' SHAHID KARIM, J. --- This application under Section 115 of Code of Civil Procedure, 1908 (CPC) by way of revision petition is directed against the judgment and decree of Addl. District Judge, Lodhran dated 26.4.2004. By the impugned judgment and decree, the appeal of the respondent No, 1 against the judgment and decree of the Civil Judge, Lodhran dated 19.4.2002 was accepted.
2. The historical facts of the case are that Muhammad Rafiq died in the year 1990. Inheritance mutation No 111 was sanctioned on 06.06.1992 in respect of the property of Muhammad Ratio. This was sanctioned in favour of Rehmat Mai (widow of Muhammad Rafiq) and Mst. Farzana, respondent No, 1 (daughter of Muhammad Rafiq). Rehmat Mai sold her share to Muhammad Sadiq and mutation No, 130, dated 29.6.1992 was sanctioned. Mst. Farzana challenged this in the Court and the suit was decreed on 28.4.1994 and she was declared as the owner of 49-Kanalas, 8-Marlas.
The respondent No, 1/plaintiff filed a suit for declaration and possession with regard to 49-Kanals, 8-Marlas situated in Khavit No, 28, Chak No, 295/WP, Tehsil Dunyapur. It was averred in the plaint that the defendant No, 5/petitioner had no concern or right over the disputed property and that the Mutation No, 1,90, dated 28.11.1994 was void and ineffective against the rights of the respondent No, 1/plaintiff. It was alleged in the plaint that through connivance, fraud and mala fide the said mutation. Had been got sanctioned and in exchange for the land of the respondent No, 1/plaintiff mutation- No, 1766, dated 16.11.1994 had been sanctioned in favour of the respondent No, 1/plaintiff and situated at Mauza Motha North, Tehsil Jalalpur Pir Wala, Distt Multan It was further alleged. That the respondent No, 1/plaintiff not executed (any exchange of land and at the time that the purported transaction took place, she was a minor and was a student: Also that a case of abduction had filed against her husband Muhammad Nawaz which was later on cancelled. Further that a writ petition W.P. No, 3656 of 1994 was filed in the High Court on which on 18.3.1994 it was ordered that the respondent No, 1/plaintiff be handed over in the custody of her mother who was in league with the defendants No, 5 and 6/petitioners and so from 188.94 to 20.11.1994, the respondent No, 1/plaintiff remained in the custody of the petitioners/defendants No, 5 and 6. Later on through another Constitutional petition she was recovered from the unlawful custody of defendants No, 5 and 6/petitioners and her custody was handed over to her husband Muhammad Nawaz. Soon thereafter, she wrote to the Naib Tehsildar by a telegram that no mutation in respect of her property be sanctioned. The entire basis of the plaint is that the impugned mutations had been sanctioned during the period between 18.8.1994 to 20.11.1994 while she: was in the custody of the defendants/petitioners and that her thumb impressions if any had been obtained on blank papers.
In short, she denied the execution of any deed of exchange to have taken place between her and the defendants/petitioners.
3. Written statement was filed by the defendants/petitioners. The contents of the plaint were denied and it was retorted that the defendant No, 5 was owner in possession of the suit property. It was further retorted in the written statement that the petitioners exchanged the suit property with the plaintiff/respondent No, 1 with her free will and in exchange got the land in Mauza Mautha North. Rappat Roznamcha Waqiati was entered by Patwari on the direction of respondent No, 1/plaintiff and she also made a statement before revenue officer at the time of attestation of the impugned mutation.
4. Following issues were framed by the Trial Court--
(1) Whether Mst. Farzana, the plaintiff is owner of the suit land measuring 49 Kanals fully described in the heading of the plaint and the defendant No, 5 has no concern with it whatsoever? OPP.
(2) If issue No, 1 above is proved then whether the exchange mutation No, 190, dated 28.11.1994 attested by defendant No, 4 and order dated 28.2.1995 by defendant No, 3 and order of revision dated 17.11.1996 passed by defendant No, 2 are illegal, ineffective, inoperative qua the rights of the plaintiffs as per ground mentioned in para No, 8 of the plaint? OPP.
