' SHAH JEHAN KHAN YOUSAFZAI, J.---This revision petition is directed against the judgment and decree of the learned Additional District Judge-III, Peshawar dated 30-3-2004 whereby Civil Appeal No,3/13 of 2004 of the plaintiffs/respondents Nos.1 to 4 was accepted, judgment and decree dated 21-11-2003 was set aside and consequently the suit of plaintiff/respondents Nos.1 to 4 was decreed in their favour against the defendant/petitioner.
2. Brief facts of the case are that plaintiffs/respondents Nos.1 to 4 along with their sister Mst. Sajida Parven brought a suit against. Abdul Qayyum defendant/petitioner and others seeking decree for declaration with consequential relief to the effect that sale Mutation No,2463 attested on 25-3-1976 allegedly entered and attested by Muhammad Aslam Khan their deceased brother regarding his share out of total area 25 Kanals, 15 Marlas entered in Khata Nos.271/1231 to 1239 described through Khasra Nos.370, 1394, 3333/1969, 395, 1888, 3163, 1020, 1022, 1332, 122, 119, 126, 1310,1746, 1816, 1796 and 3165 in favour of Abdul Qayyum defendant/petitioner is forged, without any consideration, illegal and ineffective upon the rights of plaintiffs/respondents Nos.1 to 4. It was averred in the body of the plaint that joint land measuring 25 Kanals, 15 Marlas was owned by Muhammad Azam Khan father of plaintiffs/ respondents Nos.1 to 4, Shah Alam Khan, respondent No,5 and Muhammad Aslam Khan as co-owneRs, Muhammad Aslam Khan brother of the plaintiffs/respondents was insane and was admitted in Government Mental Hospital, Peshawar as back as 8-4-1952 and he died there on 28-1-1981. He was not capable of any understandings and plaintiffs/respondents Nos.1 to 4 and their other brother respondent No,5 herein are his only legal heiRs, Certificate issued by Government Mental Hospital, Peshawar bearing No,146 dated 3-11-1981 was appended with the plaint. Further averred that defendant No,1/petitioner fictitiously and through a forged sale mutation allegedly purchased the share of Muhammad Aslam Khan through sale Mutation No,2463 for a sale consideration of Rs,15,000 and he succeeded in its attestation on 25-3-1976 with the collusion of revenue officials although Muhammad Aslam Khan being insane could not enter into any agreement, sale or alienation of land in any manner and he never appear before any revenue officer in connection with the attestation of sale mutation. Plaintiffs/respondents Nos.1 to 4 got the knowledge of the disputed sale mutation when proceedings under the Land Acquisition Act against a part of the disputed land were carried out. Defendants Nos.3 to 14 also arrayed as proforma defendants being recorded owners in the disputed Khata. The plaintiffs seek the requisite decree in the aforesaid circumstances.
3. The suit was contested by the defendant No,1/ petitioner herein and the trial Court framed the following issues including the relief:-- ISSUES ;
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs are estopped by his own conduct to bring the present suit?
(3) Whether the suit is time-barred?
(4) Whether Muhammad Aslam deceased was in full senses at the time of attestation of Mutation No,2463 dated 25-3-1976?
(5) Whether the plaintiffs are entitled to the decree as prayed for?
(6) Relief.
4. Both the parties adduced evidence to discharge their burden of proof and the trial Court dismissed the suit through judgment and decree dated 20-4-1992 but issue No,3 regarding limitation was answered in negative and the suit was held within time which was also upheld in appeal through judgment dated 28-6-1993 and there was no cross-objection regarding issue No,3 but on revision this Court remanded back the case to the trial Court vide judgment and decree dated 17-4-1994 for the observations mentioned therein. The trial Court once again dismissed the suit on 21-11-2003 but the finding on issue No,3 remained the same which was challenged through appeal by the plaintiffs/respondents but no cross objection on issue No,3 thus the finding attained finality and vide judgment and decree dated 30-4-2004 the same was allowed by the lower Appellate Court and the suit of the plaintiffs/respondents was decreed which has now been challenged through the instant revision petition.
