' MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two civil revisions, one in hand and the other C.R.No.279 of 2000 as those arise out of alike judgments/decrees, raise similar questions of law/facts, require appraisal of alike evidence and are directed against the same set of respondents. Both these revision petitions assailed judgments/ decrees dated 29-6-1991 and 17-1- 2000 passed by the learned Civil Judge and the learned Additional District Judge, Jaranwala, District Faisalabad, whereby two suits filed by Mst. Zainab Bibi, the respondent were decreed and the appeals of Muhammad Yousaf and others the petitioners and Ghulam Rasool, were dismissed, respectively.
2. Succinctly, relevant facts are that Mst. Zainab Bibi filed two suits for possession/declaration regarding land measuring 8 Kanals and 13 Marlas to the effect that the Mutation of sale No.288 dated 12-4-1967, sale Mutation No.289 of even dated and that of inheritance of Abdul Karim (Mutation No.837 dated 30-9-1986) sanctioned by AC-II Jaranwala, on her behalf and on death of Abdul Karim were illegal, void, fraudulent, collusive, without consideration and result of impersonation as she never entered into any sale transaction with predecessor of Muhammad Yousaf and others petitioners, i.e. Abdul Karim deceased, and Ghulam Rasool sons of Muhammad Bakhash, the mortgages under her. Respondent in her one suit challenged sale Mutation No.288 sanctioned on her behalf in favour of Abdul Karim deceased and in the other, she assailed sale Mutation No.289 allegedly attested on her behest in favour of Ghulam Rasool petitioner in C.R.No.279 of 2000 and in both these suits she also prayed a decree for permanent injunction to the effect that petitioners may permanently be restrained from claiming any title on the basis of mutations in dispute and thus, may also be restrained from alienating the property by any means whatsoever. The respondent prayed that she may be declared owner of the land detailed in the plaints, possession of which, may be given to her after declaring that the impugned entries in the Revenue Record on the basis of impugned sale/inheritance mutations were fake and ineffective qua her rights.
3. The petitioners being successors of Abdul Karim defendant in the one suit and Ghulam Rasool defendant in the other suit contested the suits by filing their respective written statements. Certain preliminary objections regarding suit being barred by limitation, estoppel and non-maintainability of suit against petitioners were raised whereas in the other suit, Ghulam Rasul vendee also contested the suit against him by filing his written statement. Controversial pleadings of the parties in both the suits led to framing of separate issues and recording of evidence. The learned Civil Judge who was seized of these matters after doing the needful, decreed both the suits of the respondent (Mst. Zainab Bibi) and through separate judgments/decrees dated 29-6-1991 adjudged both the sale mutations as well as inheritance mutation sanctioned regarding her land.
4. The petitioners and Ghulam Rasool, being aggrieved of both the decrees in the two suits filed by the respondent, filed two separate appeals before the learned Additional District Judge wherein they also moved application under Order XLI, rule 27, C.P.C. Praying summoning of Revenue Officer who attested the Mutations Nos.288 and 289 namely Muhammad Afzal AC-II, and Muhammad Shafi son of Fazal Muhammad, the marginal witnesses of the agreement, Finger print Expert for comparison of thumb-impressions of Mst. Zainab Bibi over the agreement (Exh.D.1), Record-keeper who attested the copies of Mutation No.230 creating mortgage by Mst. Zainab Bibi and Baboo son of Kaka in their favour, by way of additional evidence. The respondent contested the appeals and the prayer for permission to lead additional evidence and the appeals were dismissed along with their application by the learned Additional District Judge on 17-1-2000 whereafter the petitioners filed C.R.No.199 of 2000 challenging the concurrent judgments and decrees of two Courts below, in the suit filed by Mst. Zainab Bibi (respondent) and Ghulam Rasool filed the other C.R.No.279 of 2000 praying adjudgment of judgments/ decrees in the other suit which were admitted to regular hearing and after completion of record have now been placed for final hearing. The respondent in response to notice by this Court appeared and was represented through her counsel.
5. Maqbool Ahmad and others, descendents of Baboo son of Kaka a co-vendor of the respondent who was her cousin as well as, co-sharer her co-mortgagor and had allegedly got sanctioned both the disputed mutations to the extent of his share, filed two applications, one in each civil revision (C.M. No.328-C of 2000 and C.M. No.329-C of 2000) seeking their impleadment as party to he civil revisions, under Order I, rule 10, C.P.C. They had claimed that fictitious sale shown on behalf of their predecessor Baboo son of Kaka incorporated in the mutations challenged by the respondent, had been cancelled by the trial Court in totality but were incorrectly directed to be kept intact to their extent, by the appellate Court at their back, hence, they were necessary/proper parties to the revision petitions.
