MIAN SHAHID IQBAL, J.---This civil revision is directed against the judgment and decree dated 7-1- 2003 whereby suit tiled by respondents/plaintiffs was dismissed and appeal filed by them was accepted.
2. Facts of the case are that present respondents filed suit for declaration against the present petitioners on the ground that they are legal heirs of Mst. Amina Bibi daughter of Ali Muhammad who happens to be real cousin of both parties, sought declaration to be co-owners in possession of the disputed property which stood transferred illegally and unlawfully to present petitioners Abdul A Ghafoor etc., by virtue of Mutation No 223 dated 29-6-1992 in respect of land measuring 3- Kanals and 6.-Marlas situated in Mauza Sureki Tehsil and District Khushab.
3. The suit was contested by petitioners through written statement wherein they submitted that property in dispute was transferred to them by virtue of sale transaction finally culminating into the present mutation. Out of divergent pleadings of the parties, learned trial Court framed 11 issues.
3.Plaintiff/respondent No, 1 Muhammad Rafiq (deceased) appeared as P.W.1 and made statement that at the time ' of death Mst. Amina. Bibi was at the age of 75 years who died in December, 1992.
He further submits that at the time of purchase of property price of land was Rs,40,000 per acre and the property in question had been transferred through forged and fabricated documents. In cross-examination he further states that they come to know regarding disputed mutation after the death of Mst. Amina Bibi. In examination-in-chief he admits that Mst. Amina Bibi had no issue; her husband passed away before her death. He further denies the suggestion that at the time of transfer of suit property Khushi Muhammad Councillor, Haji Saleh Muhammad and Mst. Amina Bibi did not appear before the concerned Tehsildar who had attested the said document for transfer of property in the name of present petitioners. He denies the suggestion that at the time of mutation her age was not 75 years; he also denied the suggestion that at the time of death Mst. Amina Bibi was 58/60 years of age. He admits in cross-examination that during her life time she did not challenge the disputed mutation. He also placed documents i,e, . Mutation. No,223 dated 29-6-1992 as Exh.P1 and closed evidence.
4. DW-1 appeared and made statement that Mst. Amina Bibi was his paternal cousin. She sold her property measuring 3-Kanals and 6-Marlas for a sum of Rs,3000 regarding which mutation was sanctioned on 29-6-1992. At the time of transfer of property Khushi Muhammad Councillor and Haji Saleh Muhammad Patti Dar/land owner appeared before Tehsildar, both these persons identified the lady; she admitted to have received amount and transferred the property; all these proceedings were conducted before the Tehsildar and all persons present put their thumb impression regarding transfer of property. In cross-examination he narrates that husband of Mst.
Amina Bibi died -in year, 1965; at the time of transfer of property it was uncultivated and subsequently it was cultivated. He further narrates that property was purchased by them on 29-6- 1992; in cross-examination he further explains that property of Mst. Amina Bibi at that time of mutation was adjacent to the property of DW-1. This land is irrigated by canal. In cross- examination he states that he cannot tell the price per acre; he denied the suggestion that price of land was Rs,1,50,000 per acre. In cross-examination on a question he narrates that alleged mutation was entered at the "Dhara" of Lumbardar. He does not know the name of Tehsildar but he reiterated in cross-examination that name of Patwari was Farid and he could not tell the name of Girdawar. In cross-examination he states that he paid Rs,3,000 to Mst. Amina Bibi but admitted that amount was paid to her in the house where nobody was present. At the time of death she was at the age of 75 years. He denied the suggestion that she was not mentally fit. He narrated that. Mst.
Amina Bibi appeared before Tehsildar in "Burkah" and at the time of thumb-impression Tehsildar removed her "Burkah" to have her identified. She placed her thumb impression in presence of 'Tehsildar which was attested by Patwari concerned and thereafter Tehsildar attested the mutation. He denied that mutation was got sanctioned through forgery and same was not attested in presence of witnesses. He further denied the suggestion that no witness was present at the time of attestation of mutation.
