This civil revision assails judgments and decrees dated 16.2.1994 and 10.12.1996 passed by the learned. Civil Judge and learned District Judge, Mandi Bahauddin, whereby suit for declaration filed by the petitioners was dismissed and their appeal thereagainst failed, respectively.
2. Precisely, relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief, claiming that they inherited land measuring 28 Kanals 9 Marlas, detailed in the plaint, which was in their actual physical possession. They pleaded that Mutation No, 62 dated '31.8.1988 showing sale of the said land in favour of the respondents was fake, fictitious and void being result of fraud and misrepresentation as they never entered into any bargain of sale with the respondents and did not receive any sale consideration from them. They also averred that respondents be restrained permanently from interfering into their lawful possession on the basis of the fake mutation and be stopped from alienating the land, pending suit to anybody else by any means whatsoever. Claim of the petitioners was that the land was inherited by them from Mst. Rehmat Bibi, Mst. Saidan Bibi and Muhammad Ramzan and contended that they are illiterate and simple villagers and have no knowledge of sanctioning of mutation of which the respondents taking advantage, fraudulently represented that they will help them in having the land sanctioned in their favour by way of inheritance. According to them, they accompanied the respondents to the Revenue Officer, where they were made to thumb mark certain papers which subsequently revealed, to have been' converted into sale Mutation No, 62 dated 31.8.1988.
3. Respondents being defendants in the suit, controverted the allegations in the plaint by filing their written statement, wherein they pleaded that they are bona fide purchaser for an amount of Rs, 1,50,000/- which they paid to' the petitioners and took over possession under the sale. Controversial pleadings of the' parties necessitated framing of issues and recording of evidence. Pending suit, petitioners moved an application under. Order XXXIX, Rule 2(3) CPC, alleging that respondents have taken over forcible possession on 27.12.1990. This allegation of forcible dispossession was also denied by the respondents, which also necessitated framing of certain additional 'issues and recording of evidence. The learned trial Judge, who was seized of the matter, at the conclusion of 'the trial. dismissed the application under Order XXXIX Rule 2(3) CPC vide his order dated 16.2.1994 and simultaneously dismissed the suit of the petitioners mainly on the ground that the petitioners were not in possession of the land in dispute at the time of institution of the suit, thus suit for simple declaration without seeking relief of possession was not maintainable, under law.
4. Petitioners aggrieved of the decision of the trial Court dated 16.2.1994, filed an appeal before the learned District Judge, but remained unsuccessful, as the same was dismissed vide his judgment and decree dated 10.12.1996. Petitioners thereafter filed instant revision petition, which was admitted to regular hearing and after completion of service, has now been fixed for final determination. Respondents were served and were represented through Mian Muhammad Ashraf Tanvir, Advocate, but inspite of appearance of his name in the daily cause list and repeated calls, no body has turned up to defend this petition. Hence they are proceeded against exparte.
5. Learned counsel for the petitioners submitted that though forcible dispossession of the petitioners pending suit was proved on the file, yet in absence of petitioners' possession over the land in question, suit for declaration was maintainable under law because it was a suit under Section 39 of the Specific Relief Act, 1877 for cancellation of mutation, fictitiously attested on their behalf. According to his submission, a suit for simple declaration for cancellation of certain document is not bad, if the plaintiffs do not seek further relief of possession. He further contended that transaction of sale, payment of price and transfer of possession to the respondents was not proved, thus suit of the petitioners has incorrectly been dismissed by the two Courts below. He further elaborated his arguments by saying that petitioners include Parda observing ladies and all are illiterate villagers and this fact comes to support averments in the plaint and after denial of transaction, onus to prove sale through positive evidence shifted on the shoulders of the respondents which has not been discharged by them, but a contrary view taken by the two Courts below is not in accordance with the evidence on the file which has seriously been misread. Learned counsel for the petitioners further submitted that inspite of scarcity of evidence in support of the sale transaction, the same is discrepant and self-contradictory hence in presence of such evidence,' suit of the petitioners should have been decreed. He in this behalf, relied on the cases of Mst. Mahmooda Begum and others vs. Major Malik Muhammad Ishaq and others (1984 SCMR 890), Mst. Fazal Jan vs. Roshan Din and 2 others (PLD 1990 SC 661), Janat Bibi vs. Sikandar Ali and others (PLD 1990 SC 642), Irshad Hussain vs. Ijaz Hussain and 9 others (PLD 1994 SC 326) and Baggu vs. Mst. Roshan Bibi (PLJ 1996 Lahore 989).