(3) Whether suit of the plaintiff is illegally and factually not maintainable? OPD. 5&6.
(4) Whether the plaintiff is estopped by her own words and conduct to institute this suit? OPD-5 & 6.
(5) Whether the plaintiff is bereft of cause of action and locus standi to institute this suit? If so its effect? OPD.
(6) Whether the plaintiff's suit is mala fide and deserved to be dismissed with costs, for the reasons recorded in the written statement? OPD.
(6-A) Whether issues No, 1 and 2 are proved and issues No, 3 to 6 are not proved .Whether the plaintiff is entitled to a decree for possession of the property in dispute? OPP.
(6-8) Whether the plaintiff was minor and not competent to exchange the property through impugned mutation? OPP.
(6-C) Whether the plaintiff was estopped to urge this ground owing to her own conduct as stated in the written statement, so amended? OPD 5 & 6.
(7) Relief.
5. The Addl. District Judge, Lodhran accepted the appeal filed by the respondent No, 1/plaintiff and decreed the suit. In doing so, the Addl. District Judge upset the findings of the Trial Court on issues No, 1, 2, 6-A and 6-B as having been decided unlawfully and in contravention of the facts of the case.
6. I have perused the judgments of the courts below and do not find any material irregularity in the judgment of the Addl. District Judge, Lodhran who proceeded to set aside the judgment and decree of the Trial Court on cogent and valid reasons.
7. Learned counsel for the petitioners/defendants has argued that the Judgment and decree of the courts below are at variance. Mst. Farzana, respondent No, 1 did not appear as a witness and intact, her husband appeared as special attorney on her behalf. During the hearing of the appeal, she made an application for appearing as a Witness which was turned down by the Appellate Court On the ground that her Statement had been Submitted by her husband as special attorney and thus there was no need for her to appear as a witness. Learned counsel further submits that the judgment and decree of lower Appellate Court is not in consonance with the Order XLI Rule 31 CPC as the lower Appellate Court has failed to discuss the Individual issues and to render a finding thereupon and thus there has been a gross misreading of the evidence by the Addl. District Judge.
Lastly the learned counsel submitted that the onus of proof was on the respondent No.1/plaintiff, however, the Addl. District Judge has not discussed the witnesses produced by the plaintiff and has rendered his finding merely by pointing out discrepancies in the statements of the petitioners/defendants witnesses.
8. On the contrary, learned counsel for the respondents submits that the alleged transaction was oral and, therefore it was obligatory that all facts regarding date and time of transaction etc. Should have been mentioned in the written statement. The written statement is devoid of material facts and thus the alleged transaction has not been brought home. According to the learned counsel the thumb impressions have been obtained by coercion and has gone through the history of the case which is replete with previous litigation and animosity between the parties to the suit.
9. It is admitted on all hands that the alleged transaction of exchange was oral. Since the petitioner No, 1/defendant was the beneficiary of the transaction, it was thus obligatory upon the said petitioner to have mentioned all the material facts relating to the transaction in the written statement itself. It is also not denied between the parties that the parties have been engaged in previous litigation. That litigation has been produced, in documentary evidence as Ex.P.20 to Ex.P.25 which are orders of the Lahore High Court, Multan Bench on petitions of habeas corpus filed by the respondent No, 1/plaintiff. The fact is also not denied and no evidence has been brought forth that at the time of alleged transaction the respondent No, 1/plaintiff was in the custody of the petitioners/defendants and it was only on a petition of habeas corpus that her custody was delivered to her husband. No evidence has been produced the petitioners/defendant to the effect that the possession of the land in exchange, was delivered to the respondent No, 1/plaintiff.
