' MALIK SHAHZAD AHMAD KHAN, J.- The instant Civil Revision has been filed against the judgment and decree dated 16-1-2003, passed by the learned Additional District Judge, Chakwal, as well as, against the judgment and decree dated 22-1-2002, passed by the learned Civil Judge, Chakwal.
2. As per brief facts of the present ease, the respondent/plaintiff Mst. Farida Sajid filed a suit for declaraton and possession to the effect that she be declared owner of-
(A) Land measuring 44 kanals, 9 marlas, 100/5589 share out of total 2484 kanals of land, Kata and Khatooni Nosl/l to 5 situated in village Kahinpur Tehsil Chakwal on the basis of record of rights for the year 1996-97.
(B) Land measuring 17 marlas, 1/36 Shares out of total 31 kanals, 1 maria in Khasra No,5007 and land measuring 4 kanals, 1/9 share out of total 35 kanals, 5 marlas, Khasra No,5027, Khata and Khatooni No,869/2451 situated in village Chak Baqar Shah on the basis of record of rights for the year 1995- 1996.
' It was further prayed that Mutation No,2 dated 7-1-1987 of village Kahinpur and Mutation No 3185 dated 31-1-1987 of village Chak Baqar Shah be declared illegal and void as the same have been got attested by the petitioner/defendant in collusion with the concerned Revenue staff and the same were fictitious, based on fraud and cheating, void and ineffective upon the rights of the respondent/plaintiff and were liable to be cancelled to the extent of share of the respondent/plaintiff. The respondent/plaintiff also prayed for possession of the suit-land.
According to the plaintiff/respondent, the above mentioned suit-land had fallen to her share from the inheritance of her father. It was claimed by the plaintiff/respondent that she never appeared before any Revenue Officer and the petitioner/defendant, who is her brother and an influential person, being in league with the concerned Revenue Staff, got the impugned mutations sanctioned in his name. It was also averred that the impugned mutations are result of fraud and forgery, therefore, the same may be set aside. It was also stated in the plaint that the plaintiff/respondent is a Pardahnashin lady and due to transfer/s'ervice of her husband in different cities, she had no knowledge of the impugned mutations and three months prior to the institution of the suit, she checked the Revenue Record and came to know that the petitioner/ defendant had got her property transferred in his name by playing fraud.
3. The said suit was contested by the petitioner/defendant, who filed his written statement before the learned trial Court.
4. Out of the divergent pleadings of the parties, following issues were framed by the learned trial Court on 21-6-2001:- ' ISSUES.
(1) Whether the suit is time-barred? OPD.
(2) Whether the plaintiff is estopped by her words and conduct to file this suit? OPD.
(3) Whether the plaintiff is owner of the suit-land? OPD.
(4) Whether the plaintiff is entitled to the decree for declaration? OPP.
(5) Relief.
5. In the course of trial, both the parties led oral as well as documentary evidence in support of their respective claims.
' The respondent/plaintiff examined herself as P.W.1 and her husband Brigadier (Retired) Syed. Sajid Hussain Shah appeared as P.W.2. The plaintiff also produced copy of record or rights 1984-1985 Exh.P.I, copy of record of rights 1988-1989 Exh.P.2, copy of record of rights 1992-1993 Exh.P.3, copy of record of rights 1991-1992 Exh.P.4, copy of record of rights 1987-1988. Exh.P.5, copy of record of rights 1983-1984 Exh.P.6, copy of record of rights 1995-1996 Exh.P.7, copy of record of rights 1996-1997 Exh.P.8, copy of Mutation No,3185 Exh.P.9 and copy of Mutation No,2 Exh.P. 10 in support of her claim.
' On the other hand, only Javed Zulfi, special attorney of the petitioner/defendant examined himself as DW. 1 as well as produced special power-of-attorney Exh.D.1, copy of death entry of Syed Jaffar Shah Exh.D.2, copy of Mutation No,5 Exh.D.3, copy of Mutation No,2 Exh.D.4, copy of record of rights 1995-1996 Exh.D.5 and copy of record of rights 1996-1997 Exh.D.6 in support of his defence.
6. After conclusion of the trial, the learned Civil Judge, Chakwal decreed the suit, filed by the respondent/plaintiff, vide the impugned judgment and decree dated 22-1-2002.
7. The petitioner,, being aggrieved, filed an appeal, but the same was also dismissed by the learned Additional District judge, Chakwal vide the impugned judgment and decree dated 16-1-2003, hence, the present revision petition.