6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Petitioners include Parda observing illiterate ladies ,and by filing their suit they denied the transaction of sale by them in favour of the respondents. It is settled by this time that after denial of any transaction, onus to prove through positive evidence shifts on the shoulders of the beneficiary. Besides it, mutation is not a document of title, but is only its evidence and this being the position, transferee is needed to prove not only the bargain, but also payment of settled price and transfer of possession thereunder. The Honourable Supreme Court has very graciously mandated in a number of judgments that after denial of transaction, onus to prove it by positive evidence shifts on the beneficiary. Reference in this behalf can be made to the cases of Janat Bibi vs. Sikandar Ali and others (PLD 1990 S.C. 642) Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another vs. Muhammad Manzoor and another- (PLD 1996 S.C. 256) and Muhammad vs. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354). Respondents in order to discharge the onus of proof shifted 'towards them have examined three witnesses including statement of Ghulam Haider Respondent No, 1 as D.W. 1.
He deposed that they purchased the land for an amount of Rs, 1,25,000/- which was paid to the petitioners at the time of bargain at the house of the petitioners, in presence of the vendors and his two sons. According to this witness after having the mutation of inheritance sanctioned in favour of the petitioners sale mutation was attested at the house of the Tehsildar. The other witness is DW. 2 Dost Muhammad son of Lal Khan, who is a Lambardar of the village and stated in his cross- examination that he is not aware of the bargain or payment of the sale price as the same was not paid in his presence. He further stated that Mst. Rasulan is illiterate whereas Arif one of the plaintiffs is educated of one or two classes and Anwar is educated, but his education is not in his knowledge.
According to this witness, the mutation was sanctioned in "Dara" owned by the respondents and at that time Ghulam Haider PW. 1 was not present. He further stated that at the time of sanctioning of mutation the village was under consolidation as such the mutation was attested by consolidation officer and not by the Tehsildar, which was sanctioned at about .200 p.m. The next witness is DW. 3 Muhammad Ashraf Respondent No, 2 who stated nothing except that they purchased the land for an amount of Rs, 1,25,000/-. This witness is absolutely silent about bargain, actual payment of price and transfer of possession under sale. This is the entire evidence produced by the respondents to prove sale in their favour. It is in the evidence of the respondents that a criminal case was registered pending suit with regard to forcibly taking over possession by the respondents which, according to them, stands cancelled. Case of the petitioners was that they were made to thumb- marked certain blank papers under the garb of sanctioning of mutation of inheritance at the behest of the respondents, which assertion gets support from the statement of P.W.
1. Statements of both the D.W. 1 and D.W. 2 are at variance to the place of sanctioning of mutation and payment of price to the respondents. Ghulam Haider D.W. 1 stated that he at the time of bargain was accompanied by his two sons one of whom went to Patwari for entry of sale in their favour, but none of those two has been produced to lend support to the claimed sale. Neither Patwari who entered the mutation was produced nor the officer attesting mutation of sale in favour of the respondents was examined. Respondents claimed that they made the entire payment at the time of bargain at which time no document was executed. It is not explained as to why receipt at least was not Obtained while paying a handsome amount to the petitioners or at least why some independent witness was not arranged to watch the payment. Self serving statement of DW. 1 and DW. 3 who are interested being parties, without substantial corroboration from DW. 2 with regard to bargain and payment of price, do not furnish solid basis for holding that the bargain was actually struck, payment was made and possession under the sale was taken over by the respondents.
