleading. Applying the above said provisions of law, the issue No.2 was decided against the plaintiff on the ground that the plaint of the plaintiff was lacking particulars of fraud. I am afraid the Courts below while returning findings on this issue not only mis-read and non-read the contents of plaint but were also misdirected in law. The contents of plaint of the plaintiff were required to be appraised on the basis of two fundamental facts of the case, that is, firstly, that the plaintiff is real daughter of the deceased Ghulam Qadir whereas defendant No.1 is step brother of Ghulam Qadir; and, secondly, that initially, the suit land stood transferred through oral gift by way of two mutations i.e. mutation No.3760 dated 17.02.1998 and mutation No.3847 dated 16.06.1999 in favour of Fatima Bibi, who was mother of Ghulam Qadir and subsequently the said land stood transferred in favour of defendant No.1 by way of mutation No.3846 dated 16.06.1999 and 3850 dated 26.08.1999. The allegations of the plaintiff were that defendant No.1 was a cunning and sneak person; that neither there was any offer and acceptance of gift nor there was any occasion to make any gift in favour of Fatima Bibi; that her deceased father neither appeared before any revenue officer nor he thumb marked any document in this regard; that possession of the land was also not delivered to defendant No.1; and, that the defendant No.1 through fraud and in collusion with the revenue staff got transferred the suit land in his favour by way of a fake oral gift so as to deprive her of her right of inheritance. Aforestated allegations pointing fraud and misrepresentation in the sanctioning of disputed mutations as per principle settled in the case of “Mst. Kulsoom Bibi and another v. Muhammad Arif and others” (2005 SCMR 135) were sufficient to meet the requirements of Order VI Rule 4 CPC.  

Part of Judgment

 THE LAHORE HIGH COURT LAHORE 

Civil Revision

1777836.955-15

2018 LHC 701