8. It is contended by the learned counsel for the petitioner that the impugned judgments and decrees have been passed in clear violation of law on the subject, therefore, the same are not sustainable in the eyes of law; that the impugned gift was made by three sisters and out of them only one sister has challenged the said mutation, which supports the claim of the petitioner that the impugned mutation was not fake and the same was genuine; that although fraud and forgery was alleged by the plaintiff/respondent, but no independent evidence was produced by the plaintiff to prove the alleged fraud/forgery; that the onus was on the plaintiff to establish the alleged fraud/forgery, but the said onus has not been discharged by the respondent; that the impugned Mutation No,2 was attested on 7-1-1987 and impugned Mutation No,3185 was attested on 31-1-1987, whereas, the suit was filed or 2-11-2002, thus, the suit of the respondent/plaintiff was hopelessly time-barred; that the issue of limitation has not been properly adjudicated upon and findings on the- said issue were passed by the learned courts below are not sustainable in the eyes of law; that the respondent while appearing in Court as P. W.1 has admitted that she was an educated lady and she was M.A.; that the respondent had also admitted that she had been in service in past, therefore, the respondent/plaintiff cannot be termed as an illiterate or "Pardah" observing lady, therefore, the protection available to an' illiterate and "Pardah" observing lady cannot be extended to the plaintiff/respondent; that No, issue was framed in respect of the alleged fraud; that the learned Additional District Judge, Chakwal has also mentioned at Page No,10 of the impugned judgment that proper issues have not been framed in the instant case, therefore, the impugned judgments arid decrees are not sustainable in the eyes of law; that the respondent/plaintiff has failed to prove any fraud on the record to justify the cancellation of gift mutation which was made by her in favour of the petitioner/defendant, therefore, this petition may be accepted and the impugned judgments and decrees may kindly be set aside.
9. On the other hand, the learned counsel for the respondent has vehemently opposed this petition on the grounds that the concurrent findings of the courts below have been passed strictly in accordance with law; that the petitioner/defendant, being beneficiary of the impugned mutations, had miserably failed to prove the genuineness of the said mutations; that mere this fact that the plaintiff/respondent is an educated lady or she had been in service, in past, does not mean that the respondent/plaintiff is not a "Pardah" observing lady; that the respondent/plaintiff cannot be deprived of her share in the inheritance of her father without any legal justification; that the plaintiff/respondent never appeared before any Revenue Officer and she never made any gift in favour of the petitioner/defendant; that the impugned mutations are result of fraud and forgery committed by the petitioner/defendant, being in league with the concerned revenue staff; that the question of limitation does not arise in the cases of inheritance; that the petitioner/defendant has miserably failed to establish that he was prejudiced in his defence due to non-framing of any issue as alleged by the petitioner; that the petitioner/defendant was himself a party before the learned trial Court and his counsel was present at the time of framing of issues and it was his duty to raise objection at the relevant time, when the issues were being framed by the learned trial Court; that no objection was raised by the petitioner/defendant at the relevant time therefore, the said objection Cannot be taken at this stage; that the impugned judgments and decrees do not suffer from any illegality or material irregularity, therefore, this petition is liable to be dismissed.
10. Arguments heard and record perused.
11. The respondent Mst. Farida Sajid filed a suit for declaration and possession in respect of the property, fully described in para No,2 supra. The plaintiff/respondent claimed that she was owner of the said property as the same was inherited by her out of the legacy of her father. The respondent/plaintiff and the petitioner/defendant are admittedly real brother and sister inter se.
According to the plaintiff/respondent, she never made any gift in favour of the petitioner/defendant and the impugned gift mutations are result of fraud and forgery. She had claimed that she was a 'Pardahnashin' lady. She remained out of the village, because of service of her husband. Her husband was Principal of Boys Scout Cadet College, Mansehra at the time of recording of her statement before the learned trial Court. Syed Muhammad Abdul Latif was her father. On his death, his property was inherited by the sisters and brothers of the respondent/plaintiff. The impugned mutations were attested in the year, 1987, when the plaintiff s/respondent's husband was in service in Sialkot. According to the plaintiff/respondent, she had not come to her village or to Chakwal in January, 1987. The petitioner/ defendant is eldest brother of the respondent/plaintiff. According to the plaintiff/respondent, the petitioner/defendant was an influential person in the local area and he being in league with the concerned revenue staff got her land transferred, in his favour. The respondent/plaintiff had stated that she never appeared before any Revenue Officer in connection with the above mentioned mutations. The plaintiff/respondent has herself appeared as P.W.1 before the learned trial Court in support of her above mentioned contentions. She was also cross-examined at length. The husband of the petitioner Brigadier (Retired) Syed Sajid Hussain Shah also appeared as P.W.2 before the learned trial Court. The said witness has also supported the contentions of the plaintiff/respondent. The above mentioned documentary evidence Exh.P.I to Exh.P.K) was also produced by the plaintiff/respondent in support of her claim. ,
12. In rebuttal, Javed Zulfi (special attorney) of the petitioner/ defendant was examined by the defendant/petitioner as DW.l. He deposed that the said mutations in favour of the petitioner/defendant were genuine and correct. According to him, the respondent/plaintiff along with her two sisters appeared at the time of mutation and made the impugned gift in favour of the defendant/petitioner. He has further deposed that it was incorrectly written as sale mutation in the impugned mutations. No other witness except the above mentioned DW.l was produced by the petitioner/defendant. The defendant/petitioner had also produced the documentary evidence Exh.D.1 to Exh.D.6 in support of his defence.