5. I have heard the learned counsel for the defendant/petitioner who contended that the petitioner is bona fide purchaser of the share of Muhammad Aslam Khan and the impugned sale mutation was entered and attested when he was in his complete senses and the plaintiffs/respondents Nos.1 to 4 have failed to discharge their burden to establish that Muhammad Aslam Khan vendor was not competent to enter into sale transaction at the relevant time. Further contended that P.W.2 has deposed that Shah Alam Khan brother of the plaintiffs/respondents and Muhammad Aslam Khan vendor had paid back the sale consideration to the petitioner-vendee-defendant and in this way the sale between the petitioner and Muhammad Aslam Khan was admitted. After purchase of the share of Muhammad Aslam Khan the petitioner is continuously recorded owner of the said purchased share in the successive Jamabandis and the suit for declaration was instituted for the first time on 20-4-1987 beyond prescribed period of limitation under the law. Also contended that the Provincial Government through Secretary Industries was not arrayed as respondent in appeal and the appeal was not competent for want of necessary parties. In support of his submission he relied upon the following authorities:--
(i) (AIR 1932 Rangoon 24),
(ii) (AIR 1938 Nagpur 204),
(iii) (PLD 1954 Peshawar 52),
(iv) (PLD 1963 Dacca 253),
(v) (PLD 1982 Supreme Court 46) and
(vi) (1994 MLD 747)
6. The attorney for contestant respondents-decree-holders expressed his inability to engage a counsel. However, he defended the impugned judgment and decree of the lower Appellate Court by submitting that Muhammad Aslam Khan was chronic insane and he remained indoor patient of Government Mental Hospital, Peshawar from 8-4-1952 to 28-1-1981 and in this regard the Hospital authorities had issued a Certificate Exh.P.W.3/1. The defendant/petitioner has failed to establish the genuineness of the impugned sale mutation through marginal witnesses or the officials of the Revenue Department. The petitioner who claims to be the vendor of the share of Muhammad Aslam Khan deceased never interfered in the disputed land and never asserted the disputed sale mutation in the life time of Muhammad Aslam Khan or there after till the institution of the suit in the year 1987. Signature of Muhammad Aslam Khan over the disputed sale mutation was also never proved to be genuine for sending the same for comparison with his undisputed signatures to the Handwriting Expert. The defendant/ petitioner appeared as his sole defence witness as D.W.1 and closed his defence.
7. After hearing the arguments of the learned counsel for the petitioner and attorney for the contestant respondents/decree-holders I shall first take up the question of limitation raised by the counsel for the defendant/petitioner. This objection was raised in the written statement and the trial Court has struck issue No,3 as to whether the suit is time barred. The trial Court in its judgment dated 20-4-1992 answered this issue in negative in favour of the plaintiffs/respondents and their suit was decreed. That judgment was challenged by the petitioner through Appeal No,132/13 of 1992 but the findings on issue No,3 were not reversed and the appeal of the petitioner was allowed mainly on reversing the findings on issue No,4. The said judgment and decree of the lower Appellate Court dated 28-6-1993 was challenged in Civil Revision No,414 of 1993 before this Court and in conclusion through judgment dated 17-4-1994 the matter was remanded back with the direction that whole record of Government Mental Hospital, Peshawar be requisitioned relating to the admission and discharge of Muhammad Aslam Khan and as to whether Muhammad Aslam Khan remained admitted as patient in the Mental Hospital Peshawar throughout the aforesaid period mentioned in the Certificate i.e. 8-4-1952 to 26-6-1981 or as to whether he was discharged from time to time particularly during the entry and attestation of impugned sale mutation. Also referred to column No,12 of the mutation in question which indicates that mutation had been entered at the request of brother of Muhammad Aslam Khan and as to whether Muhammad Aslam Khan himself signed the mutation in lalsa-e-Aam' and it would be appropriate if his signatures are sent for comparison by an Expert.
8. After remand one Tajamal Hussain Record-Keeper Government Mental Hospital, Peshawar was produced as P.W.3. In his deposition he stated that as per record of the Hospital and the death Certificate Exh.P.W.3/1 Muhammad Aslam Khan was admitted in the Hospital on 8-4-1952 and died on 26-1-1981. The said Certificate was available on the file brought by him. The record not carries any entry regarding his discharge in between 8-4-1952 and 28-1-1981. The record brought by him was prepared by Medical Officer and he was unable to give any explanation regarding the said entry. He also expressed his ignorance as to whether Muhammad Aslam Khan was discharged from the Hospital from time to time. He also expressed his inability to say that he did not remain indoor patient in the given period in Exh.P.W.3/1. However, he was checked upon on 22-6-1972 and 29-10-1977 and during this period there is nothing on record regarding his history or illness. The history sheet of Muhammad Aslam Khan was produced as Exh.P.W.3/X-1 whereby there is check up report on 22-6-1972 and then on 29-10-1977. The record does not contain any entry regarding the discharge of Muhammad Aslam Khan or the medicines suggested to him. He admitted it correct that no mentally sound person can be admitted in the Hospital and since he himself had not seen Muhammad Aslam Khan, therefore, cannot comment upon his insanity or illness.
