' SHAH JEHAN KHAN AKHUNDZADA, J.---Initially Syed Amir Hussain Shah respondent No,1 /plaintiff instituted a suit against Mst.Ghulam Sakina and others respondents Nos. 2 to 9/defendants for possession through specific performance and thereafter on 6-1-1993 an amended plaint /suit was filed wherein besides the aforementioned respondents/defendants, the petitioners were also arrayed as defendants. It is alleged in the plaint that Mutation No,360 attested on 8-3-1988 by Mst.Ghulam Sakina/defendant in favour of Mst. Sher Bano petitioner No, 1/defendant with regard to the suit property measuring 6 Kanal 2 Marla comprising in Khata Nos.70 to 73, 79 and 80 (new Khata Nos.108 to 111, 117 and 118) and Waseeqa No,630 registered on 20-4-1987 regarding Khata Nos.76 to 78 (new Khata Nos.114 to 116) measuring 5 Kanal 9 Marla by respondent No,2/defendant in favour of petitioners No,2 to 11/defendants are wrong, void and liable to cancellation. It is further alleged that cancellation of Mutation No,268 entered by respondent No,2/defendant in favour of Mst. Sughra predecessor-in-interest of respondents Nos.3 to 9/defendants in favour of respondent No,1/plaintiff on the fictitious and wrong report of the Patwari Halqa is also wrong, baseless and ineffective upon his right and respondents Nos.2 to 9/defendants and the petitioners/defendants are not entitled to claim the ownership of the disputed property. Respondent No,1/plaintiff has also sought for prohibitory injunction restraining the defendants from interference in the possession of the disputed property. The respondent No, 1/plaintiff has also sought for possession through specific performance of an agreement dated 20-8-1985.
2. The suit was contested by respondent No,2/defendant and the 'petitioners/defendants by filing written statement while respondents No,3 to 9/defendants suitted cognovit. The divergent pleadings of the parties gave birth to the following issues:--
3. After recording pro and contra evidence of the parties and hearing their counsel, the learned Civil Judge-IV, D.I.Khan vide his judgment and decree dated 02/05/2007 dismissed the suit of the respondent No, 1/plaintiff. Feeling aggrieved from the judgment and decree of the learned trial Court, an appeal has been preferred by the respondent No,1/plaintiff before the learned Additional District Judge-II, D.I.Khan who vide his judgment and decree dated 15-1-2009 accepted the appeal, set aside the judgment and decree of the learned trial Court and passed a decree for specific performance of an agreement deed along with decree for possession in favour of respondent No,1/plaintiff. The concluding para of the judgment is reproduced as under:- "Nutshell of the above is, the appeal succeeds, the impugned judgment and order are set asides with the findings that respondent Mst. Sakeena Bibi and the second vendor Mst,Sughran had practically sold their entire ownership with whatever shares they then had in the khata numbers mentioned in the agreement deed dated 20-4-1985 to appellant Syed Ameer Hussain Shah who is therefore entitled to the decree of specific performance of agreement deed dated 20-4-1985 against the said vendors. Since the legal heirs of Mst. Sughran Bibi have admittedly honoured the said agreement deed and have already transferred the share of their mother Mst.Sughran Bibi in favour of the present appellant vide Mutation No,1069 dated 27-3-2002, a decree of specific performance is therefore, granted in favour of the appellant to the extent of respondent Mst. Sakeena Bibi only; the exchange Mutation No,360 dated 8-3-1988 (Exh.APW111) and the registered sale deed No,630 dated 20-4-1988 (Exh.APW2/1) are held to be void in view of the fact that the same were made during the pendeney of the suit and since Mst.Sakeena Bibi had already done away with her share and could not subsequently enter into any transaction in the face of her agreement with the appellant.
' A decree of specific performance of agreement deed along with decree for possession as per law is granted in favour of the appellant. Appeal allowed".
