RASAAL HASAN SYED, J.---This judgment will decide civil revision, which impugns the judgment and decree dated 08.4.2014 of the learned Addl. District Judge, Daska in consequence whereof the appeal was allowed, the judgment and decree of the learned trial court was set aside and suit of the petitioner was dismissed.
2. Brief facts from which this petition arises are that the petitioner filed a suit for specific performance of agreement to sell dated 24.4.2004, and for cancellation of mutation No. 918 dated 06.4.2006 in favour of respondent No. 2, inter alia claiming that the respondent No.1 allegedly agreed to sell land measuring 33 kanals 03 marlas, at Mauza Chhanga, Tehsil Daska, District Sialkot, in his favour for a price of Rs.600,000/-, allegedly received Rs.300,000/- as earnest money, and executed agreement to sell dated 24.4.2004. The petitioner further alleged that on 18.12.2004, at the request of respondent, a sum of Rs.130,000/- was paid and in this way, total sum of Rs.430,000/- was received by respondent No. 1. It was stated that the petitioner requested the respondent No.1 for execution of the sale deed on receiving the balance price of Rs.170,000/- which she avoided on different pretexts, and later it transpired that she had transferred the property through oral gift vide' mutation No. 918 dated 6.4.2006, in favour of her daughter respondent No.2.
The petitioner therefore sought enforcement of the agreement to sell and cancellation of the, mutation.
3. The suit was resisted by the respondents, who denied the existence or execution of any agreement to sell, termed the same as forged, fraudulent and fictitious document, and maintained that the respondent No.1 had filed application for partition against petitioner's father Muhammad Din and uncle Abdur Rasheed, and that the suit was filed as counterblast. It was further claimed that the alleged thumb-impressions of respondent No.1 and her husband were forged; that no such document was in fact ever written on their instructions or executed by them; and, that no payment was ever received.
4. After recording evidence and hearing the parties, the learned Civil Judge on 02.7.2011 decreed the suit. Appeal filed by respondents was accepted by the learned Addl. District Judge Daska, District Sialkot, on 08.4.2014; in result the judgment of learned trial court was set aside and petitioner's suit was dismissed.
5. Learned counsel for the petitioner argued that the learned Civil Judge on careful scrutiny of the evidence, accepted the plea in favor of the agreement to sell and granted decree for the enforcement thereof; but in appeal the learned Addl. District Judge misread the record, and disturbed the finding of facts. It was added that the marginal witnesses of the document had appeared in the witness-box and that there was sufficient evidence to prove that the respondent No.1 had voluntarily agreed to alienate her land and that she received the earnest money including the subsequent payment as claimed in the plaint and that the execution was denied with mala fide. Learned counsel finally submitted that the production of stamp-vendor was not required, and that the learned appellate court was incorrectly influenced his non-appearance, and reversed the findings on erroneous assumptions.
6. Responding to the arguments, learned counsel for the respondents submitted that the learned Addl. District Judge made an in-depth scrutiny of the evidence and concluded that the existence of the agreement to sell or the execution of the document was not proved, and that the findings of appellate court did not suffer from any error of law and further that the learned Civil Judge had overlooked the material contradictions and legal flaws in the pleadings and evidence of the petitioner, therefore, the judgment rendered by him could not sustain. Finally it was argued that no significant misreading or non-reading of the evidence was pointed out by the other side and that the first appellate court was legally competent to re-appraise the entire evidence and reach final conclusions which was so done, hence no exception could be taken thereto inasmuch as the conclusion of appellate court, are based on true appreciation of evidence on record.
7. The respective submissions from both sides have been considered with reference to the evidence on record. The case set up by the petitioner was that the respondent No.1 who is an illiterate lady, allegedly purchased the stamp paper, an agreement was drawn thereon and that she allegedly affixed her thumb-impression to the agreement to sell. The execution was witnessed by her husband and also that the notary public had attested and identified the agreement to sell.
These pleas of the petitioner were refuted by the respondents who had emphatically stated that she never purchased the stamp paper; never visited the stamp vendor; never thumb-marked any agreement; never agreed to sell her property nor ever received the alleged payments claimed by the petitioner. She also vehemently denied that her husband had signed as a witness and maintained that the alleged thumb-impression and signature of the respondent and her husband were forged.
8. It was thus a case in which a document was claimed to have been executed by an illiterate lady where the law puts heavy onus on the beneficiary to prove from beginning to end, that the lady was a privy to a document; and that she did execute the same with free-will and volition, she had independent advice of some male member, and in this case her husband could be the most relevant person. Reference can be made to the rule given in "Arshad Khan v. Mst. Resham Jan and others" (2005 SCM R 1859) where the August Supreme Court observed that it is "...settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it is pertinent to mentioned here that 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 a position of active confidence. This 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 convicting evidence...". In "Taleh Bibi and others v. Mst. Maqsooda Bibi and others"
(1997 SCM R 459) the August Supreme Court was pleased to observe that the law "... regarding the disposition of property by Pardanashin ladies which is equally applicable to illiterate and ignorant women is fairly well-settled that it is for the person claiming the benefit of such disposition to establish affirmatively by the strongest and most satisfactory evidence that the transaction was real, genuine and bona fide...". In "Mian Allah Ditta through LRs. v. Mst. Sakina Bibi and others" (2013 SCM R 868) it was ruled by the August Supreme Court that "...the contention that the general power of attorney was given by the respondent/ plaintiff' not to a stranger but to her own son-in-law and that she was not a "paradanashin lady" for which the courts of law have provided protection is not tenable in the facts and circumstances of the instant case first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerable. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation..."
