' The respondent/plaintiff filed a suit for specific performance of an agreement in respect of the suit property fully detailed and described in the plaint. Issues were framed. Both the parties produced their respective evidence. The learned trial Court decreed the suit of the respondent/plaintiff subject to deposit of Rs.48,000, balance amount, within a period of 15 days. An appeal was preferred by the petitioner. The learned Additional District Judge dismissed the appeal by affirming the judgment and decree of the learned trial Court. The petitioner assails both the judgments and decrees through this civil revision.
2. The learned counsel for the petitioner contends that the judgments and decrees of both the learned Courts below suffer from misreading/non-reading of evidence; the petitioner while appearing as D.W.4 categorically denied her thumb-impression on the agreement to sell. It was further added that the agreement to sell was the result of fraud and heavy onus lay on the plaintiff to prove the execution of the agreement.
3. On the other hand, the learned counsel for the respondent supported the judgments of both the learned Courts below. It was urged that agreement to sell was proved through the statements of Bashir Ahmad, the scribe and Hakim Ali, the marginal witness.
4. I have carefully considered the respective contentions of the learned counsel for the parties and perused the record.
5. The learned trial Court framed the issues, which did reflect the controversy raised in the pleadings. The onus was, also, wrongly placed on the petitioner. Since, the parties were alive to the controversy, produced their respective evidence fully cognizant of their respective stand, causing no prejudice. The placement of onus will have no bearing to the merits of the case.
6. The learned trial Court in its impugned judgment, however, held that the onus was placed on the petitioner/ defendant, therefore, she was called upon to get her thumb-impression compared from the Finger Print Expert but she failed to do so. The learned Appellate Court on the same parity of reasoning dismissed the appeal of the petitioner.
7. The first question which begs answer is whether . The defendant executed the agreement Exh.P.1.
The plaintiff examined Bashir Ahmad, petition writer as P.W.1. Stamp paper of the agreement to sell was purchased by Bashir Ahmad as it appears on the over-leaf of the Exh.P.1. The petitioner/defendant did not appear before the Stamp Vendor. Neither, she purchased the stamp paper nor thumb-marked the same. P.W.1 scribe stated that he was working as Clerk of a counsel in the premises of Tehsil compound of Zila Katchary. He stated that when he drafted Exh.P.1, the petitioner. Rehmat and Hakim Ali were alone present. Before scribing this document, the petitioner was not known to him. He stated that a sum of Rs.18.000 was paid to the defendant in cash, on that day. Hakim Ali, P.W.2, stated that Exh.P.1 was written in his presence. He signed the same. Her husband also thumb-marked. The contents of Exh.P.1 were read over to the defendant. In cross- examination this witness stated that he does not know the names of children of the petitioner. She is a woman of 70 years of age and illiterate. Her husband is also an illiterate person. He stated that at the time of sale the value of the land in dispute ranged between Rs.4,000 to Rs.6,000. Mst.
Bhagan Bibi did not inform as to why she is selling the land. The land in dispute was in possession of the plaintiff befor the execution of Exh.P.1. Bahadar Ali, P.W.3 is not a witness of the alleged agreement to sell but he deposed that the petitioner agreed to transfer property by way of Exh.P.1.
In cross-examination, he stated that at the time of agreement the plaintiffs were in possession of 60 Killas of uncultivated land. They had no business. They were cultivating the land on Batai. The earnest amount of Rs.17,000 was obtained by them on loan. He also stated that at the time of agreement, son of Mst. Bhagan was aged about 10/15 years. None of her children was married.
Anwar Ali, P.W.4, supported his case as set up in the plaint. In cross- examination he stated that Mst. Bhagan had five sons. He is not aware of her female issues. They maintained good relations before the dispute. Mst. Bhagan had no intention to marry any of her children at the time of agreement. She needed amount in dispute for expenses in a criminal case. He stated that he had obtained part of amount on loan from some person. He claimed to have purchased stamp paper himself.
8. Apparently there was no reason for the sale of the land by the defendant, when her children were yet to be married. She had no imminent need for the amount. One of the plaintiff Anwar Ali stated that she needed the amount to defend criminal case but nothing was brought on record to prove that some case was pending against her sons.
9. Hakim Ali stated that the suit property was barren and uncultivated. Its market value at the time of agreement---ranged between Rs.4,000 to Rs.6,000. If that is the position, then why the plaintiff agreed to purchase the property for a sum of Rs.65,000. More particularly, when Bahadar Ali, P.W.3 stated that the petitioners were not in possession of sufficient source to purchase the property.
They arranged an amount of Rs.17,000 by obtaining loan from different persons. P.W.4 to some extent also admitted of obtaining loan to pay earnest amount.
10. Hakim Ali is the only marginal witness supporting the plaintiff's case. Rehmat Ali, husband of the petitioner denied the execution of the agreement to sell by petitioner. He refuted suggestion of having thumb-marked Exh.P.1. Mst. Bhagan Bibi also denied to have thumb-marked the agreement to sell. P.W.1, scribe did not know the defendant personally. Mst. Bhagan Bibi's identity card number is not mentioned in the agreement. When defendant and her husband denied execution of the agreement, it was incumbent upon the plaintiff to ask for comparison of their thumb-marks with the admitted thumb-marks of the defendant. The learned trial Court observed that the defendant should have asked for comparison of their thumb-marks. The reasoning of the learned trial Court affirmed by the learned Appellate Court is not based on correct enunciation of law. The onus lay on the plaintiff to prove execution of the document. In case of failure, his suit was bound to end in dismissal.
11. Mst. Bhagan Bibi is an old-aged woman. She was illiterate. Her husband is also an illiterate person. Their alleged thumb-marks on Exh.P.1 has not been proved satisfactory, through positive evidence. Ignorant villagers and agriculturists like Rehmat Ali, husband of Mst. Bhagan Bibi are to be treated at par with Pardanashin lady. Both were not in possession of any independent advice.
Reliance can be placed upon Mst. Allah Jowai v. Wali Dad and another 1997 SCM R 1456 and Mst.
Basri through L.Rs. And others v. Abdul Hamid through L. Rs. And others 1996 M LD 1123.
12. In view of the above discussion, this appeal is allowed, the impugned judgments and decrees passed by the learned Appellate Court dated 26-3-1995 and of the learned Appellate Court dated 21-1-1998 are hereby set aside and consequently the suit of the respondents is dismissed with costs.