10. The parties have produced, their respective evidence. The mutation No, 190, dated 18.11.1994 is Ex.P.14 and Ex.D.4. According to Jamabandi Ex.P.1, the respondent No, 1/plaintiff is recorded as owner in column No, III of land measuring 49K-8M through Muhammad sharer/tenant while in its last column oral exchange of mutation No, 190 is mentioned with red ink. According to Khasra Gardawri Ex.P.2 to Ex.P.3 and Ex.P.4, possession of Muhammad Siddiq has been recorded however according to Ex.P.5 the suit land is stated exchange vide mutation No, 1766 attested on 16.11.1994 on the basis of Rappat Roznamcha Waqiati No, 81, dated 25.10.1994. It is an admitted fact that contesting defendant No, 5 Noor Muhammad did not appear in the Court as a witness and examined defendant No, 6 as his special attorney. The Trial Court did not take into consideration the evidence led by the respondent No, 1/plaintiff. It was categorically asserted in the plaint that impugned mutations were the result of fraud, coercion and undue influence and these elements can easily be discerned from the evidence produced by the respondent No, 1/plaintiff with regard to the previous litigation, a number of habeas corpus petitions which were filed and which led ultimately to her custody being handed over to her husband. The lower Appellate Court has taken into consideration the term "exchange" as defined under Section 118 of the Transfer of Property Act, 1882 and has weighed the evidence led by the parties on the touchstone of the said definition. It has rightly been concluded that the exchanged properties are situated in different districts, the respondent No, 1/plaintiff's land was situated in Chak No, 285/VVP Dunyapur whereas the land of the defendant No, 5/petitioner No, 1 was situated in Mauza Mautha North, Tehsil Jalalpur Pir Wala, Distt. Multan. The first mutation which was sanctioned was mutation No, 1766 and is dated 16.11.1994. The petitioners/defendants produced Muhammad Ramzan Patwari, Mazhar Ali Shehzad Tehsildar, Faiz Rasool Lumberdar and Muhammad Arif as DW.2, DW.6, DW.9 and DW.10 respectively.
11. The entire evidence produced by the petitioners/defendants has to be analysed on the touchstone of the principle that in case the transaction involved "Parda Nasheen" ladies, the superior courts have laid down strict rules and the evidence has to be analyzed on the pedestal of the strict rules of proof which have been so laid down. The observations made by the Supreme Court of Pakistan in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) should be the starting point in any such discussion. It was observed that:- " Two, even if all the conditions for a Valid transfer under the existing set and systems of laws, after the due accrual of inheritance are satisfied, the protection afforded by Section 16 of the Contract Act against undue influence, to Parda nashin ladies and others 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 Be gum v. Mst. Murad Be gum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioners even then would have failed on account of undue influence, the presumptions regarding which in respondent's favour, have not been rebutted. This and other issues discussed and answered in this summarization will, it is clarified, in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality, which would remain the main ratio in the case. "
' In Abdul Hameed through L.Rs, and others v. Shamasuddin and others (PLD 2008 SC 140), the Supreme Court of Pakistan encapsulated the nub of the principle in the following words:-- "8. This is established law that in case in which the executant of the document is a pardanasheen or illiterate woman, notwithstanding the fact that she is known to the vendee or is a stranger to him, if she denies the execution of document, the party placing reliance on such document must prove its execution and the burden of proving the negative fact is shifted to such a woman, executant, if the initial burden of proving the genuineness of document is discharged. The identification of an illiterate or pardanasheen woman, vendor, must be established beyond doubt and Court must be vigilant in taking extra care to ascertain the genuineness of a registered document which is alleged to have been executed by an illiterate or ignorant woman or a pardanasheen lady. This Court in Khawas Khan v. Shabbir Hussain Shah (2004 SCMR 1259) has held as under:- "In case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution of said document that the pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. In case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed. "