13. The respondent/plaintiff has categorically denied the execution of gift mutation in favour of the petitioner. The respondent/plaintiff has claimed that she was a 'Pardahnashin' lady and fraud, deception and misrepresentation have been played by the petitioner. It is by now well- settled law that in cases where pleas of fraud, deception and misrepresentation have been taken by a Pardahnashin lady in alleged disposal of her property, the onus in such cases lies on the person, who has taken advantage of the impugned transaction to establish the genuineness and bona fide of the document through which transactions had taken place. As discussed earlier, the plaintiff/respondent had categorically denied that she ever appeared before any Revenue Officer in connection with the impugned mutations. In the given circumstances, it was incumbent upon the petitioner/defendant to produce Circle Patwari, the marginal/attesting witnesses of the mutation (Pattidar/ Councillor etc.) and the Revenue Officer who had attested the suit mutations.
In this case, none of the above mentioned persons have been produced by the petitioner/defendant to establish the genuineness of the disputed mutations. So much so, that the petitioner himself did not bother to appear in the witness-box and in his place Javed Zulfi special attorney, had appeared as D.W.l. The said witness has admitted in cross-examination that he was not present at the time of disputed mutations. He has also shown his ignorance' regarding the place, where the disputed mutations were executed. He did not know the name of the Revenue Officer, who had attested the said mutations. In view of the above, it is evident that the petitioner/defendant could not discharge the onus to prove the genuineness and bona fides of the suit mutations.
14. A similar proposition came Under discussion before the Hon'ble Supreme Court of Pakistan in the case of Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5, others (2001 SCM R 1591) and it was held as under:- "(c) Pardahnashin lady- -Transfer of property of Pardahnashin lady-Plea of fraud- Burden of proof-Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document, through which transaction had been executed and the contents of such document were fully concerned and understood by the executant independently and freely".
' A similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Abdul Raheem and another v. MRs, Jannat Bibi and 13 others (2000 SCM R 346). Relevant part of the said judgment reads as under:- "Arts. 118 & 119-Gift-Validity-Burden of proof-Alleged donee had failed to discharge burden of proof on him to establish a valid gift by not entering the witness-box-Revenue Officer who allegedly attested the mutation*' of gift was not produced which was conspicuous to tell a lot about the nature of the alleged transaction of gift-High Court after considering the peculiar circumstances of the case had rightly found the gift to be doubtful. "
15. The learned counsel for the petitioner has argued that the petitioner is not a 'Pardah' observing lady, because she has admitted in her cross-examination, while appearing as PW.l that she has got education uptill M.A and she had been in service in past, therefore, the plaintiff/respondent cannot be termed as a 'Pardahnashin' lady.
' I do not agree with this argument of the learned counsel for the petitioner, because even a serving and educated lady can observe 'Pardah'. The nature of serviee/job of the plaintiff/respondent was not asked in cross-examination. It is a common observation that even serving and highly educated ladies do observe strict 'Pardah' and they are reluctant to go to male dominated departments/offices. The plaintiff/respondent originally belonged to a backward village of District Chakwal. In the given circumstances of the present case, it was foremost duty of the petitioner/defendant to prove the fact that the plaintiff/respondent had actually gone to the office of the Revenue Officer or she was present at the time of impugned mutations and she was fully aware of the disputed transaction. A reference in this respect may be made to the case of Jannat Bibi v. Sikandar Ali and others (PLD 1990 Supreme Court 642). The Hon'ble Supreme Court of Pakistan has held in the said case as #TBS under:- #TBE "Question whether a lady is a Pardahnashin lady is a question of fact-Burden of proof in respect of a document purported to have been executed by a Pardahnashin lady affecting her right ,or interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act, and if she is illiterate, it must have been read over to her-Rule is also applicable to ignorant and illiterate women. - " . .
