1. MUHAMMAD SALEEM JESSAR, J.---Through this Civil Revision Application the applicant has challenged Judgment and Decree dated 17.09.2016 passed in Civil Appeal No.36 of 2014 whereby he upheld Judgment dated 29.03.2014 and Decree dated 01.04.2014 passed by learned Senior Civil Judge, Kandiaro whereby he decreed F.C. Suit No.42/2012 (Re: Mst. Rehana Bibi v. Mujeeb-ur-Rahman and others) filed by respondent No.1, Mst. Rehana Bibi.
2. Precisely, the facts giving rise to the filing of this civil revision are; that respondent No. 1/plaintiff filed suit for declaration, cancellation of registered sale deed, revenue entry, separate possession, mesne profits and permanent injunction claiming to be lawful owner of the agricultural land viz. 07-14 acres from different survey numbers situated in Deh Pirwatio, Taluka Mehrabpur on the basis of entry of her name in the revenue record by way of inheritance from her father. According to her, she was residing with her brother/applicant even after marriage as her husband was serving in Pak Army. However, after retirement of her husband, she started to reside in the house of her husband. She further stated that she was getting her due share in the land in question from her brother viz. the present applicant. However, then he stopped paying her due share, therefore she moved an application to the Mukhtiarkar who called the applicant/ defendant No.1. The applicant/respondent No.1 appeared before the Mukhtiar and stated to have purchased the land from the plaintiff/respondent No.1 and her mother through registered sale deed, hence Mukhtiarkar issued Robkari on 20.2.2012. She further stated that she had not executed the said sale deed and the same was a false, fabricated and fraudulent document. She, therefore, tiled suit wherein she prayed for declaration to the effect that she has not sold out her share and that the aforesaid sale deed was prepared by defendant fraudulently in collusion with revenue staff.
3. She also prayed for separate possession, mesne profits and permanent injunction restraining the applicant/defendant No.1 from selling, alienating, mortgaging or leasing out the suit land to any third party directly or indirectly either himself or through his agents etc. in any manner whatsoever.
4. After filing of suit, process was issued to defendants. On 08.12.2002 defendant No.1 filed his written statement in which he denied all the allegations levelled in the plaint by the plaintiff. He submitted that plaintiff never remained in joint possession of the suit land. He further submitted that plaintiff as well as her mother had sold out their respective shares to him and executed joint registered sale deed after receiving amount of sale consideration and delivered the possession of the suit land to defendant No.1. According to him, due to domestic dispute the plaintiff has filed this suit. He further submitted that defendant No.1 is lawful owner of the suit property and plaintiff is trying to pressurize him in order to get some more amount. Defendants Nos.2 to 7 were declared ex parte vide order dated 08.12.2013.
5. Learned trial court after framing the issues, recording of evidence of the parties and hearing counsel for the parties, decreed the suit vide aforesaid Judgment and Decree against which the applicant/defendant No.1 filed Civil Appeal which was dismissed by the appellate Court, hence this civil revision application.
6. I have heard the arguments advanced by learned counsel for the parties and perused the material available on the record. Learned counsel for the applicant contended that the two courts below erred in passing the impugned judgments which are not sustainable in law and on facts. He further contended that the Appellate Court has not appreciated properly the evidence adduced by the parties and has passed the impugned judgment in a hasty and mechanical manner. He further contended that the judgments of the two courts below suffer from misreading and non-reading of evidence. He further contended that a valid and legal sale deed was executed in favour of the applicant, however the two courts below did not take into consideration that the documentary evidence cannot be rebutted by oral evidence. According to him, both the courts below have committed material illegalities and irregularities while passing the impugned judgments. He further contended that there is violation of Order XX, Rule 5, C.P.C. by the trial court, so also of Order XLI, Rule 31, C.P.C. by the Appellate Court. He further contended that there is violation of Order VI, Rule 2, C.P.C., so also Articles 117 and 118 of Qanun-e-Shahadat Order, 1984. He prayed for allowing the revision application and setting aside the impugned judgments of the two courts below. In support of his contentions he relied upon case-law reported in 2009 SCMR 371, 2008 SCMR 571, 2016 MLD 655 [Peshawar] and 2013 SCMR 299.
7. Conversely, learned counsel for respondent No.1/plaintiff, while supporting the impugned judgments, contended that the findings of the two courts below are based on sound and cogent reasons. According to him, the concurrent findings of the courts below cannot be interfered with by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. He contended that the applicant by fraudulently means prepared the sale deed and when respondent No.1, who is an illiterate lady, came to know about such fraud, she moved application before the concerned Mukhtiarkar and on having the knowledge about the sale deed, she filed the suit. He contended that the applicant himself did not appear in the witness box as he was an absconder in a murder case and his attorney / wife admitted that the said sale deed was not signed in her presence. Witnesses of the applicant also made similar admission. He further contended that no application was moved by the applicant for calling the Registrar or any other concerned official in order to prove the execution of the sale deed, nor even the attesting witnesses of the said sale deed were got examined by him. He prayed for dismissal of the revision application and upholding the impugned judgments. In support of his contentions, he relied upon the case-law reported in 2016 MLD 370 [Lahore], 2015 SCMR 1704, 2016 SCMR 862 and 2004 SCMR 877.
