This second appeal assails judgment and decree dated 23.12.2003 passed by the learned Additional District Judge, Depalpur, whereby appeal of the respondents was accepted and their suit for specific performance was decreed, reversing judgment and decree of the Trial Court dated 20.4.1999.
2. Precisely, relevant facts are that the respondents filed a suit for specific performance of an oral agreement to allegedly arrived at between them and deceased Mst. Allah Jawai, who were brother and sister, inter-se. The respondents pleaded in their plaint that Mst. Allah Jawai agreed to sell her land measuring 66 kanals 2 marlas detailed in the plaint for a consideration of Rs. 4,00,000/- and after receiving entire sale price got recorded her statement in the daily diary (Roznamcha Waqiyati) No. 30 dated 26.9.1995 with the concerned patwari on the basis of which mutation No. 945 was entered. It was further pleaded that on account of death of Mst. Allah Jawai, the mutation No. 945 could not be sanctioned and was cancelled by the revenue officer vide his order dated 29.11.1995 and instead a mutation of inheritance was subsequently Sanctioned on 25.2.1996.
According to the respondents, mutation of inheritance sanctioned in favour of the appellants is void during the currency of their agreement to sell with Mst. Allah Jawai which they are bound to perform through execution of a sale-deed being her heirs/legal representatives.
3. The appellants being defendants in the suit contested it, denied the asserted agreement to sell, refuting the receipt of sale price by late Mst. Allah Jawai and pleaded that the "'Rapt Roznamcha" was take and fictitious, in their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence, The learned trial Judge who was seized of the matter, after doing the needful vide his judgment and decree dated 20.4.1999 dismissed the suit of the respondents.
4. The respondents aggrieved of the decision of the Trial Court dated 20.4.1999 filed an appea' before the learned Additional District Judge where they succeeded as their appeal was accepted, their suit was decreed and judgment and decree of the Trial Court was set aside. Thereafter the appellants filed the instant appeal which after notice to tile respondents, has now been laid for final determination. The respondents are represented through their counsel.
5. Learned counsel for the appellants submitted that after denial of transaction of sale, onus to prove through positive evidence, not only the sale transaction but also the payment of price thereunder shifted onus on the shoulder of the respondents but they have not produced any evidence tc this effect thus, their suit could not have been decreed. I was also contended that respondent No.1 stood in an active fiduciary relationship with deceased Mst. Allah Jawai being his real brother, was required to prove good conscience of the transaction but the file is absolutely thirsty of the proof on this aspect of the case. He further submitted that Mst. Allah Jawai was not only a pardah observing lady but was also an illiterate villager and that such ladies are protected under .Law and the beneficiary of the transaction from this lady is needed to prove that such lady being tile vendor was provided with some independent advise before parting with her immovable property. According to him. Mst. Allah Jawai was succeeded by the appellants who are her husband and children but none of them has been shown to have associated in the transaction which negatively reflects on it. Learned counsel for the appellants further elaborated his arguments by saying that though there is no proof of the oral agreement as asserted by the respondents, yet the persons who prepared at the time of entering of mutation have not been produced in the witness-box and that being the direct evidence, available to them non-production of them, will lead to an adverse inference/presumption. He also submits that the appellate Court below incorrectly decreed the suit of the respondents, out of his findings which run counter to the evidence on the file and that the appellate Court has erroneously not considered the points evolved in the judgment impugned there before.
6. Learned counsel for the respondents refuted the arguments of the appellants, supported the appellate judgment/decree and urged that the respondents have proved the sale by Mst.. Allah Jawai by producing PW-1 to PW-3 and thus their suit was rightly decreed by the appellate Court. He also contended that scope of second appeal is very narrow, within which, findings of fact, recorded by the first-appellate Court, cannot be interfered with. In support of his arguments, he relied on a judgment reported as (AIR 1976 SC 163).
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined, the record, appended herewith. Though the appellants have claimed that Mst.
Allah Jawai died just after 15 days from the date of entering of mutation No. 945 yet according to statement of spondent No.1 (PW-1) Mst. Allah Jawai died after. 4/5 days of reporting the alleged sale to the Patwari which was entered by him in his daily diary vide Rapt No.30 dated 26.9.1995. I have no reasons to disbelieve statement of PW-1 regarding death of Mst. Allah Jawai which in itself shows that Mst. Allah Jawai was in disposing position when the sale was allegedly reported to the Patwari because according to PW-1, she did not die instantly but her death occasioned after remaining sick. Ex.F'. 1, which is the main stay of the respondents, does not Carry any thumb impression of Mst. Allah Jawai. It does not demonstrate that any of her family members including her husband or young sons associated her at the time of reporting of the alleged sale. The appellants had specifically denied the bargain/transaction of sale, receipt of sale price by Mst.