9. In this case the petitioner claimed that Muhammad Ishaq, the husband of the respondent, allegedly acted as her witness and that Ch. Muhammad Rasheed Khokhar, Advocate, had allegedly attested the document. In view of the petitioner's own stance, the testimonies of Muhammad Eshaq, the husband of respondent No.1, and Ch. Muhammad Rasheed Khokhar, Advocate, were obviously very material. Muhammad Ehsaq appeared as DW.3, deposed on oath that his wife respondent No.1 did not ever agree to sell the suit land in favour of the petitioner, she never executed the alleged agreement to sell Ex. P1, the alleged thumb impression claimed to be of his wife's were forged, his own alleged thumb-impression on the alleged agreement was forged, and that the document was a result of fraud and forgery. He was cross-examined in-depth but neither any contradiction could be extracted, nor his credibility could be shaken. It is important to note that D.W-3 was suggested in cross-examination that Mian Bashir, Advocate, had allegedly made him to read Ex.P1 which suggestion was replied as incorrect. Moreover Mian Bashir Ahmad, Advocate, has given his own affidavit which was produced as Ex.D 1 and wherein he has deposed that he had not drafted the alleged agreement to sell dated 24.4.2004 nor was it entered in his register and that Mst. Rasheeda Bibi, respondent No.1, never came to him for the drafting of the document nor she ever thumb-marked the same in his presence.
10. It is also noteworthy that respondent No.1 appeared as her own witness as D.W.2 and deposed that she had never agreed to sell the property and that she never thumb-marked Ex.P1 or Ex.P2 nor she ever received any payment from the petitioner; she vehemently stated that the two documents were a result of fraud and forgery and that Daulat Ali, P.W-3, had never visited her house for the drafting of Ex.P2 nor she had ever thumb-marked the disputed documents Ex.P1 and Ex. P2. Further deposed that she had got registered a criminal case, against the petitioner and witnesses to Ex.P1 and Ex.P2, in which they were arrested, and later bailed out. So much so that Ch. Muhammad Rasheed Khokhar, Advocate, Daska, also appeared as DW.1 and in his statement deposed that the agreement to sell Ex.P1 was never presented before him. He never signed or affixed his stamp and the alleged stamp as also the signature were forged and that he had confirmed all these facts in his affidavit Ex.D3, which he admitted to have been signed and executed, and the contents whereof he verified and confirmed.
11. There appears to be a considerable weight in the stance of respondent that petitioner's father Muhammad Din and uncle Abdur Rasheed, being cultivators of the land on patta, were obviously disinclined to vacate it and in this back drop the alleged agreement to sell was fabricated, and their dear and close ones were made marginal witnesses to bear out the concocted story of sale.
Be that as it may, there are lot of contradictions in the deposition of the two witnesses which were duly noted by the learned Addl. District Judge. It is strange that the petitioner never attempted to get the alleged thumb-impression and the signatures on Ex.P1 and Ex.P2 verified from the expert/forensic laboratory.
12. The fact that the petitioner who claimed to be beneficiary of the document and pleaded the execution thereof did not make any effort of getting the expert report which raises adverse inference against him and C it cannot be ruled out that he was assured of having adverse report against him.
13.The learned Addl. District Judge on detailed consideration of the entire evidence from both sides, observed that the execution of the.. agreement was disputed, the respondent had denied having ever purchased the stamp paper or prepared any agreement or thumb-marked the same, she had also disputed the thumb-impression of her husband,. the petitioner did not produce the stamp register nor did he produce the stamp vendor, Ch. Muhammad Aslam, whose evidence was very material. It was also taken note of that notary public, Ch. Rasheed Ahmad Khokhar, who was alleged by the respondent to have attested the document, also appeared in the witness-box and stated on oath that his signature and stamp were forged, and that he never attested the document nor it was ever presented before him. It was observed that Muhammad Eshaq the husband of the respondent also appeared in the witness box and vehemently denied the agreement as also his signatures on Ex.P1.
14. Comparative examination of the evidence on record compels the ineluctable conclusion that the judgment recorded in appeal is predicated on correct analysis of evidence on record, while the judgment of learned Civil Judge was rested on misreading and misconstruction of evidentiary material, apart from being based on perversity of reasoning, and therefore the learned Addl.
District. Judge had rightly interfered with and set aside the same.
15. There being no error of law in the impugned judgment of appellate court, case for interference in revisional jurisdictional is not made out. In result this revision petition fails and is accordingly dismissed.