6. With the concurrence of parties this case has been heard in absence of record of lower court.
7. The learned trial court in order to finalize the matter decided Issue No,1-A in favour of the plaintiffs/respondents thereby holding that since the document in question is a public document, simply by arguing it cannot be presumed to be forged document, in this regard no cogent evidence was: brought on record, thus this issue is decided in favour of Abdul Ghafoor defendant No,1 etc. As far as issue No,1 is concerned, learned trial court has held that since the onus of this issue was on the plaintiffs/ respondents; only plaintiff No 1 appeared as P.W.1 to prove the same but he failed thus this issue was decided against him in respect of evidence and decision taken on issue No, 1-A. Issues Nos. 3, 4, 5, 6, 7, 8, and 9 were not pressed, and decided in negative. As far as Issue No,2 is concerned the court has finally held that as the mutation in question was not only attested by concerned Lumbardar but also the witnesses were present, as such after due process property was transferred. Thus the learned trial court dismissed the suit on the basis of findings on Issues Nos.1-A, 1 and 2.
8. Against this dismissal present respondents filed an appeal; the learned lower appellate court vide its judgment and decree dated 7-1-2003 while reversing the findings on Issues Nos.1-A, 1 and 2, has held that present petitioners have failed to prove before the learned trial court that he was man of means and have paid the amount at the time of attestation of mutation. Moreover, learned lower appellate court also held that under section 17 of Qanun-e-Shahadat Order, 1984 at least two witnesses were required to prove any document. As such in view of the law, the said mutation cannot hold the field. The learned lower appellate court has further held that there was no reason available as to how defendant arranged Rs,1,00,000 to pay Mst. Amina Bibi during a short span of period thus on the basis of these findings judgment and decree of the learned trial court was reversed.
9. Learned counsel for the petitioners argues that petitioner being a man of means and having landed property which fact was not denied by the present respondents was capable to purchase property for a sum of Rs,3000. Moreover, learned lower appellate court had failed to consider the factum that in cross-examination made by present respondents on defendant No,1, where through the said cross-examination DW-1 was asked two specific questions that at the time of transfer of property where he explained that lady came in "Burkah" and Tehsildar at the time of attestation of mutation removed her "Burkah" in order to get her personally identified. The said lady was identified by Khushi Muhammad Councillor and Haji Muhammad Saleh Patti Dar who were present and identified her, C she also put their thumb impressions in recognition. He further submits that reasons which weighed before the learned lower appellate court, that no Revenue Officer was present at the time of attestation whereas Exh.P1 totally belies the fact which shows that in actual the same was attested by Revenue Officer, lady was identified by Ahmed Nawaz Patti Dar and councillor which was proper and legal procedure for attestation of mutation.
10.Learned counsel further submits that plaintiffs/respondents were unable to discharge their onus on issue No,1 wherein they were bound to establish the alleged allegation which they failed to, thus the judgment passed by lower appellate court was not to hold the field and the judgment passed by learned trial court was fully inconsonance with the facts.
11. Learned counsel for respondents submits that P.W.1 admits that at the time of death Mst. Amina Bibi was of 75 years which is not denied even in cross-examination. Learned counsel further submits that age of Mst. Amina Bibi at the time of mutation as well as death was not denied by defendants. Further submits that not in the plaint but also- in his statement P.W.1, states that no sale was conducted between the parties and all transactions were based on fraud and forgery.
Learned counsel submits that it was the case of present respondents that Mst. Amina Bibi was Parada Nasheen lady; since the mutation sanctioned by the Revenue Officer was not a title document and does not confer any right to petitioners unless and until they so prove the same.
12.Learned counsel further submits that mutation under challenge shows that same was got attested in lieu of certain transaction which did not take place on the' same day. It is further submitted that transactions shown in the mutation were to be proved independently which has not been done in the present case. It, was duty of beneficiary to have produced Tehsildar, Girdawar and Patti Dar in absence of all this, mutation under challenge could not be proved. In these circumstances petitioners/ defendants failed to prove the transaction. It is also submitted that solitary statement of petitioner would in no way shoulder the disputed mutation. Learned counsel further submits that since the transferee was an old Parda Nasheen lady as such provisions of section 16 of the Contract Act applies which contentions shown to have not been fulfilled at the time of attestation of mutation. In this .context learned counsel placed his reliance on PLD 1993 Lahore 254, 1993 CLC 1327, 1995 SCMR 971, 1990 MLD 89, 2001 SCMR 1591 and 1994 SCMR 1194.
Learned counsel further submits that since it is apparent from the record that present respondents are co-sharer, they shall be deemed to be in possession of the suit property. He further submits that it is on the record that parties are inter se related with each other which is not denied on record. Learned counsel while concluding arguments has submitted that petitioners have not been able to prove sale transaction on the basis of which sale took place.