9. After remand Samiullah Jan son and attorney of the petitioner appeared as RDW-1 who relied upon the statement of his father and submitted that the suit property was purchased by his father through disputed sale mutation on 25-3-1976 Exh.RDW1/2 and also deposed that Nawab Khan Numberdar and Mukkaram Khan marginal witnesses of the sale mutation have died and their death certificates were produced as Exh.RDW1/3 and Exh.RDW1/4. He himself is not an eye-witness of the disputed sale mutation. As per the information of his father (the petitioner herein) that Muhammad Aslam Khan was mentally healthy and has admitted the sale in "Jalsa-e-Aam". He stated that brother of Muhammad Aslam Khan who is alive cannot be produced due to his fear. For the production of concerned Tehsildar and Patwari he requested for summoning them through Court. Death Certificate of Nawab Khan Numberdar Exh.RDW1/3 indicates his death on 7-11-1979 while Mukarram Khan has been shown to have died on 16-3-1989 through Exh.RDW1/4 meaning thereby that during initial proceedings Mukarram Khan was alive but he was never produced in the witness box not mentioned in his list of witnesses submitted on 26-10-1987 and the P.Ws. Were to be produced on 04/04/1988, thus during the course of defendant's evidence one of the identifier and marginal witness of Exh.RDW1/2 was alive but was produced. The request for summoning the revenue officials through Court summon was objected on the ground of delaying tactics as the statement of the Patwari Halqa has already been recorded and he was subjected to cross examination by the defendant/ petitioner. Also on the ground that there is no mention of Patwari Halqa and Naib Saddar Qanungo in the list of witnesses of the defendant/ petitioner. In these circumstances the Court refused to issue summon against those officials. However, the defendant/petitioner was provided an other chance to produce them on the next date i.e. 27-10- 2003 otherwise the main suit shall be argued. The defendant/petitioner failed to produce the revenue officials on the given date and arguments were addressed and the suit was dismissed, however, the findings on issues Nos.2 and 3 in favour of plaintiffs/respondents already recorded were once again kept intact. The plaintiffs/respondents filed an appeal but no cross objection was filed by the defendant/petitioner against the findings on issues Nos.2 and 3.
10. The issue regarding limitation has already attained finality and suit of the plaintiff-respondents Nos.1 to 4 was found within time, therefore, the same cannot be reopened at this belated stage.
11. The plaintiffs/respondents have succeeded in establishing that Muhammad Aslam Khan the alleged vendor was insane and remained as indoor patient in Government Mental Hospital, Peshawar. The defendant/petitioner in his written statement has denied the averments regarding insanity of Muhammad Aslam Khan in para 2 of his written statement and contended that at the time of attestation of impugned sale Mutation No,2463 attested on 25-3-1976 Muhammad Aslam Khan was quite healthy and not suffering from any mental or physical weakness and was performing his day to day business. The plaintiffs/respondents have discharged their burden by producing Certificate by Government Mental Hospital, Peshawar showing Muhammad Aslam Khan the alleged vendor as indoor patient from 8-4-1952 and date of his death is 28-1-1981 through P.W.3. Neither in the said record pertaining to Muhammad Aslam Khan there is any entry regarding his periodical discharge from the Hospital nor any entry showing improvements in his mental condition. The defendant/petitioner could produce evidence from the locality or relatives of Muhammad Aslam Khan to establish that at the relevant time of attestation of sale mutation he was in senses and not insane but no such witness was produced. In the first round only the defendant/petitioner himself appeared in the witness box and closed his evidence despite the fact that Mukarram Khan one of the identifier of Muhammad Aslam Khan as vendor was alive at the time of submission of list of witnesses on 28-1-1987 but his name was not mentioned in the list of witnesses. The private persons mentioned in the list of witnesses were also not produced by him during the trial. After remand once again there was a chance for the petitioner to establish the genuineness of Exh.RDW1/2 also exhibited as Exh.DW1/1, the matter was absolutely remanded on the issue as to whether Muhammad Aslam Khan had alienated the suit land in favour of the petitioner while in senses and not insane but only the son and attorney for the petitioner appeared in the witness box and he opted not to produce any other witness while he himself was admittedly neither present at the time of alleged transaction {{WORD MISS}}