4. Feeling aggrieved from the judgment and decree of the learned Appellate Court, the petitioners/defendants have filed the instant revision petition.
5. I have heard the learned counsel for the parties and have also gone through the record of the case with their valuable assistance.
6. The claim of the respondent No,1/plaintiff is that Mutation No,360 attested on 8-3-1988 by Mst.Ghulam Sakina/defendant in favour of Mst. Sher Bano petitioner No, 1/defendant with regard to the suit property measuring 6 Kanal 2 Marla comprising in. Khata Nos.70 to 73, 79 and 80 (new Khata Nos.108 to 111, 117 and 118) and Waseeqa No,630 registered on 20-4-1987 regarding Khata Nos.76 to 78 (new Khata Nos.114 to 116) measuring 5 Kanal 9 Marla by respondent No,2/ defendant in favour of petitioners Nos.2 to 11/defendants are wrong, void and liable to cancellation. It is further alleged that cancellation of Mutation No,268 entered by respondent No,2/defendant in favour of Mst. Sughra predecessor-in-interest of respondents Nos.3 to 9/defendants in favour of respondent No,1/plaintiff on the fictitious and wrong report of the Patwari Halqa is also wrong, baseless and ineffective upon his right and respondents Nos. 2 to 9/defendants and the petitioners/ defendants are not entitled to claim the ownership of the disputed property. Respondent No,1/plaintiff has also sought for prohibitory injunction restraining the defendants from interference in the possession of the disputed property. The respondent No, 1/plaintiff has also sought for possession through specific performance of an agreement dated 20-8-1985.
7. The moot question for determination by this Court is as to whether Mst. Ghulam Sakina, respondent No,2/defendant and Mst. Sughra Bibi, predecessor of respondents Nos.2 to 9/defendants have sold the suit property to Syed Amir Hussain Shah, respondent No,1/plaintiff through an agreement deed dated 20-8-1985 for a sale consideration of Rs,10,000. Perusal of the record would reveal that on the basis of the above agreement deed a Mutation No,268 was entered but the same was cancelled by the Revenue Officer on 7-10-1986. The aforesaid vendors have denied any sale in favour of the vendee, respondent No,1/plaintiff thus, the respondent No,1/plaintiff is the beneficiary is the same and the burden of proof is always on him who is beneficiary of the agreement deed in question. Further perusal of evidence produced by respondent No,1/plaintiff in suit shows that he has bitterly failed to discharge his burden through cogent, conclusive and trust-worthy oral or documentary evidence. Syed Amir Hussain Shah respondent/plaintiff examined himself as P.W.1 and deposed that Mst.Sakina Bibi and Mst.Sughran Bibi have received sale consideration in presence of his brother Ghulam Raza Shah P.W.6 and other women folk but he has not mentioned in his plaint that in whose presence sale consideration has been paid to the aforesaid ladies. Riaz Hussain Shah P.W.7 in his statement had deposed that the transaction of sale was struck between the plaintiff, Mst.Sakina Bibi and Sughra Bibi through Akhtar brother a',.' one Najamul Hassan Shah but the plaintiff/respondent No,1 has neither menion the names of the aforesaid persons in the plaint nor they have been produced at the trial to confirm the sale transaction between the I parties. It is also worth mentioning here that according to the statements of Muhammad Ibrahim Petition Writer C.W.1 and Islam-ud-Din CW.2 Stamp Vendor, the stamp paper was allegedly issued on 22-8-1985 but the date of its execution is recorded as 20-8- 1985. Allah Bakhsh P.W.8 husband of Mst.Ghulam Sakina produced by the respondent No,1/plaintiff as marginal witness to the agreement deed dated 20-8-1985 who denied not only his thumb impression but also denied the thumb impression of his wife on the agreement deed dated 20-8- 1985. In view of this denial he was declared as hostile and was cross examined by the learned counsel for the respondent/plaintiff but his statement/testimony was not shattered on the material points.