13.Having gone through the record with the assistance of learned counsel for the parties and after attending to the arguments, the basic question which arises out ' of the contesting facts between the parties is that whether the property in question as alleged by present petitioners was proper and legally transferred. In these circumstances, the latest pronouncement made by apex Court is that when a Parda Nasheen or illiterate woman is made to transfer a property then it is very necessary and important that at the time of transfer of said property she must be assisted by some of her near and close one who could have given her advice as to what she was going to do; reference is made to "Abdul Hameed v. Shamsuddin" (PLD 2008 SC 140) wherein it has been held that:-- "Mst. Halima Bai died before she appeared in. the witness box and none of the two marginal witnesses of the sale deed namely Qazi Mumtaz Ahmed and Qazi Ijaz Ahmed were produced to prove the execution of sale-deed dated 26-2-1969 and the genuineness of transaction of sale in favour of Abdul Hameed. The sole statement made by Abdul Hameed, vendee, on oath who was the beneficiary of the transaction, that Mst, ,Halima Bai, his maternal grand mother having sold the property for valuable consideration, executed the sale-deed of her free-wile, could not be considered sufficient in the facts of the present case to prove the willingness of Mst. Halima Bai for transfer of the property and genuineness of the registered sale deed dated 26-2-1969. The legal character of document of title must be established through the independent evidence and Courts in such cases of doubtful character, must be extra careful to ascertain the genuineness of transaction. The first appellate court as well as the. High Court in second appeal after detail scrutiny of evidence, have concurrently held that the genuineness of sale allegedly executed by Mst. Halima Bai was not proved and not withstanding the presumption of correctness attached with the registered sale deed, the same being of disputed character, would not be ipso facto considered a valid document of title"
14.The law laid down on the basis of facts that when an illiterate lady was made to sign or relieve of her landed property the beneficiary who is to receive the property, onus was upon him to. show and to prove that transaction made by them was fully proved and clear. In the present case, DW-1 appeared' and made statement wherein in cross-examination he admitted that at the time of transfer of property, the lady was not accompanied by any near relative who could have advised her for the thing she is going to do. Since this part of the requirement as determined in present case is missing, therefore, the present petitioners failed to come up with requirement under the law. This view is 'also facilitated from 1995 SCMR 971 and PLD 2005 SC 658.
15. The next argument which do have weight was that it was admitted by DW-1 that amount was paid to lady at her residence but he failed to place on record any evidence in order to show that transaction which took place prior to the mutation, was bona fide and was in -consideration of the amount paid. As the petitioners failed to place on record any evidence with respect to payment of amount thus it can safely be held that unless and until payment of amount is not proved the transfer in question would be doubtful.
16. As fraud was alleged regarding transfer of property, therefore, onus was on the .petitioners to prove the bona fide payment, ,attestation and execution of transfer of property. In the present case neither,the attesting officer nor Patti Dar appeared before the court to testify the sale which factor is also sufficient to hold that mutation was not proper. Reference is made on a judgment reported as "Allah Bakhsh and another v. Ghulam Jannat and 6 others" (PLD 1993 Lahore 254).
17. As the law so says that mutation of transfer of property whether sale or gift would not be sufficient to hold that on the basis of same the person to whom the property has been transferred, creates a title. Mutation is only a fact which evidence a transaction which took place before the Revenue Officer regarding appearance and signing of documents before him. There are other proceedings which do happen before the happening of mutation and those factors are the evidence regarding sale and purchase and payment in respect of that transaction. In the present case it is admitted by DW-1 that amount was paid to the transferee/Parda Nasheen lady at her house which factor has not been proved through any evidence. In absence of that mutation since not a document of title cannot hold the field. Reliance is placed upon "Mirsab Khan and another v.
Parizad Khan and another" (PLD 1994 Peshawar 148) and "Mst. Raj Bibi and another v. Province of Punjab through District Collector, Okara and 5 others" (2001 SCMR 1591).
18. It is a settled law that in order to prove a document in which fiscal matters, are involved the person so alleging their claim in their favour on the basis of which the document creates title has to be proved through two witnesses which part of the matter is missing in the instant case.
19. Since the petitioners have failed to prove the consideration paid to Mst. Amin Bibi, they also failed to prove that at the time of sanction of mutation she was fully accompanied with the advice of her near and close one who could have fully explain her the result of what she was doing.
Moreover, under the settled law it was duty of beneficiary on whom the onus heavily lies to have proved that the property was sold through mutation with consideration which petitioners failed.
20. In these circumstances, this revision petition does not sustain and is dismissed.