SYED. SAJJAD HASSAN SHAH, J.---This revision petition calls in question the judgment and decree dated 2-2-2011 passed by learned District Judge, Kohat whereby the appeal filed against the judgment and decree dated 14-12-2010 of learned Senior Civil Judge, Kohat was dismissed.
2. Briefly stated, the facts of the case are that the respondent- plaintiff filed a suit against her brothers for perpetual and directory injunction praying that she is owner in the suit property and has not entered into sale transaction with the petitioners-defendants and the entries made in the Revenue Record are on the strength of fake and fictitious mutation. She further averred in the plaint that she is a Pardanashin lady and was unaware of the entry and attestation of mutation and thumb impression and signature on the mutation and affidavit etc. Were taken earlier which proceedings are illegal and unlawful. She further asserted that she is an old lady and at the time of attestation of mutation, she was not directed to attend the proceedings of mutation.
3. The suit was contested by the petitioners-defendants by filing their written statement, wherein they refuted the averments made in the plaint by the respondent-plaintiff. The learned trial Court framed issues in view of the divergent pleas of the parties raised in their pleadings. On 3-7-2007, Roshan Gul, the husband of the respondent-plaintiff appeared as P.W.3 and was examined on behalf of the respondent-plaintiff. Dilawar Khan petitioner-defendant was examined as DW-1.
Except their sole statement, both the parties produced no further evidence. The learned trial Court after hearing the arguments, decreed the suit of the respondent-plaintiff vide judgment and decree dated 22-5-2008.
4. Feeling aggrieved from the above judgment and decree., the petitioners-defendants filed appeal which was dismissed by the learned appellate Court. Thereafter, the petitioners- defendants preferred revision petition before this Court which was accepted vide judgment dated 3-5-2010, judgments and decrees of both the Courts below were set aside and the case was remanded to the trial Court with the directions that the respondent-plaintiff be allowed to amend her plaint by impleading Gul Pari Khan and provide opportunity to the parties for producing evidence. The respondent-plaintiff, after remand of the case, filed an amended plaint impleading Gul Pari Khan in the panel of defendants. V Written statement was submitted by petitioners- defendants and issues were framed again. Mst. Badshahzadi appeared in person and examined as P.W.1 on 2-9-2010. The petitioners-defendants applied for appointment of local commission for recording of statement of Munawar Khan, the alleged witness of mutation (Exh.P.W.1/1) who was examined as DW-2. After hearing the parties, the learned trial Court again passed preliminary decree in favour of respondent- plaintiff against the petitioners-defendants.
5. Feeling aggrieved, the petitioners filed appeal assailing the judgment and decree so passed against them. The learned appellate Court dismissed the appeal vide impugned judgment and decree. Hence, the instant revision petition by the petitioners-defendants.
6. The learned counsel appearing on behalf of the petitioners contended that both the Courts below failed to attend the material available on record. He further contended that the respondent- plaintiff, in the garb of filing amended plaint as per direction of this Court, added in her plaint additional relief for which she was not entitled without leave of the Court. He argued that the respondent-plaintiff remained silent for sufficient long period. Moreso, no share of produce or rent has been paid to the respondent-plaintiff. The petitioners-defendants are in possession of the property and have succeeded to prove the sale transaction by the testimony of Munawar Khan, one of the marginal witnesses of the mutation whereas the other witness has died.
7. I have considered the submissions of learned counsel for the petitioners and carefully perused the available record.
8. Perusal of the record reveals that the petitioners-defendants have miserably failed to prove the sale transaction in their favour by the respondent-plaintiff. After remand of the case, at the instance of petitioners-defendants, a local commission was appointed who visited the house of one Munawar Khan, the alleged witness of mutation and recorded his statement, whereafter the local commission submitted his report. It is stated by Munawar Khan in his statement that at the time of attestation of mutation, the respondent-plaintiff was not present there as he has not seen her. It is also stated by the said witness that no sale consideration was paid in his presence. In his cross-examination, the witness deposed that on the mutation (Exh.P.W.1/1) his signature is not visible as the same is the Photostat copy. He, however, stated that at the time of attestation of mutation, he signed as witness to the said mutation. It is important to note that the witness admitted that his statement is not recorded on Oath, meaning thereby that he was reluctant to depose in , favour of the petitioners-defendants. This witness was not confronted with his so-called thumb impression or signature, if at all, taken on the original mutation. Similarly, the respondent- plaintiff, who has also purportedly signed or thumb impressed the mutation, was also not confronted with such thumb impression or signature by showing the original mutation which is the essential requirement of law in order to establish that whether certain document stated to be executed by a person is in his handwriting or not which can only be ascertained by confronting the same. This is the requirement of Article 140 of Qanun-e-Shahadat Order, 1984 which is reproduced below for ready reference:- "140. Cross-examination as to previous statements in writing.--A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. "
It is envisaged from the perusal of provision of above referred Article that to prove the previous statement of the party/witness relying on such previous statement/writing of other party/witness embodied in a document should put that statement/writing to him to give him opportunity to explain his position and without complying with requirements of section 145, Evidence Act, 1872, such previous statement could not be used as legal evidence. In this respect, reliance placed on the case titled Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCM R 65). In this judgment, section 145 of the Evidence Act, 1972 was taken into consideration. Article 140 of Qanune- Shahadat is the corresponding provision of section 145 of the Evidence Act, 1972. Without complying the procedure laid down in above Article, if a document is not confronted to a person, such document cannot be used as legal evidence.
