' MAHMOOD AHMAD BHATTI, J.---This civil revision is directed against the judgments and decrees dated 20.10.2011 and 21.3.2014 passed by learned Civil Judge, Layyah and an Additional District Judge Layyah, respectively, whereby the suit of the respondents was decreed and an appeal instituted by the petitioners was dismissed.
2. Concisely put, the facts are that Mst. Razia Bibi and Mst. Kalsoom Bibi, respondents herein instituted a suit for declaration along with perpetual and mandatory injunctions, contending therein that they are illiterate, Purdah Nashin rustic women, who are owners of land measuring 42 Kanals bearing Khewat No. 84, situated at Chak No. 332/TDA, Tehsil and District Layyah and that sale Mutation No.384 dated 21.7.2005 was the outcome of fraud and misrepresentation. It was further averred in the plaint that they never sold the suit land to Muhammad Hanif and Abdul Latif, the petitioners herein nor did they receive any sale consideration therefor. It is pertinent to mention that the petitioners are real brothers of the respondents/ plaintiffs.
3. The defendants/petitioners entered appearance and filed written statement, controverting the pleas of the plaintiffs both on the factual and legal plane. In addition to raising preliminary objections to the maintainability of the suit, it was specifically asserted by them that they purchased the suit land for a consideration of Rs.2,00,000/- from the plaintiffs. It was further maintained by them that possession was delivered to them in the wake of the attesting of Mutation No.381 dated 21.7.2005.
6(sic) The divergent pleadings of the parties crystallized into the following issues:-- ' Issues.
(1) Whether the plaintiffs are owners in possession of the suit land and the defendants have no concern with any part of the suit land and mutation No.381 dated 21.7.2005 in favour of defendants against the plaintiffs is against law, facts, result of fraud and impersonation and liable to be cancelled? OPP
(2) Whether the plaintiffs are entitled to the decree of declaration as prayed for? OPP
(3) Whether the plaintiffs are entitled to the decree of permanent injunction as prayed for? OPP
(4) Whether the plaintiffs have no cause of action? OPD
(5) Whether the instant suit is not maintainable in its present form? OPD
(6) Whether the instant suit is improperly valued for the purpose of court fee and jurisdiction? OPD
(7) Whether the instant suit is bad for non joinder of necessary parties? OPD
(8) Whether the plaintiffs are estopped by their words and conduct to file the instant suit? OPD
(9) Whether the instant suit is false, frivolous and defendants are entitled to receive Rs.25,000/- as special costs? OPD
(10) Relief.
7. In order to prove their case, one of the plaintiffs, Mst. Kalsoom Bibi appeared as P.W.1 and testified on oath that neither she nor her sister, Mst. Razia Bibi had made sale of the suit land to the petitioners. She also deposed that the plaintiffs did not receive any sale consideration from the plaintiffs. In their documentary evidence, the plaintiffs got exhibited copy of Mutation No.381 as Exh.
P.1 and an extract from the Death Register relating to late Muhammad Siddique as Exh. P.2. It may be added here that Rana Muhammad Siddique was the predecessor-in-interest of the parties to the suit.
8. In order to rebut the evidence produced by the plaintiffs' side, one of the defendants, Abdul Latif appeared as D.W.1, and they also examined Muhammad Nawaz D.W.2, Farzand Ali D.W.3, Munshi Abdul Sattar D.W.4, Mukhtar Ahmad D.W.5 and Malik Muhammad Ibrahim D.W.6. Besides, the defendants tendered in evidence copy of Mutation No.381 dated 21.7.2005 as Exh.D-1 and closed their evidence.
9. Having appraised the evidence produced by the parties, the learned trial Court seized with the suit decreed the suit of the plaintiffs/respondents vide judgment and decree dated 20.10.2011.
Feeling aggrieved, the petitioners herein instituted an appeal before learned District Judge, Layyah, which ultimately came on the file of learned Additional District Judge Layyah, who concurred with the findings recorded by the learned trial Covrt and dismissed the appeal vide judgment and decree dated 21.3.2014. Hence this revision petition.
10. In support of the revision petition, Mr. Muhammad Younas Sheikh Advocate, learned counsel for the petitioners contends that the suit was absolutely barred by time; that the petitioners/defendants had produced all the relevant evidence and they fulfilled the requirements of Section 42 of W.P. Land Revenue Act, 1967, but their evidence was discarded without any rhyme or reason; that both the impugned judgments suffer from the vice of misreading and non-reading of the evidence. It was also lamented by him that the onus to prove the transaction in question was wrongly shifted on to the defendants/ petitioners. According to him, the plaintiffs did not produce any credible evidence, and only one of the plaintiffs appeared as her own witness. He forcefully argues that in the face of this slender evidence, concurrent findings should not have been recorded against the petitioners.
11. I have heard the learned counsel for the petitioners at length and perused the record appended to the revision petition with his assistance.