12. Learned counsel for the defendant/petitioner relied on PLD 1963 Dacca 253 wherein it was held that the party raising the plea of insanity shall be his burden to prove presumption of sanity would be available to the party claiming sanity of an individuals. The facts and circumstances of the case of the cited judgment are distinguishable as in the instant case the contestant plaintiffs/respondents have discharged their burden by producing the insanity Certificate of Muhammad Aslam Khan who remained indoor patient for sufficient long time i.e. From 8-4-1952 to 28-1-1981 and his death has been shown in the Government Mental Hospital, Peshawar. The burden was shifted to the petitioner who is the beneficiary of the sale mutation but he has failed to discharge his burden. Reliance was placed on AIR 1932 Rangoon 24 wherein it was held that mortgagor pleading unsoundness mind at the time of execution of mortgage deed and it was found that the mortgagor was unsound mind but having lucid intervals, this it was held that no general rule could be laid down as the burden would lie on which party. In the present case the defendant/petitioner has altogether denied the insanity of Muhammad Aslam Khan while submitting his written statement and this was not his case that Muhammad Aslam Khan who remained as insane but having a history of lucid intervals. The burden to establish insanity of Muhammad Aslam Khan was successfully discharged by the plaintiffs-decree holders and the burden was shifted to the defendant/petitioner the beneficiary of the impugned mutation who failed to produce such evidence and thus failed to discharge his burden. Learned counsel also relied on 1994 MLD 747 wherein it was held that concurrent findings of the two Courts below were without examining the oral as well as documentary evidence on record and a conclusion was drawn that the vendor was of unsound mind since his childhood and was not competent to enter into contract. The finding was based on the fact that after one month of the sale transaction the vendor was admitted in the Mental Hospital and the Board of Doctors after examining him had issued a certificate regarding defective mentality of the vendor and concurrent findings were reversed by holding that if a person is found one of unsound mind it would not mean that he was also suffering from insanity one month earlier and the concurrent findings were reversed in the light of the evidence on record. In the present case Muhammad Aslam Khan has been shown as complete insane as back as 8-4-1952 and his death has been shown in the Mental Hospital on 28- 1-1981. In these circumstances it has rightly been held by the lower Appellate Court that insanity of Muhammad Aslam Khan vendor was fully established. Learned counsel for the petitioner also relied on AIR 1938 Nagpur 204 wherein genuineness of a deed was questioned on the ground of insanity on the date of execution and the Court observed that the pleadings and evidence must be scrutinized before deciding issue of mental condition and without such exercise the finding will not bind the Court in second appeal. Learned counsel also relied on PLD 1982 Supreme Court 46 regarding non-impleadment of necessary parties. In the instant case all the living persons having interest in the suit are arrayed as party and no necessary person has been excluded, even otherwise the plaintiffs/respondents if found entitled for grant of requisite decree would not be refused the same merely for misjoinder or non-joinder of appropriate parties. The learned counsel did not point out any person in absence of whom no effective decree could be passed. Also relied on PLD 1954 Peshawar 52 wherein for non-impleadment of the plaintiffs and defendants were not arrayed in the appeal and after making an observations that the decree was against all the panel and on this score the appeal was found incompetent while in the present case the petitioner and the leaving respondents-decree-holders are only contestants, therefore, the said judgment is distinguishable on facts. In the instant case the findings of the trial Court suffer from not properly appreciating the evidence adduced by both the parties and has also failed to scrutinize the pleadings while the lower Appellate Court in its impugned judgment has thoroughly considered the pleadings and evidence led by the parties, therefore, the cited judgment is of no use for the petitioner rather it goes against his stance.
13. In view of the aforesaid discussion I while maintaining the impugned judgment and decree of the lower Appellate Court, dismiss the instant revision petition with costs throughout.
Revision .