9. As far as the sale consideration is concerned, it has been considered as an essential component of sale. If any person claims that he has purchased the property owned by the other person, he is duty bound to prove by cogent, convincing and confidence inspiring evidence that in pursuance of the sale transaction, the sale consideration is duly paid. In the instant case, the relevant pieces of evidence have been referred in earlier part of the judgment, wherein Munawar Khan (DW-2), purportedly the witness of mutation, categorically denied that his thumb impression or signature is not visible as the mutation is Photostat copy. Moreover, he stated that no sale consideration was paid to the respondent-plaintiff in his presence. He went to this extent that the presence of lady has not been noticed by him at the time of attestation of mutation.
10. Besides, had there been any sale consideration paid by the petitioners-defendants to the respondent-plaintiff, they would have mentioned this important aspect in their written statement but they failed to disclose that how. Much sale consideration was paid by them to the respondent- plaintiff for sale of the suit property, although it was their legal duty to plead material facts in the written statement and then lead evidence. A strong presumption can be drawn that no sale transaction was effected as alleged by the petitioners-defendants, as such, no sale consideration was paid to the respondent-plaintiff. In this respect, reference may be made to the case titled Muhammad Shaft and others v. Allah Dad Khan (PLD 1986 SC 519) wherein it was held that:- "The learned counsel for the appellant laid great emphasis on the admission of the respondent as to the receipt of the sale consideration before the Registrar. But this admission is not conclusive. In Motilal Sahu v. Ugrah Narain Sahu and others (AIR 1950 Pat. 288), it was held, while considering the implication of section 54 of the Transfer of Property Act, that where a registered sale deed contained a recital for the passing of the full consideration and the delivery of possession to the vendee but in point of fact not a farthing passed under the sale deed and the possession of the property and the registered sale-deed remained with the vendor, the inference was irresistible that the intention of the parties was that title would not pass unless consideration money was paid; and as no money was paid title in the property remained with the vendor. The case of Muhammad Murtaza Hussain v. Abdul Rehman (AIR 1949 Pat.364), was followed in Motilal. Sahu v. Ugrah Narain Sahu and others (supra), in which it was held that parol evidence could be led to consider the recital in the deed acknowledging the receipt of consideration to show that it was, in fact, not paid and section 92 was not a bar to the admissibility of this evidence."
11. The Pardanashin lady is enjoying certain protection under the law and the person who entered into any transaction with Pardanashin lady, he must satisfy the conditions laid down under the law.
If he fails to fulfil the requirements, the transaction cannot be deemed as reflected in the document. In this respect, the observations of august Supreme Court given in the case titled Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) are reproduced below:-- "The protection afforded by section 16 of the Contract Act against undue influence, to Pardanashin ladies and other similarly placed parties and entrenched in the case-law as also available under the Islamic law already discussed, would require so many conditions to be satisfied. Admittedly, in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of the alienor. The discussion in this behalf in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful."
' Certain conditions have also been laid down for protecting the rights and interest of Pardanashin ladies, whenever they enter into similar transactions. These conditions have been enumerated in the case titled Subedar Suleman Khan v. Mst. Makhmal Jan and another (PLD 1974 AJ&K 106) which are reproduced below for ready reference:- "(1) What was the origin of her intention to act in the manner the document sets out?
(2) Whether the transaction was a natural disposition or an unnatural disposition?
(3) Whether the disposition took place in a natural, normal manner?
(4) Whether she kept any part of the property for herself or transferred the whole?
(5) Whether the transaction was righteous in character?
(6) Whether she had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare?
