' Through this civil revision petitioner Fatima Bibi, daughter of Karam Dad has challenged judgment and decree, dated 24-4-1993 passed by learned Additional District Judge, Nankana Sahib, whereby he accepted the appeal of the respondent (Kaneez Fatima Bibi). The learned Additional District Judge dismissed the suit of the petitioner by setting aside judgment and decree of acceptance, dated 6-2-1991 of the learned Civil Judge.
2. This civil revision arose from a suit filed by the petitioner to seek declaration qua her title to the suit-land and to avoid exchange deed registered as Document No.4379 on 26-10-1983 and Mutation No.113, dated 29-3-1984 incorporating the said exchange purportedly for the land of the parties. Contesting written statement was filed by the respondent through her real brother and general attorney, Muhammad Tufail. Issues were framed by the learned Trial Judge. Evidence was recorded. The learned Civil Judge, through judgment and decree, dated 6-2-1991, decreed petitioner's suit by holding that Muhammad Tufail, i.e. Patwari, had committed fraud to obtain the exchange deed and registration thereof from the petitioner in favour of his real sister Kaneez Fatima. On appeal by the respondent, the above referred judgment and decree was set aside by the learned Additional District Judge who dismissed the suit filed by the petitioner through judgment and decree, dated 24-4-1993. Hence the present civil revision.
3. The learned counsel for the parties read out the pleadings as well as the evidence in view of the divergence of judgments and decrees of the learned Courts below. I have considered the submissions of the learned counsel for the parties and have also examined the record.
4. The main thrust of petitioner's pleading in her suit was that Muhammad Tufail (D.W.3), i.e. Patwari, being brother and general attorney of the respondent committed fraud upon the petitioner when she went to him for filing a case against her husband. And after obtaining her thumb-impressions, he contrived the exchange deed and obtained its registration showing exchange of her expensive land with that of the much less valuable land of the respondent. And that the fraud was committed by Muhammad Tufail Patwari by taking advantage of her helplessness, illiteracy, unawareness and simplicity etc. It has not been denied by Muhammad Tufail (D.W.3) that petitioner was a simple illiterate and a Pardanasheen lady. Under these circumstances, the onus was heavy upon the respondent Kaneez Fatima (in whose name the exchange was contrived by Muhammad Tufail Patwari, her real brother and attorney) to prove as beneficiary of the transaction that the transaction of exchange was genuine, reasonable, fair and was made with full conscious mind and comprehension of the transaction by the petitioner who knew and understood the nature of the transaction. The intriguing aspect of the present case is that respondent Kaneez Fatima neither submitted the written statement herself nor did she appear as a witness to support the transaction in her favour as its beneficiary. The written statement was submitted by Muhammad Tufail who also appeared as D.W.3. Said Muhammad Tufail Patwari was although real brother and general attorney of respondent Kaneez Fatima, but the entire allegation of fraud as above stated was upon Muhammad Tufail (D.W.3). Under these circumstances, in order to prove bona fide of transaction, respondent should have personally appeared as a witness in her own case as defendant, particularly in view of the fact that Muhammad Tufail (D.W.3) in his statement categorically stated that he was not present during negotiations between the ladies settling the terms of exchange but he was only directed by the said ladies to get the exchange deed registered. As observed by the learned Civil Judge in his judgment, dated 6-2-1991, respondents failed to produce any witness to prove the terms of the transaction and the nature of negotiations held between the parties. The document produced in evidence by the petitioner shows that her land was irrigated by canal water as well as by Government tubewell installed thereabout while respondent's land was being irrigated only through a private tubewell which as per the purported terms could only be used by the petitioner for a period of five years and that too upon payment of 1/5th of the share. This term was an onerous term reflecting unfairly upon the transactions. Respondent also failed to produce one of the marginal witness of the exchange deed. Only one Ch. Muhammad Anwar, Advocate, was produced as D.W.2 who admitted to have close relationship and friendship with Muhammad Tufail Patwari (D.W.3), while D.W.3 himself denied having cordial relations with D.W.2. This contradiction also proved the incredibility of the statement of these witnesses of the respondent. The other marginal witness, Muhammad Yousaf, was admittedly maternal uncle of the respondent and Muhammad Tufail Patwari (D.W.3) and could have been produced easily by them. They, however, opted to withhold the evidence of Muhammad Yousaf, thus leading to adverse inference against the respondent and Muhammad Tufail, Pawari, and that had Muhammad Yousaf been produced, he would have deposed against them and that Muhammad Yousaf had not actually witnessed any transaction at all.
5. The learned Civil Judge very validly and properly recorded his conclusion in the words that:-- "In these circumstances I do feel that the version of the plaintiff which is also to some extent corroborated by Ch. Muhammad Anwar Advocate who stated that the plaintiff was brought to him for consultation in order to file a suit against her husband; that Muhammad Tufail, Attorney of the defendant by exercising undue influence over a simple, illiterate and village lady and on the pretext of filing a suit got her thumb impression on certain papers which were later on given the shape of an exchange deed Exh.D.1 most probably seems to be correct. It can be safely said that firstly the plaintiff had not executed the exchange deed Exh.D.1 and secondly if she had thumb marked the paper Exh.D.1, then she was not aware of the contents of that document as admittedly at that very time no relation of her who could advise her properly was present and that the exchange deed Exh.D.1 could be the result of undue influence and the outcome of fraud. The learned counsel for the defendant vehemently submitted that the parties had exchanged the lands after the execution of Exh.D.1 and for that he has referred to Khasra Girdawarids. The stand of the defendant is that the land which was previously owned by the plaintiff and given to the defendant in exchange in Teshil Nakana Sahib is being cultivated by Muhammad Hanif but Muhammad Hanif has not been examined by the defendant. No doubt the Khasra Girdawari is a public document but it does not carry a presumption of truth and particularly in the peculiar circumstances of this case where one of the parties i.e. Muhammad Tufail, the general attorney of the defendant is himself a Patwari. The learned counsel for the plaintiff submitted that the possession of the disputed land is still with the plaintiff and the entries in the Khasra .Girdawari of Kasur that the plaintiff herself is cultivating the land speak nothing but fraud and collusion having been got recorded by the interested party as the plaintiff, according to her statement has been living in a Darbar in Tehsil Nakana Sahib having been ousted from her house and the food is being provided to her by her sons. Apart from all this, it does not appeal to a rational mind that if there was no fraud and undue influence why the plaintiff would exchange her superior land which fact has been admitted by Muhammad Tufail D.W.3 in cross-examination to that of less and inferior land and that too situated in Tehsil Kasur whereas the plaintiff is permanently resident of Tehsil Nakana Sahib. For the foregoing reasons I am of the considered view that the exchange deed Exh.D.1 was never executed by the plaintiff and that the same was the outcome of fraud, undue influence and without free consent of the plaintiff."
' The learned Additional District Judge preferred not in meet the above reasons and recorded his judgment without proper and due evaluation of evidence.
6. For the above reasons, this civil revision is accepted. The judgment of the learned Additional District Judge, dated 24-4-1993 is set aside and judgment and decree, dated 6-2-1991 of the learned Civil Judge is restored with the result that petitioner's suit shall stand decreed in her favour and against the respondent with no order as to costs.