Allah Jawai and transfer of possession by her, under it. After this denial, onus heavily shifted on the shoulders of the respondents to prove through positive evidence that the transaction of sale was struck between them and Mst. Allah Jawai, they had paid the sale price and took over the possession of the land under the transaction, as held by the Hon'ble Supreme Court in the case of Hakim Khan Vs. Nazeer Ahmad Lughmani and others (1992 SCMR 1832). A similar view was taken in the cases of Mst. Bakht Bano Vs. Mst. Zainab Khatoon (1991 MLD 2389), Niaz Ali and 16 others Vs. Muhammad Din through Legal heirs and 13 others (PLD 1993 Lahore 33) and Mst. Rasul Bibi Vs. Nasrullah Khan (1994 CLC 1774). In order to discharge this onus, respondent No.1 himself appeared as PW-1 but did not utter a word regarding bargain or transaction in his favour except stating that he had paid the entire sale price of Rs.4,00,000/- in presence of Allah Ditta, Yasin and Shafi Muhammad. PW-2 Allah Ditta, though deposed regarding payment of Rs.4,00,000/- by the respondents but .Did not state any thing about the bargain. Similar is the statement of Muhammad Yasin PW 3. Both these PWs 2 and 3 have not stated as to how they were involved in transaction between brother and sister and how they happened to be there, at. The time of payment of the alleged price. The respondents have not produced any evidence showing that from where they got such a huge amount, as to whether if was brought by them from any Bank or was borrowed by them from any relation or friend. There is no explanation of any kind that the respondents after paying the entire sale price why did not get the sale-deed executed and if at all, it was not done on account of illness of Mst. Allah Jawai why some receipt or at least some agreement was not got executed. There is no explanation worth the name that had Mst. Allah Jawai gone to the office of Patwari for reporting of this alleged sale, .Why her thumb impressions were not obtained on Ex.P.1 and as to why her Identity Card was incorporated therein. Respondent No.1 is also a real maternal uncle of the appellants who cannot be imagined to take any unfounded stand against their real uncle. Be that as it may, in absence of any independent proof of, bargain or transaction, the respondents cannot be held to be owners to the properly on the basis of very thin statements of two persons who' have not shown their interest in the property or with the parties.
8. Mst. Allah Jawai who died just after 4/5 days of the transaction, the alleged transaction was allegedly an ailing, old, illiterate and villager lady who was protected under law, into she needed some independent advise before entering into any transaction concerning her immovable properties as held in a number of cases, reference to a few of those can be made in the cases of Mt. Farid-un-Nisa Vs. Munshi Mukhtar Ahmad and another (AIR 1925 Privy Council 204), Muhammad Ise Khan (deceased) represented by Khalida Adib Khanam and others Vs. Muhammad Hussain Khan and others (PLD 1954 Peshawar 39), CL.R.
Subedar Suleman Khan Vs. Mst. Makhmal Jan and another (PLD 1974 AJK 106), The National Electric Radio Karachi Vs. Messrs Sachiliae Lauro Naples (ltlay) and 3 others (PLD 1977 Karachi 264), Mst.
Mahmooda Begum and others Vs. Major Malik Muhammad lshaq and others (1984 SCMR 890)
Hasan Shaikh Vs. Anzar Ahmad Siddiqui (PLD 1985 Karachi 43), Mst. Fazal Jan Vs. Roshan Din and 2 others (PLD 1990 SC 661), and Baggi Vs. Rahman Bibi (PLJ 1996 Lahore 989).
9. The respondents not only failed to prove good conscience of the transaction but also did not bring any evidence on the file showing that the asserted vendor had an opportunity of consulting any such independent person, in absence of which the appellate Court fell into a grave error in reversing the well reasoned judgment of the Trial Court. The respondents have produced no proof of the sale transaction, as noted above, but inspite of it, suit of the appellants was dismissed in appeal and it was argued by the learned counsel for the respondent that scope of second appeal is very narrow within which no interference can be made. It is amazing that a finding given without evidence cannot be set-aside in second appeal. To my mind there can be no other better case than the one in hand, for interference by the Court exercising jurisdiction under section 100 of the C.P .C.
10. For what has been discussed above, I am constrained to hold that the appellate Court below did not properly comprehend the dispute and without properly evaluating the case law applicable proceeded to incorrectly reverse the judgment of the trial Court though under law it was bound to meet all the points evolved therein yet the judgment so passed being contrary to record, cannot be allowed to be maintained at law. I, consequently, accept this second appeal, setting aside the judgment and decree dated 23.12.2003 passed by the learned Additional District Judge, Depalpur with the result that judgment and decree dated 20.4.1999 passed by the Trial Court shall stand revived and suit of the respondents will be deemed to have been dismissed, with costs throughout.