6. The learned counsel for the petitioners submitted that they were bona fide purchasers for valuable consideration and had proved sale in their favour through evidence on the file but a contrary view taken in the impugned judgments was not in consonance with the evidence on the file and thus, the same is not sustainable. It was further submitted that respondent after receiving the entire sale consideration, transferred the possession of the land subject of suit to the petitioners and both these acts were acknowledged by her before the Revenue Officer sanctioning mutations in dispute, hence, after completion of sale, her suits could not have been decreed. It was further submitted that both the parties bail from one village where they reside till today but respondent after about 20 years of sale filed a time-barred suit to satisfy her greed on account of increase of prices of the property. According to them, suits on the face of those, were barred by limitation and could not have been decreed. It was further emphasized that there is no rebuttal to the statement of Lumberdar of the village who identified the respondent at the time of attestation of mutations, as D.W.3 (Mushtaq Ahmad). It was further submitted that there were traces of sale in favour of the petitioners through the documents like an agreement to sell but those were incorrectly not relied by the two Courts below to the disadvantage of the petitioners. It was further urged that the application of the petitioners under Order XLI, rule 27, C.P.C. Was wrongly dismissed whereas, had the permission prayed been granted, the appellate Court could have given a better decision.
7. The learned counsel appearing on behalf of Maqbool Ahmad and others the inter-pleaders who had prayed their impleadment to the civil revisions on the ground that the appellate Court erroneously kept the mutations of sale intact to the extent of their predecessor Baboo son of Kaka, submitted on their behalf that the appellate Court could not have reversed the judgments/decrees of the trial Court to their extent at their back or without giving them a notice, hence they were necessary parties to the revision petition.
8. The learned counsel appearing on behalf of the respondent refuted the arguments of the petitioners as well as those of the inter-pleaders and supported the concurrent judgments/decrees of the two Courts below, by urging that the respondent being an illiterate villager parda-observing lady was entitled to special protection by way of independent advice at the time of parting with her immovable property but there was absolutely no evidence that she availed such opportunity in spite of the fact that her husband and young sons were available for this purpose but none of those appeared at the time of sanctioning of mutations. According to him, respondent had denied the transaction of sale, receipt of sale consideration and sanction of mutations wherafter onus of proof of all these things shifted on the shoulders of the petitioners who were the beneficiaries of the transaction but failed to discharge this obligation. It was further submitted that the petitioners were in the joint possession of the land in dispute since before the disputed mutations, as mortgages and had been paying share of produce to the respondent regularly on account of which fake mutation proceedings, did not come to her knowledge.
According to him, on refusal by the petitioners to pay the share of produce of the land to the respondent, she sorted out the matter and came to know that her share of land had been fictitiously transferred in the names of Abdul Karim predecessor of the petitioners and Ghulam Rasool, whereafter she instantly filed the suits in hand which cannot be said to be barred by limitation. Prayer with regard to permission to lead additional evidence refused by the firs appellate Court was said to have been rightly denied as this evidence was available to the petitioners during the trial and was deliberately withheld.
9. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, append herewith. Undeniably, respondent is an illiterate villager lady and her denial of having entered into any transaction of sale with the predecessor of he petitioners and Ghulam Rasool petitioner' through her suits and as witness (P.W.3), onus shifted towards the beneficiaries to prove through positive evidence, not only the bargain between the parties but also the transactions of sale to have rightly been matured and reflected in the mutations under challenge in the suits. The petitioners in order to discharge the onus of proof coming towards them, examined D.W.1 Mukhtar Ahmad who being a Patwari claimed to have entered the transaction in daily diary and the mutations in dispute but during the course of cross-examination admitted that no sale consideration was paid in this presence. D.W.2 Allah Ditta tried to become a witnesses of the transaction without being named in this capacity on the mutations, deposed that bargain was struck for Rs.6,300 out of which Rs.4,300 was paid as earnest money, Rs.1,400 was to be adjusted towards mortgage money and the rest of the sale price was to be paid at the time of attestation of mutation. He admitted in the witness box that his narrations about visit to Patwari and Rapt Roznamcha were based on hearsay evidence. D.W.3 is Mushtaq Ahmad, who deposed that the respondent only acknowledged the receipt of sale consideration which was not paid in presence of the Revenue Officer sanctioning of the mutations and deposed to have identified the parties at the time of its attestation. D.W.4 is Muhammad Yousaf one of the defendants/petitioners who deposed that bargain was struck by Rasheed and Allah Ditta D.W.2 for an amount of Rs.6,300 out of which Rs.4,300 (1900 E.M. + 1400 mortgage were paid) at the time of bargain and Rs.2,000 was paid at the time of attestation of mutation. Examination of statement of D.W.2 revealed that the stance of the petitioners (as D.W.4) was not supported by him who stated that Rs.4,300 was paid as earnest money and rest of the amount after adjusting mortgage debt of Rs.1,400 was to be paid at the time of sanctioning of mutation. Statements of bot the witnesses D.Ws.2 and 4 were negated by copy of mutation Exhs.D.W.3 and D.W.1 who had stated that sale price was not paid in his presence. The other witness of bargain namely Rasheed was deliberately withheld and natural presumption is that had he appeared, would not have supported them. The petitioners besides their oral evidence which was not confidence-inspiring and being self-contradictory was not worth-reliance, also failed to prove the sale by the respondent through agreement (Exh. D.7) as the same was not proved by producing its marginal witnesses. This lacuna in their evidence was attempted to be filled by moving an application under Order XLI, rule 27 of C.P.C. At belated stage. This aspect of the matter will be taken care, in the later part of this judgment. From resume of facts, the record revealed that mutations of sale were entered one day prior to the alleged agreement to sell (Exh.D.7) grading it to be oral sale but it has not been explained as to why the necessity of execution of agreement to sell was felt when the sale mutation had already been entered. It appears that the petitioners over acted to secure the claimed transactions of sale and those went against them due to lack of proof. Entries in the mutations revealed that the entire sale price was admitted to have been received by the respondent, earlier but contrary to it both the witnesses of the petitioners D.Ws.2 and 3 categorically deposed that the balance sale price was agreed to be paid at the time of sanctioning of disputed mutations. Similarly, Ghulam Rasool produced same witnesses and their depositions were verbatim reproduction except, he himself appeared as D.W.5 and produced D.W.6 Muhammad Iqbal, Patwari who simply proved copy of Rapt Roznamcha Exh.D.2 which was prepared by him and Exh.D.3 copy of Jamabandi. In this manner, scan of evidence revealed that the payment of sale price to the respondent could not be proved by the petitioners who were already in possession of the land as tenants/mortgages. Revenue Record on the file reflected that the petitioners remained in possession of the land as tenants/mortgages which did not mature into that the exclusive owner, on the basis of the claimed sale. These necessary requirements for completion of sale i.e. Transfer of possession and payment of sale consideration, remained thirsty of proof.
10. Undeniably at the time of mutations challenged by the respondent she had her young sons and her husband was also alive but none of them is shown to have been associated in the asserted transactions of sale. There is no evidence on the file to show that the respondent ever consulted anybody about the sale or parting with her only a small piece of immovable land in spite of the fact that she was entitled to such advice. Under law parda-observing ladies like the respondent, are protected while entering into the alleged sale transactions of their immovable property and the transferees/beneficiaries are bound to prove good conscience of the transaction but no such evidence was produced by the petitioners, negatively reflecting on their transaction. The petitioners were required not only to prove their bargain with the respondent but also to prove the ransactions through independent evidence and then to prove the mutations of sale by showing payment of sale consideration and transfer of possession, thereunder. The petitioner railed to bring an iota of evidence in support of bargain, transactions of sale or mutations as neither the Revenue Officer who attested the mutations was summoned or produced nor any witnesses who negotiated the bargain, was examined and at the same time, none of the marginal witnesses of the claimed agreement to sell (Exh.D.7) was produced. In this manner the petitioners failed to prove the sale in their favour. If any precedent about the required proof of transactions by a female lady is needed, reference can be made to the judgments in the cases of Mst. Faridun-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 Privy Council 204), Tara Kumari v. Chandra Mauleshwar Prasad Singh (AIR 1931 Privy Council 303), Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others (1984 SCMR 890), Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661), Mst. Badshah Begum v. Ghulam Rasool and 4 others (PLD 1991 SC 1140), Mst. Hassan Bibi v. Ghulam Siddique and others (1992 CLC 402), Bajju v. Mst.
