JUDGMENT ALI NAWAZ CHOWHAN, J.-- The matter pertains to a piece of land measuring 17 Kanals, 7 Marais, situate in the revenue estate of -Chak No. 649/G.B, Tehsil Jaranwala, District Faisalabad. Ilam Din was the original owner of the property while the respondent, Alam Bibi claimed that she acquired her right through Sale-Deed bearing No. 964, registered on 7.5.1975 and on the basis of which Mutation No. 452 was sanctioned.
2. The present petitioner filed a suit for cancellation of both the Sale-Deed and Mutation on the ground that he had been defrauded. The following issues were framed by the learned Civil Judge:- "(1) Whether the registered Deed No. 964, dated 7,5.1975 is outcome of fraud and is liable to be cancelled? OPP.
(2) Whether the plaintiff has got no cause of action and locus standi? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether the' plaintiff is estopped by his own words and conduct? OPD
(5) Whether the form of suit is not correct? OPD
(6) Relief
3. The learned Civil-Judge decided the case in favour of the petitioner while making pertinent observations in Paragraphs 12 to 14 which are reproduced below:- "It is pleaded by the defendant in her defence that the plaintiff became a blind man before 6/7 years and she has been bearing the expenditure for the treatment of plaintiffs eyesight and the plaintiff was also operated in this connection. Defendant's defence based upon the two facts, firstly, that the plaintiff became a blind man before 7/8 years and secondly, she has been bearing the expenditures of the plaintiffs treatment. Plaintiffs blindness is directly involved in the suit because, the plaintiff is alleging that he was blind man at the time of execution of the registered deed in.
Question and bn the other hand, it is agitated by the defendant that plaintiff was not a blind man at the time of execution of the registered deed in question and he became blind man before 7/8 years, after the execution of the registered deed in question. The fact regarding the expenditures of plaintiffs treatment for his eyesight is also pleaded by the defendant in her defence. Though this fact is not directly relevant to the matter in, controversy but it had relevancy to the fact that whether the plaintiff became blind man before 7/8 years. If the defendant succeeds in establishing that she has been bearing the expenditures for the treatment of plaintiffs eyesight before 7/8 years, resultantly, the plaintiffs assertion about the blindness at the time of execution of sale-deed in question would be shaken and the defendant's defence would be strengthened by establishing this relevant facts. As it has been hereinbefore mentioned that all the witnesses of the defendant remained silent about this fact and moreover, the defendant himself has not produced any documentary or oral evidence upon this fact and she has badly failed to establish that she has' been bearing the expenditure for the treatment of plaintiffs eyesight before 7/8 years.
13. From the above observation, I am of the view, that due to the blindness, illiteracy and as being simpleton villager, the plaintiff has got all the privileges and protection of Pardanashin lady, In such a position, defendant was under heavily onus to refute the plaintiffs allegation that at the time of execution of the sale-deed in question he was a blind person and to prove that his eyesight was very well, he lost his . Eyesight after the execution of sale deed. But, unfortunately, defendant has failed to discharge the onus shifted on her by producing her cogent and solid evidence in her defence.
14. Keeping in view the above position, I have come to the conclusion that plaintiff has strongly established his allegation regarding his blindness at the time of execution of sale- deed in question, therefore, it is sufficient to believe that the defendant cheated and defrauded the plaintiff due to his blindness and got executed the registered deed In question instead of mortgage deed.
Blindness of the plaintiff is sufficient to shake the credibility and validity of the sale-deed in question, because, a blind man could not see that what was executed on his behalf and he would have to believe the defendant's word that the mortgage deed was executed in her favour but actually she got executed the registered deed in question."
4. When the matter was taken in appeal, the learned Additional District Judge upturned the same.
5. The learned counsel for the petitioner has argued that in such a close relationship as the present one and in case the sale had taken place, the plaintiff would not have> filed such a suit, that the marginal witnesses were not the witnesses of the attestation of the Sale-Deed and that the Sale- Deed and th6 Mutation were got executed* due to fraud.
6. The learned Additional District Judge reversed the finding of the learned Civil Judge mainly on the ground that the onus which was placed on the plaintiff had not been discharged. While doing so, he made no reference to the evidence nor did he appreciate the consequences of the blindness of the plaintiff. He also forgot to discuss the fact that it was the defendant's own case that she had been paying him money for the treatment of the eyesight which established that the plaintiffs plea that he was blind at the relevant time, was not baseless. What would be the rights of a handicapped man? Learned Civil Judge was of the view that the same rights would accrue to the plaintiff in such a condition as are meant for a Pardanthus lady. Whereas, the first Appellate Court had completely ignored this aspect of the case and insisted that a strict proof was necessary in case of a bind man.
7. Having gone through the judgments of the Courts below, which are at variance, this Court would like to side with the judgment of the Civil Judge which is upheld and the judgment of the learned Additional District Judge is set aside.