12. A perusal of the statements of the witnesses of the defendants who are mostly the revenue officers reveals that their statements are inconsistent and cut across each other on material points. The delivery of the possession of the land situated in Mauza Mautha North to the respondent No, 1/plaintiff has not been proved by the petitioners/defendants. It is reiterated that the beneficiaries of the impugned mutations were the petitioners/defendants and they, were obligated to prove if the possession of the land in exchange was delivered to the respondent- No, 1/plaintiff at the time of attestation of the impugned mutation. However. From the statements of the witnesses produced by the petitioners/defendants, it cannot be ascertained with any degree or certainty that The possession was so delivered. Moreover, the copy of the register Khasra Gardawri has also not been produced. It has rightly been noticed in the findings of the lower Appellate Court that the defendants ought to have. Produced. Abdul Majeed, Afzal and Faqir. Bukhsh their evidence. To prove that Afzal was the lessee of respondent No, 1/plaintiff and that Faqir Bukhsh was the tenant of respondent No, 1/plaintiff. There are contradictions.' in the statements of Mazhar All Shehzad, Tehsildar DW.6 who has stated that he sanctioned the mutation Ex.D.1 in primary school Mauza Mautha North while DW.10 Muhammad Arif has stated in the cross-examination that when he went to Patwarkhana from his house after being called by Chokidar, Lumberdar, Tehsildar, Noor Muhammad and Allah Ditta were present alongwith other people who were not known to him. The lower Appellate Court has rightly concluded from these facts that the witnesses were not certain about place of attestation of impugned mutation. Another important factor which has weighed with the lower Appellate Court is that the documents relating to Part Sarkar were not produced in evidence whereas only documents relating to Part Patwar were brought on record. Part Patwar, as rightly held by the lower Appellate Court, is an important document and relates to the proceedings taken by the revenue officer and conclusively determined the fact of transaction to take place as well as the proceedings which precede the said transaction, being sanctioned in the name of the beneficiary. Moreover, the thumb impressions of the respondent No, 1/plaintiff were only taken on Part Patwar and not on Part Sarkar.
13. As regards mutation No, 190, from the evidence brought on record it is evident that Part Patwar and the mutation were sanctioned on the same day 8.11.1994. Manzar Hafeez DW.7 has mentioned in his order dated 8.11.1994 that mutation No, 190 Ex.D.6 was produced at the next visit after payments of dues and comparison by Qanungo/Gardawar. DW.7 has stated in his cross- examination that he sanctioned the mutation in Jalsa-i-Aam whereas Muhammad Tufail stated that the mutation was sanctioned at the Dera of Ali Hassan Lumberdar. It follows ineluctably that the mutation was not sanctioned in a Jalsa-i-Aam or at a public place. Once again, the evidence of the defendants is silent regarding the delivery of possession by Mst. Farzana in favour of Noor Muhammad. This clearly shows that at the time of sanction of the alleged mutation, possession was not delivered by Mst. Farzana to Noor Muhammad. The evidence of DW.7 Manzar Hafeez Naib Tehsildar is also important, in that, he has not stated in his examination-in-chief that on 8.11.1994 he recorded the statements of the parties regarding exchange of land with each other. Rather he has simply stated that on 18.11.1994 the mutation was produced before him which he sanctioned in favour of Noor Muhammad but he has not explained or elaborated upon the fact that he recorded the statements of Mst. Farzana and Noor Muhammad on 8.11.1994.
14. As stated above, from the documentary evidence produced by the parties it is evident that provisions of Section 42 of the Land Revenue Act, 1967 have not been complied with. The said provisions have to be read in conjunction with the principle which has been noticed above with regard to the respondent No, 1/plaintiff being a female and with regard to any transaction involving woman, the superior courts have laid down stringent criteria which has to be followed for proving a transaction. Section 42 of the Land Revenue Act, 1967 is reproduced as under:- "42. Making of that part of periodical records which relates to landowners.
(1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the patwari of the estate, who shall---
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report within a week of its receipt by him, to the Union Committee, town Committee or Union Council within which the estate is situated.
(2) If the person acquiring the right is a minor, or is otherwise unable to report his guardian or other person having charge of his property shall make the report to the patwari.
(3) The patwari shall enter in his register of mutations every report made to him under sub-section
(1) or sub-section (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those sub- sections and has not been so made.
(4) The report made to the patwari under sub-section (1) of sub-section (2) or recorded by him under sub-section (3) shall be displayed in such manner as may be prescribed.