(7) Whether she had benefited from the money raised by the transaction?
(8) Whether the document was explained to her and whether she really had the capacity to understand its consequences?
(9) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(10) Whether the contract or deed was just in itself?
(11) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
' Whenever a transaction is challenged by a Pardanashin lady on grounds of fraud, collusion and misrepresentation, the beneficiary of the transaction is under legal duty to prove by producing overwhelming evidence to establish the genuineness of the sale transaction. In the instant case, the petitioners-defendants are the real brothers of the respondent-plaintiff. They failed to prove that sale transaction was effected with the respondent-plaintiff, she has received the sale consideration, made the statement before the Revenue Officer, thumb impressed the mutation and the Revenue Officer made her to understand the nature of transaction. More so, she was accompanied with a person who could provide her independent advice. In the instant case, all the pre-requisites of transaction with a Pardanashin lady are missing. Reliance placed on the case titled Muhammad Nazir v. Khurshid Begum (2005 SCM R 941) wherein it was observed that:- "The plea of the respondent that she was made to thumb mark the document by giving her understanding that loan was to be obtained for purchasing tractor by the petitioner was very much known to the petitioner not only from the contents of the plaint but also from the evidence of the respondent when she appeared as P. W.1 but in spite of that none of the witnesses of the petitioner stated that the document Exh.D-1 i,e, the sale deed was read over to the respondent to make her known as to its contents, therefore, it was rightly held by the learned Judge of the High Court that execution of sale deed had not been proved in accordance with law, for mere presence of thumb impressions on the document of the respondent which she had alleged to have been obtained by giving her understanding to get loan for tractor were not sufficient to prove the execution. It may also be mentioned here that the petitioner did not produce any witness from the village to witness the execution of document, for the son of the scribe Syed Ejaz Ali was made to witness of the execution of the document who was not resident of the village. The respondent- plaintiff was a widow having minor children according to learned counsel but none of the near relatives was made to join the transaction and its settlement to prove that the respondent had independent advice about what she was doing as according to settled law, such an evidence necessary to prove execution of sale deed by an illiterate Pardanashin lady in a case where the execution thereof had been denied and document challenged on the ground of fraud."
12. As far as question of limitation is concerned, suffice it to say that the petitioners-defendants failed to prove the genuineness of transaction Of sale, thus, the same is not genuine and the result of fraud and collusion just to deprive the respondent-plaintiff of her valuable rights in the suit property. It is by now well settled that for setting aside a transaction tainted with fraud, no time limit is prescribed. In such circumstances, the aggrieved person can approach the Court for his redressal when the fraud discovers. As stated above, the parties are brothers and sisters inter se and co-sharers in the suit property. The rule laid down in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) is that:-- "To the similar effect is the decision in "Najabat and others v.. Saban Bibi and others (PLD 1982 SC 187). It was held in the circumstances of that case that the co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries."
13. It is also contended by learned counsel for the petitioners-defendants that there is no legal requirement that the witness or the vendor must sign the mutation of sale. The contention is misconceived and not supported by any provision of law. It is, however, provided in subsection (7) of section 42 of the West Pakistan Land Revenue Act, 1967 that except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons preferably from Lambardars or members of Union Committee, Town Committee or Union Council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations. In the instant case, Munawar Khan (DW-2) excluded the presence of respondent- plaintiff at the time of attestation of mutation.
14. There is yet another principle enshrined in Article 127 of Qanun-e-Shahadat Order, 1984 which provides that when there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. In this respect, reliance placed on the case titled Arshad Khan v. Mst. Resham Jan and others 2005 SCM R 1859 wherein it was held that:-- "Be that as it may, in view of an admitted fact that respondents were parda observing ladies, the stand of the petitioner, qua their identification before the Revenue Officer, would be falsified and as a result thereof the very foundation of his case would be demolished. This is settled principle of law that if the genuineness of a transaction entered on behalf of pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in position of active confidence. There is settled law regarding the disposition of property of pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence. There can be no departure to the rule that if the good faith and genuineness of a transaction by virtue of which a right is created in the property, is disputed by its maker, the same in absence of proof of good faith and genuineness, would be voidable and in consequence thereto the entries on the basis of such transaction in the official record, would have no legal sanctity."
15. For the reasons mentioned above, I am of the view that both the learned Courts below have correctly appraised the factual and legal position of the case and arrived at just and proper conclusion. The judgments are not the result of any illegality or material irregularity warranting interference of this Court in exercise of revisional jurisdiction. The revision petition being without substance is hereby dismissed in limine.