12. I have carefully gone through the judgments impugned by the petitioners. In my view, both the Courts were at pains to advert to each and every aspect of the matter under consideration. It was taken note of by them that the plaintiffs are real sisters of the defendants, who are married and are living in District Khanewal, while the suit land lies in District Layyah. Both the learned Courts below underscored that the plaintiffs did not have any independent advice at the time of the alleged attesting of Mutation No.381 dated 21.7.2005. It also did not escape their notice that the defendants failed to prove the transaction in question. In point of fact, the defendants did not make any conscious effort to prove as to where, when and how the transaction in question was made. The testimony of Muhammad Nawaz (D.W.2) sent a death knell to the case of the defendants. In cross- examination, he admitted that at the time of the alleged attestation of mutation in question, his eyesight was weak and somewhat impaired. It was also not denied by him that he was dumb.
Strangely enough, he is said to have identified the plaintiffs as Lamberdar of the village but he expressed his ignorance about the whereabouts of the plaintiffs and as to where they were living after marriage. Likewise, the testimony of Abdul Latif (D.W.1), one of the defendants strikes at the roots of the case of the defendants. In cross-examination, he stated that he paid the sale consideration to the plaintiffs in the presence of Tehsildar. On the other hand, the Tehsildar, Malik Muhammad Ibrahim (D.W.6) stated unambiguously, categorically and unequivocally that no money was paid in his presence. He also admitted that the photographs of the vendors/plaintiffs pasted to the mutation in question did not bear his signatures, official stamps etc. He went on to state that looking at the snaps, he cannot say as to which one is Mst. Razia and which photo is of Mst. Kalsoom Bibi.
13. In this state of affairs, both the learned Courts below arrived at the correct conclusion that the defendants had failed to prove both the transaction in question and the payment of the alleged sale consideration to the plaintiffs. It goes without saying that no agreement can come into being without the payment of consideration, as has been laid down by the legislature in Section 25 of the Contract Act, 1872.
14. Furthermore, there is not an iota of evidence produced by the petitioners to show that an independent advice was available to the plaintiffs at the relevant time. It bears repeating that both the plaintiffs/respondents are married in Khanewal. Had the transaction in question not been cloaked in mystery and the result of fraud and misrepresentation, the petitioners would have ensured the presence of their husbands or sons for that matter. It has also not been controverted by the petitioners that both the plaintiffs are illiterate, which is also borne out by the fact that mutation in question bears their purported thumb impressions, not their signatures.
15. In a string of judgments, it has been held by the superior Courts that even the admission of affixing tng Society Ltd. Poona and others (AIR 1968 Born. 106), Hamid Qayyum and others v.
Muhammad Azeem and another (PLD 1995 SC 381) Sanaullah and another v. Muhammad Manzoor and another (PLD 1996 humb impression to a document by an illiterate would not lead to conclusion that he/she was admitting the execution of the transaction in question. In this respect reference may well be made to the judgment of the apex Court reported as "Ch. Muneer Hussain v.
Mst. Wazeeran Mai alias Mst. Wazir Mai" (PLD 2005 SC 658) in which it was held as under:-- "If a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's handwriting, the said Article places emphasis on the proof of identity of author of questioned documents and this Article does not say that mere proof of handwriting/ signatures/ thumb-impressions of executant will prove truth of the said document.
Reliance in this regard was placed on Madhu Lal v. Asian Assurance Company (AIR 1954 Born. 305), Bank of Poona v. N.C. HousiSC 256)."
16. As for the onus of proof regarding the genuineness of a transaction with a Pardahnasheen lady, the following statement of law made in "In Amirzada Khan and another v. Itbar Khan and others (2001 SCM R 609) was reiterated and cited with approval in the above-quoted judgment of "Ch. Muneer Hussain v. Wazeeran Mai alias Mst. Wazir Mai" (PLD 2005 SC 658).
"In Amirzada Khan and another v. Itbar Khan and others (2001 SCM R 609), this Court held as follows:- ' It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a 'Pardahnasheen' lady and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the documents. Such a person is legally obliged to prove and satisfy the Court; firstly, that the document was executed by 'Pardahnasheen' lady and secondly, that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. The evidence on record as discussed by the Appellate Court and the High Court does not satisfy the above standard. The plaintiff failed to prove that at any stage during the proceedings in the mutation any close relation of the vendor-lady was associated. It is also settled principle of law that mere reliance on mutation for certain transaction would not be sufficient for proof of the transaction as covered by the mutation unless some cogent evidence proving the transaction itself irrespective of the mutation is examined in the Court. As the above requirements laid down from time to time for a transaction with Pardahnasheen lady have not been satisfied in this case, therefore, the Appellate and the High Court were correct to refuse to enforce such a transaction and that rightly concurred in the dismissal of the suit"
' In Ghulam Muhammad v. Farooq Ahmed and others (2002 SCM R 1801), it was reiterated by this Court that in the case of illiterate Pardahnasheen lady, Court should be very careful in recording findings as to the execution of any agreement by her.
17. The upshot of the above discussion is that the petitioners have failed to point out any misreading and non-reading of the evidence on part of the learned Courts below. Both the impugned judgments being unexceptionable, there is no merit in the revision petition, which is hereby dismissed in limine.