(5) If the patwari fails to record or to display a report made to him under sub-section (1) or subsection (2), the person making the report may make the report in writing, to the Revenue Officer concerned and the "Chairman of the Union Committee, Town Committee or Union Council" in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.
(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub-sections, report should have been made to the patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under sub-section
(6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons; preferably from lambardar or members of "Zila Council, Tehsil Council or Town Council" or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer on the register of mutations.
(8) An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.
(9) Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
(10) If within three months of the making of a report of the acquisition of a right under sub-section
(1) or sub-section (2), or the recording by the patwari of an entry in the Roznamcha under sub- section (3) respecting the acquisition of any right, no order is made by the Revenue Officer under sub-section (6), he shall report the cause of delay to the Collector in the prescribed manner.
(11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under sub-section (6), to the person whose right is acquired, and also to the "Office of the Union Administration" in which the estate is situated. "
15. The documentary evidence which has been put forth does not establish that the various requirements of Section 42 of the Act, 1967 were complied with in the instant case. Ex.D.1, Ex.D.2 and Ex.D.3 are important documents which reflect the alleged transaction to have taken place. These documents are the documents relating to Part Patwar and not Part Sarkar. These are merely proceedings taken by the Patwari in sanctioning the mutations which are the subject-matter of the suit. They do not comply with the requirements of Section 42 of the Act, 1967 nor do they demonstrate that the transactions were carried out by the free will of respondent No, 1/plaintiff or that the proceedings regarding her identification and witnessing of the transactions also took place. Section 42 of the Act, 1967 mandates that any person acquiring by inheritance, purchase or otherwise any right in an estate as a landowner shall within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate who shall record such report in the Roznamcha to be maintained in the prescribed manner. The Patwari shall enter the report so made to him in his register of mutations. According to the sub-section (4) of Section 42 of the Act, 1967, the report made to the Patwari and recorded by him shall be displayed in such manner as may be prescribed. The provisions of sub-sections (6), (7), (8) are important and lay down that revenue officer shall inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid of which a report should have been made to the Patwari and in each case shall make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. By sub-section (7), the revenue officer shall make the order under sub- section (6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons preferably from Lumberdar or members of Zila Council concerned and whose signatures or thumb impressions shall be obtained by the revenue officer on the register of mutations. An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry relates. It, therefore, follows indubitably from a reading of the provisions of Section 42 of the Act, 1967 that it is an obligation cast upon the revenue officer to conduct an inquiry relating to the subject-matter of the order made in the entries in the register of mutations. The said inquiry shall be conducted in common assembly and then an order shall be made by the revenue officer with regard to the acquisition of any right in respect of which the inquiry has been held and an entry shall be made in the periodical' record. More importantly, by sub-section (11), the revenue officer shall send or cause to be sent the gist of an order made by him under sub-section (6) to the person whose right is acquired and also to the office of the Union Administration in which the estate is situated. A reading of Section 42 makes it is clear that the procedure has to be strictly followed and in particular with regard to Parda Nasheen ladies. It is clear that in the instant case, no evidence has been brought forth with regard to the proceedings taken by the revenue officer in respect of the exchange as well as transaction of exchange which was alleged to have taken place. The alleged transaction of exchange, therefore, cannot be upheld and sustained on this ground alone.
16. Moreover, as brought forth above and as elaborately dealt with by the lower Appellate Court, there is a history of litigation between the parties and it has been held as a fact that the impugned transactions of sanctioning of mutations came into existence between the period during which the respondent No, 1/plaintiff remained in the custody of her mother and other defendants/petitioner No,
1. It was also concluded as a fact that respondent No, 1/plaintiff was not residing with her mother and other defendants/petitioners of her free will and was given in custody by the orders of the High Court. The mother Mst. Farzana appeared in the witness box as DW.15 which clearly shows that she was siding with the petitioners/defendants.
17. I do not find any infirmity in the findings of lower Appellate Court on the issues No, 1, 2, 6-A and 6- B. In view of the findings on the said issues, the rest of the issues are not important to be dilated upon. As a result of the above, the revision petition is 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.