8. It is evident from The perusal of the evidence that the respondent No,1/plaintiff have failed to establish his claim through an cogent evidence as the witnesses produced by him could not establish the execution of the alleged deed by Mst. Ghulam Sakina and Mst.Sughran Bibi predecessor of respondents Nos.3 to 9 or by their authorised agents. There is nothing on record to suggest that the aforesaid ladies were party to the transaction as they neither negotiated the sale or entered into any agreement to sell their property to the respondent No,1/plaintiff nor they received any sale consideration. The Courts have to be very cautious while dealing with the documents purportedly executed by parda nashin lady. It is settled law that a document purportedly executed by an illiterate parda nashin lady has to be proved beyond any shadow of doubt by the person who relies upon such document. The court has to satisfy itself that the document executed by the illiterate parda nashin lady was A within her full knowledge and comprehension about its subject matter and that she understood about the nature and effect of the transaction with independent application of mind and the execution of such document was independent and voluntary and if these ingredients are missing, then the document would not be deemed to be genuine. In the present case the respondent No, 1/plaintiff has failed to establish the alleged deed that it was independently and with complete knowledge was executed by the aforesaid ladies themselves regarding the subject matter of dispute.
9. So far as the transfer of the suit property by Mst.Ghulam Sakina Bibi respondent No,2/defendant in favour of Mst.Sher Bano and legal heirs of Imdad Hussain Shah petitioners/defendants through Waseeqa No,630 dated 20-4-1988 and Mutation No,360 dated 8-3-1988 is concerned, in this respect Muhammad Aslam Muharir Sub-Registrar Office appeared as APW.2 who produced register Bai No,1 Jild No,570 Waseeqa No,630 pages 347 to 348 having been registered on 20-4- 1988 copy of which is Exh.APW2/1 on file vide which Mst.Ghulam Sakina Bibi sold out her share to the extent of 5 Kanal 9 Marla to lmdad Hussain Shah predecessor of petitioners Nos. 2 to 11 in lieu of Rs,7105 and no objection has been raised by the respondent No,1/plaintiff to the production of this document and it is a registered document which creates right in favour of petitioners Nos.2 to 11 to which presumption of truth is attached to it. Vide mutation No,360 Exh.APW1/1 Mst.Ghulam Sakiria Bibi exchanged the disputed property to the extent of 6 Kanal 2 Marla with Mst.Sher Bano petitioner No,l. In this view of the matter Mst.Ghulam Sakina Bibi was legally competent to alienate and exchange her property in favour of the petitioners.
10. So far as the opinion of Hand-writing Expert regarding the thumb impression of Mst. Ghulam Sakina Bibi is concerned, it is a very weak type of evidence and is not of a conclusive nature. It is well established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available (PLD 1976 Supreme Court 53).
There is no doubt that the opinion of Hand-writing Expert is relevant but it does not amount to conclusive proof and can be rebutted by overwhelming independent evidence.
11. It is settled proposition of law that in the event of a conflict of judgment between the two Courts, findings recorded by the Appellate Court should ordinarily be preferred to the findings of the trial Court unless the same is not supported by legal evidence or is based on surmises and conjectures.
In the present case I am satisfied that the learned Appellate Court misdirected itself by taking a different view from the view taken by the trial Court and committed a gross error by mis- appreciating the evidence adduced by the parties. By adopting a view not supported by the material on record appellate Court committed a jurisdictional error of law thereby causing gross injustice which earnestly deserves interference by this Court in the exercise of its revisional jurisdiction in order to do substantial justice and' to obviate the miscarriage of justice.
12. For what has been discussed above, this revision petition is accepted, the judgment and decree dated 15-1-2009 of the learned appellate Court is set aside and that of the trial Court dated 2-5- 2007 is restored, meaning thereby that the suit filed by Syed Amir Hussain Shah, respondent No,1/plaintiff stands dismissed. Parties are directed to bear their own cost.