I6. The petitioner has claimed that she was in possession of the suit- land and this fact shows that the gift was in fact made by the respondent/plaintiff. In my humble view, the possession of the petitioner over the suit-land was constructive in nature. It is well-settled law that under Islamic Law of inheritance, an heir in possession is to be considered in constructive possession of the property on behalf of all the heirs in spite of its exclusive possession. Reference may be made to the case of Khair Din v. Mst. Salaman and others (PLD 2002 Supreme Court 677).
17. The learned counsel for the petitioner has next contended that the suit filed by the plaintiff/respondent was hopelessly time-barred. In this case, the impugned Mutation No,2 was attested on 7-1-1987 and the impugned Mutation No,3185 was attested on 31-1-1987, whereas, the suit was filed on 2-11-2000.
' The plaintiff/respondent while appearing as P.W.1 has categorically stated that at the time of suit mutations her husband was posted at Sialkot in connection with his service and she did not come to her village in District Chakwal in the year, 1987, when the impugned mutations have been alleged to be attested. She has also stated that about one year prior to making of her statement in Court i,e, 28-7-2001, she learnt about the disputed mutations when she checked the relevant Revenue Record. Her husband Brigadier (Retired) 3yed Sajid Hussain Shah appeared as P.W.2. This witness has also categorically stated in his cross-examination that in the year, 1987, he was posted at Silakot and p the plaintiff/respondent was living with him at Sialkot and she did not come to her village. He has also stated that after marriage, the plaintiff never came to village Chohan, District Chakwal. The witness produced by the petitioner/defendant namely Javed Zulfi (DW.l) has shown his complete ignorance regarding the visits of the respondent/plaintiff to the village Chohan, District Chakwal. In the given circumstances, the suit filed by the plaintiff/respondent cannot be held as barred by limitation. The plaintiff has filed the suit within the period of limitation from the date of her knowledge: Even otherwise the question of limitation does not arise in the cases of inheritance. The fraud was also duly established L, by the plaintiff. Fraud vitiates even most solemn transaction and as such| any transaction based on fraud would be void and notwithstanding thei bar of limitation, the matter cart be considered on merits so as not to H allow fraud to perpetuate in this respect. In my above mentioned humble I view, I am fortified by the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642).
18, The learned counsel for the petitioner has also taken this objection that no issue regarding the alleged fraud was framed by the learned trial Court, therefore, the impugned judgment and decree may be set aside. The learned counsel for the petitioner could not establish any prejudice, in any manner, caused to the petitioner, due to the non- framing of issue of fraud. The defendant/petitioner was fully aware of the allegations levelled by the plaintiff/respondent. It was categorically mentioned in the plaint that the impugned mutations are result of fraud and forgery.
The special attorney of the petitioner/defendant while appearing as DW.l has stated in his examination-in-chief that no fraud was committed. It shows that the parties were fully aware I of the controversies between them, therefore, the petitioner'cannot claim that wax prejudiced in any manner whatsoever due to non- framing of issue of fraud. The defendant/petitioner was duly represented by his learned counsel. It was their duty to get the proper issue framed by the learned trial Court and to raise objection regarding the non-framing of any issue at the time of framing of the same. No such objection was taken by the petitioner or his learned counsel at the relevant time, therefore, this objection is inconsequential in the given circumstances, Reference in this respect may he made to the case of Fazal Muhammad Bhatti and another v, Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018). The- relevant part of the said judgment reads as below:- "-O.VI, R. 1 & O.XIV, R.1-Non-framing of specific issue when . Inconsequential-Pleadings and issues as originally framed, showed that parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each side-Non-framing of specific issue in such circumstances was, thus, inconsequential-Where issues were not framed but allegations made in the plaint were challenged in the written statement and Court had allowed evidence to be led, then decision rendered without framing of issues was not illegal."
' I am also fortified in my above mentioned views by the case of Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another (1988 SCM R 4). The relevant part of the said judgment is reproduced as under:- u,-O.XIV, R.1-Constitution of Pakistan (1973), Art. 185(3)- Issues-Framing of-Consequence of framing improper issues-Plea that failure to frame one or other issue at trial stage, in circumstances of case, would have effect of nullifying trial, repelled-Parties having led evidence keeping in view the precise grounds pressed by plaintiffs, no prejudice was caused to parties due to framing of an omnibus issue by trial court-Held: It was also duty of parties to get proper issues framed, if they had any objection or suggestion regarding framing of issues-No question requiring further examination being involved leave to appeal refused. "
' In the above mentioned context reliance may also be placed on the case of Muhammad Akram alias Raja v. Muhammad Ishaq (2004 SCM R 1130).
19. The learned counsel for the petitioner could not point out any material illegality or irregularity in the impugned judgments and decrees, passed by the courts-below in the matter.
20. In light of the above discussion, this petition has no force and the same is hereby DISMISSED. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.