7. Undeniably, Mst. Rasoolan Bibi one of the petitioners, was illiterate, villager. and Parda observing lady, who is not expected to understand the intricate procedure of maintenance of sanctioning of revenue record. Such like women are protected under law and the, persons deriving title from them, are supposed to prove that such ladies were given some independent advice and that they had opportunity of consulting some well versed persons related to them or otherwise, before parting with their immovable properties. Muhammad Arif and Muhammad Anwar, her sons, though are not much educated but were claimed to be under influence of the respondents with whom Muhammad Anwar was said to be employed as a driver and was under their influence, thus company of these two sons especially viewing the circumstances ,discussed in the foregoing paragraph does not serve the purpose of law. Though DW. 1 has denied employment of Muhammad Anwar petitioner, yet it flows from the statement of other two witnesses that he has some subordination to the Respondent No 2 and in this state of affairs, I am constrained to hold that the petitioners should have been provided some independent advice or they should have been made to understand the transaction of sale, which was allegedly got sanctioned under the garb of sanctioning of mutation of inheritance, which are though not of the same date, but are simultaneous and seriatim. My this view is fortified by a chain of judgments, few of those are Mt.
Farid-un-Nisa vs. Munshi Mukhtar Ahmad and another (AIR 1925 Privy Council 204), Muhammad Isa Khan (deceased) represented by Khalida Adib Khanam and others vs. Muhammad Hussain Khan and others (PLD 1954 Peshawar 39), Subedar Suleman Khan versos Mst. Makhmal Jon and another (PLD 1974 AJK 106), The National Electric Radio, Refrigeration Co. (Pakistan) Ltd., Karachi vs Messrs Sachiliae Lauri). Naples (Italy) and 3 others (PLD 1977 Karachi 264), Mst. Mahmooda Begum and others vs: Major Malik Muhammad Ishaq and others (1984 SCMR 890), Faiz-ul Hasan Shaikh vs. Anzar Ahmad Siddiqui (PLD 1985 Karachi 43), Mst. Fazal Jan vs: Roshan Din and 2 others (PLD 1990 SC 661), and Baggu vs. Mst. Rahman Bibi (PLJ 1996 Lahore 989).
8. Primary thing which weighed with the two Courts below in non-suiting the petitioners is that they could not prove their forcible dispossession pending suit, as claimed by them in their application under Order )(XXIX, Rule 2(3) CPC and thus their simple suit for declaration without claiming possession of the land in question was not maintainable. Tenor of the plaint shows that the suit was aimed at to have Mutation No, 62 dated 31.8.1988 adjudged being fake and fictitious. This kind of suit is under Section 39 of the Specific Relief Act, 1877 and not under its Section 42 which bars suit when the petitioners being in a position to seek further relief of possession, cannot maintain declaratory suit. Controversy regarding maintainability of suit for cancellation of any document in form of declaration, has been put to rest and it has been held that the suit like the one in hand is maintainable at law. In this behalf, reference can be made to the judgment in the case of Ahmad vs. Mst. Fateh etc. (1981 CLC 43) scan of case law shows that suit of the petitioners could not have been dismissed Simply for the reason that they failed to claim possession of the land in question, which was allegedly taken over by the respondents, pending suit. It goes without saying that had the two Courts below have been of the view that petitioners cannot succeed on account of their failure to seek further relief of possession, a direction to them should have been issued for inclusion of relief of possession in their plaint and if they failed to amend the plaint suitably, then there should have been some logic in the judgments and decrees impugned. dismissing their suit, according to law, laid down by the . Honourable Supreme Court in the cases of Baboo Khan vs. Municipal Committee, Murree and another (1969 SCMR 29). and Mst.
Khudeja vs. -Jehangir Khan and 37 others (1971 SCMR 395) and by this Court in the case of Ahmed etc. v. Fuzal Muhammad ( PLD 1978 Lahore 1394). But since this was not a requirement as discussed above. I am of the view that suit of the petitioners has incorrectly been thrown out.
9. For what has been discussed above, I am of the considered view that both the Courts below have not properly considered the evidence on the file and their judgments run counter to it and at the same time, the settled principles of law have been misapplied thus both the judgments and decrees dated 16.2.1994 and 10.12.1996 being not sustainable and are set aside, by accepting the instant revision petition, with the result that, suit of the petitioners is ordered to be decreed as prayed, with no order as to costs.