Rahman Bibi (1996 M LD 377) and Amirzada Khan and another v. Itbar Khan and others (2001 SCM R 609).
11. As regards objection of the petitioners about the suits of the respondent, being barred by limitation, as those were filed in 1987 to challenge mutations of 1967, after lapse of 20 years.
Apparently the objection appeared to be very attractive but lost its worth on deeper examination.
For filing a suit under section 42 of the Specific Relief Act, 1887, Article 120 of the Limitation Act, 1908, envisaged 6 years time computable from the date of accrual of cause of action. Respondent in her plaint pleaded that the petitioners had been paying her due share of produce of the part of the land which was not mortgaged with them and averred in paragraph 3 thereof that she had mortgaged 69/836 share of her holding with the petitioners for an amount of Rs.1,400. All the three witnesses of the respondent (P.Ws.1 to 3) unanimously deposed that the respondent had mortgaged 6 Kanals of land out of her holding of 18 Kanals, 3 Marlas and rest of it remained with the petitioners as tenants, share of which they had been paying to her regularly. These witnesses F were subjected to lengthy cross-examination but veracity of their statements could not be shattered. Respondent while appearing as her own witness as P.W.3 deposed that about one year and nine months earlier to the filing of her suit, petitioners stopped paying her share of produce whereupon she inquired and revealed attestation of mutation in question. She further deposed that petitioners committed fraud, as she never entered into any transaction of sale with them and did not receive any sale consideration. There is no rebuttal to the stand taken by the respondent and mere self-serving statements of D.Ws. In this behalf were not enough to misplace impact created by the evidence of the respondent. Under law fraud vitiates even solemn proceedings and there is no time limit to challenge any such transaction, which was deliberately kept away from the affectee, as per judgment of the Honourable Supreme Court in the case of Messers Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others (PLD 1992 SC 96). Besides it, limitation for filing declaratory suit would start only from the date of actual threat to title visualized by the owner. The respondent had claimed and proved that the petitioners had denied her title only one year and nine months earlier to the filing of the suit hence from this date; both the suits were within time. Reference in this behalf can be made to the cases of Mst. Izzat v.
Allah Ditta (PLD 1981 SC 165), Fateh Sher and another. v. Sharif Khatoon and 3 others (1986 CLC 320) and Qutab Din through his Legal Heirs v. Muhammad Siddiq and 2 others (1988 M LD 1601).
12. Scan of evidence on the file and the trial Court's record revealed that the petitioners availed maximum time for conclusion of their evidence before the trial Court and left no stone unturned in effort to prove their case. File is absolutely thirsty of the proof as to why application for comparison of thumb-impressions was not moved to the trial Court. Law regarding comparison of signatures is settled by this time to effect that this exercise could be done by the Courts themselves but no prayer to this effect was ever made by the petitioners before any of the two Courts below or even before this Court. Besides all these reasons, the first appellate Court correctly refused permission to lead additional evidence and the petitioners could not demonstrate that reasons assigned in this behalf were not lawful.
13. As regards impleadment of descendents of Baboo son of Kaka, there is no cavil that initially the suits to challenge the mutations in question were filed by respondent and she asserted that she did not enter into any sale transaction with the predecessor of the petitioners and Ghulam Rasool.
Baboo son of Kaka neither filed his own independent suit to challenge the discussed mutations nor he applied to became co-plaintiff along with respondent, meaning thereby that mutations to the extent of Baboo remained unchallenged in these proceedings but the same were wrongly adjudged in toto by the trial Court, without there being any such allegation. In view of this legal position and facts proved on the file, the appellate Court kept the mutations of sale to the extent of Baboo son of Kaka, intact. The applicants, who are his descendents and seek impleadment to the civil revisions for the first time, are not necessary/proper parties thereto as their presence is not needed for just/fair decision of the suits by the respondent. Thus the applicants may, if law permits them and they are advised, to file their independent suits to challenge to sale transactions by their predecessor, may do so but they cannot be allowed to be impleaded parties to these proceedings.
Another aspect of the case is that suits were filed by the respondent to which if at all, these persons can be impleaded, they will be arrayed as defendants or respondents in the revision petitions and in this capacity no effective decree to the extent of their share of mutations, can be passed.
For all the reasons noted above, both the revision petitions have no merit and prayer of the petitioners regarding grant of permission to lead additional evidence is declined and both the applications filed by Maqbool Ahmad others for their impleadment are dismissed along with the main revision petitions being devoid of merit. There will be no order as to costs.