' MIAN SAQIB NISAR, J.---The respondents, admittedly are the sisters of the petitioner. They had inherited the suit-land from their father. Subsequently, the petitioner, through registered sale-deed dated 10-5-1978, is alleged to have purchased the land from the respondents and a Mutation No.1138 dated 25-6-1978 is also claimed to have been sanctioned on the basis of the above. The respondents, on 25-6-1997, brought a suit for declaration, asserting their ownership of the suit-land and challenging the aforesaid sale-deed and the mutation on account of fraud and misrepresentation etc. The suit was contested by the petitioner; issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree dated 7-5-1999, allowed the same. Appeal of the petitioner has failed on 9-12-1999.
2. Learned counsel for the petitioner contends, that the suit of the respondents was out of limitation as the sale-deed and the mutation effected in the year 1978 were challenged through a suit filed in 1997; that the suit of the respondents was hit by the provisions of Order XXIII, rule 1, C.P.C., because they earlier had filed a suit against the petitioner with regard to the same land, but it was subsequently withdrawn; that in another suit brought by the petitioner against the respondents, the respondents, in their written statement, have conceded to the claim of the petitioner and had also made the statement accepting the petitioner as owner of the suit property; that in the earlier suit, as the relief challenging the sale-deed and the mutation was not sought, therefore, the subsequent suit in this regard was barred under Order II, rule 2, C.P.C. It is further submitted that both the Courts below, though have given the concurrent findings on Issues Nos.1 and 2 against the petitioner, but those are based upon misreading and non-reading of the material evidence on the record. It is also argued that in the suit, the respondents have denied the execution of the sale- deed in favour of the petitioner, however, in their evidence, they have attempted to prove that the sale-deed is result of fraud, misrepresentation and undue influence and it is this plea which has been accepted by the two Courts below. According to the learned counsel, these two pleas are inconsistent and mutually destructive; reliance in this behalf has been placed upon Mumtaz and 3 others v. Mian Khan (PLD 1973 Lahore 47). It is further argued that during the course of trial, the petitioner had moved an application for the comparison of the thumb-impressions of the respondents upon the sale-deed, but the application has been erroneously rejected by the learned trial Court on the ground that it is a direction case and has to be decided within specific period of time, and the comparison process shall cause delay to the expeditious disposal; but this could hardly be a reason for the rejection of the application, when it was the duty of the Court to hive sought the comparison. It is stated that the onus to prove about the non-execution of the document was upon the respondents and if they had failed to lead evidence in this regard including their failure to obtain the opinion of the Finger Print Expert that the document does not bear their thumb impressions, the presumption should -be drawn against them. Reliance has been placed upon Ali Muhammad v. Wali Muhammad (1993 M LD 666). Lastly, it is argued that the witnesses produced by the respondents have admitted in their statement that the petitioner is in poisession of the suit property, therefore, having omitted to ask for the consequential relief of possession, the suit for mere declaration is hit by proviso to section 42 of the Specific Relief Act.
3. I have heard the learned counsel for the parties. As far as the question of limitation is concerned, in the plaint the respondents have clearly stated that they came to know of the disputed sale on 4- 5-1997, whereafter the present suit has been filed. While appearing as P.W.1, Mst. Bibi has deposed that the suit was filed when the disputed sale was discovered. The objection about the limitation was raised by the petitioner in his written statement and the onus to prove the issue about the bar of limitation was upon the shoulders of the petitioner which he miserably failed to discharge, by establishing on the record that the respondents were aware of the sale-deed six years prior to the filing of the present suit. It may be added that the limitation in such circumstances, as has been held in the judgment reported as Khawas Khan through L.Rs. v. Sabir Hussain Shah and others (2004 SCM R 1259), shall commence from the date of attaining the knowledge of the document by Pardanashin lady, which she claims to never has executed and attributes fraud etc. To the beneficiary of the document. It may further be held that the respondents in this case are illiterate Pardanashin ladies and thus, it was more required from the petitioner to have proved that the transaction was bona fide, genuine, having no reflection of any fraud, undue influence etc., and that the ladies had the benefit of the independent advice of a male member of their family. As per findings of the two Courts below and also affirmed by this Court, the petitioner has miserably failed to discharge the onus upon this part of the controversy. Resultantly, I do not find that in the facts and circumstances, the suit was barred by time.
4. As regards the question that the suit was hit by Order II, rule 2, C.P.C. Or Order XXIII, rule 1, C.P.C., suffice it to say that according to the judgment reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344), where a suit had been withdrawn before the filing of a fresh one, the subsequent suit is not hit by the said provisions. For the argument that in the earlier suit, the validity of the sale-deed was not challenged and, therefore, the subsequent suit i.e. The present one, was barred by Order II, rule 2, C.P.C., it may be held that this is the defect, perhaps to remove which, the earlier suit was not pursued and the subsequent suit was filed. Thus, in the facts and circumstances, Order II, rule 2, C.P.C. Shall not be attracted.
5. The question about the maintainability of the suit for the lack of asking the relief of possession is not very intricate, because the respondents had originally inherited the property and they were the co-sharers along with the petitioner, when the intervening sale-deed had affected their joint ownership. Now if the sale-deed in issue is declared to be null and void, the original position of the respondents as the co-owners shall stand restored and they shall be considered. To be in the joint possession of the suit property. As has been held by the two Courts below and is affirmed by this Court as well, that the disputed sale-deed is not proved to have been validly executed by the respondents and thus, liable to be declared void, resultantly, as being the co-owners in joint possessions, the respondents were not bound to ask for the consequential relief of E possession, and thus, their suit is not affected by the provisions of section 42 of the Specific Relief Act.
6. The argument that the case set out of the respondents in their suit is that they had never executed the sale-deed, but their subsequent plea is that it is result of fraud, misrepresentation and undue influence, and these pleas having been accepted by the two Courts below are inconsistent in nature, resultantly, the decrees impugned are liable to be set aside. I am afraid that the argument is not well-conceived for the reason that if the one party has denied the very execution of the sale-deed, but the other party claims it to be so validly done, the element of fraud and misrepresentation, necessarily is an in-built issue, which requires resolution by the Court.
7. The last submission about the non-comparison of the thumb-impressions, it may be held that primarily it was the duty of the petitioner as the defendant and the beneficiary of the sale-deed, to have proved the document through positive and direct evidence. The sale-deed is purportedly witnessed by Sultan and Allah Bakhsh Khan. Allah Bakhsh Khan allegedly also identified the two ladies before the Sub-Registrar, but he has not been examined; the argument that he had died by that time, is not definitely proved on the record; and even if that was so, some evidence should have been led by the petitioner to prove his signature on the document as the attesting witness or the identifier. Abdul Rashid, the scribe of the document has also not been produced. Only the stamp vendor has been examined as D.W.2 and this evidence was insufficient and inadequate to prove the valid execution of a document attributed to illiterate Pardanashin ladies. It is also not established if the ladies at the relevant point of time, had the independent advice of any adult male member of the family or the adequate consideration was passed on to them. According to Sultan D.W.3, the value of the land at the relevant time was about Rs.8,000/10,000 per Acre, but unfortunately Rs.10,000 are shown to have been paid and postulated in the sale-deed for whole chunk of the land, which is about 68-Kanals. It is settled law that mere appendage of the signatures or thumb-impressions on a document, particularly in the case of Pardanashin illiterate lady and illiterate person, cannot be considered to be the valid and due execution of the document until and unless the person, who is putting his thumb-impressions or the signatures in execution thereof, is made to understand the contents of the document by reading it over to him and explaining to him the contents and the true purport of the instrument. This is the most pivotal and important factor for the valid execution by such people. In this case, the petitioner has not led any evidence if the sale-deed, at the time of its alleged execution by the two ladies or even at the time of its registration, was read over and it was accepted by them that they are selling their proprietary rights in the property to their brother for the consideration of Rs.10,000. From all these factors, the two Courts below on the basis of appreciation of evidence, have come to a factual conclusion that the petitioner has failed to prove the sale-deed. I am not convinced if there is any misreading or non-reading of the evidence on the record by the Courts below, while reaching to the conclusion.
Obviously, it is the prerogative of the Courts of fact to appreciate the evidence and such appreciation cannot be interfered in the revisional jurisdiction only for the reason that on the basis of the same evidence, some other conclusion could have been drawn. Thus, I am not persuaded to hold that the Courts below have committed an error of jurisdiction or material irregularity in passing the impugned decision. Resultantly, I refuse to exercise my revisional jurisdiction with the consequences that this petition has no force and is hereby dismissed.