8. On the other hand, learned State Counsel contended that it is a fit case for remand as the point of limitation has not been properly dealt with by the trial Court, so also there is violation of Order XLI, Rule 31, C.P.C. by. the Appellate Court.
9. Before touching the merits of the case, it would be appropriate to deal with the legal aspects of the case regarding maintainability of instant Civil Revision Application.
10. In fact, the revisional jurisdiction of this Court under section 115, C.P.C. has very limited scope, more particularly. in a case where there are concurrent findings of the two courts below. Such jurisdiction can be exercised only in those cases where subordinate court has exceeded its jurisdiction or has declined to exercise its jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. In the case of Haji Mohammad Din v. Malik Mohammad Abdullah reported in PLD 1994 Supreme Court 291, Honourable Supreme Court observed as under: "It is well settled law that a concurrent finding of fact by two courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of revisional jurisdiction under section 115 C.P.C....... The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is still narrower. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case."
11. Similar view was taken by the Lahore High Court in the case of Shahbaz Rasool and 4 others v. Aamir lmran and 7 others (2011 CLC 1941).
12. Yet there is another legal aspect of the case. From the perusal of section 115, C.P.C. it transpires that the remedy of filing civil revision before this Court can be availed in case no appeal lies against the order which has been impugned in the revision application. For the sake of convenience Section 115(1), C.P.C., is reproduced as under: "115.-1[(1 )} The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears;
(a) to have exercised a jurisdic tion not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit;"
13. In the instant case remedy by way of filing Second Appeal under section 100, C.P.C. was available to the applicant, however the applicant instead of availing that remedy, has filed civil revision. It may be observed that Section 100, C.P.C. provides that second appeal could be filed when the decision of Lower Court is contrary to law or usage having the force of law; when some material issue of law is not decided; and when there is substantial error or procedural defect which resulted in erroneous or defective decision. In the instant case the grounds on which the applicant has filed instant civil revision are covered by the grounds on which a Second Appeal under section 100, C.P.C. could be filed, therefore it was incumbent upon the applicant to prefer Second Appeal under section 100, C.P.C. instead of preferring civil revision application under section 115, C.P.C., particularly when it has been specifically provided in Section 115, C.P.C. that the civil revision could be filed only when no appeal lies against the order proposed to be assailed. From the perusal of the grounds of the Revision Application and the arguments. advanced during the course of hearing of revision application it seems that the applicant has raised the grounds which fall under the purview of section 100, C.P.C. For instance; in para 10 of the Grounds of revision application it is mentioned that the findings of the two courts below are 'contrary to law' which finds mention in clause (a) of Section 100, C.P.C. Similarly, Ground No.11 of the revision application says, "That the learned trial Court as well as appellate Court did not consider the point of limitation Such ground is mentioned in clause (b) of Section 100 C.P.C. Likewise, in Ground No.12 it is mentioned."...this Honourable Court in Revision under section 115 of C.P.C. is all competent to dislodge such illegal and unlawful findings." which is covered by clause (a) of Section 100, C.P.C. i.e. "the decision being contrary to law or usage having the force of law".
14. In this connection reference may be made to a decision given by Honourable Supreme Court in the case of Cantonment Board Rawalpindi v. Mohammad Sharif through legal heirs reported in PLD 1995 SC 472 wherein it was held as under: "As regards the first contention, it may be observed that the judgment and decree dated 11.3.1960 passed by the learned District Judge Rawalpindi, was appealable, therefore no revision was competent before the learned High Court under section 115, C.P.C."
15. In another case reported as Sheikh Faqeer Mohammad v. Mohammad Din (1993 SCMR 1955), Honourable Supreme Court held as under: "Position thus crystallizes that the respondent had the right to file a second appeal and no revision lay under section 115 C.P.C. As held in PLD 1970 SC 506 a revision does not lie where the order is appealable with the District Court. Even in cases where second appeal lies, to the High Court revision will not be maintainable against that judgment and decree."
16. In view of above legal position instant Civil Revision Application is not maintainable on this score also, as the remedy of filing second appeal under section 100, C.P.C. was available to the applicant which was not exhausted and instead the applicant opted to prefer instant civil revision application.
17. Now adverting to the merits of the case, it seems that the main stress laid by the applicant is on the sale deed dated 25.4.2000 allegedly executed between the applicant Mujeeb-ur-Rahman on the one side and respondent No.1 Mst. Rehana Bibi and her mother on the other side. As it was the applicant who was relying upon the said sale deed in support of his ownership of the property in question, whereas respondent No.1 has vehemently denied the execution of such sale deed, rather according to her, it was forged and fabricated document, therefore the applicant was under a legal obligation to prove the execution and genuineness of the said sale deed. However, from the perusal of the record it appears that he did not appear in the witness box as he was stated to be an absconder in a murder case. Even his attorney namely Mst. Mehtab Khatoon, who is also his wife, during her cross-examination made following admissions which go in favour of respondent No.1/plaintiff: " I do not remember where the defendant No.1 had appointed me as attorney before which authority. I do not remember where transaction of suit land was made regarding sale of suit land. It is fact I was not available at the time of execution of registered sale deed so also transaction of suit land. It is fact that sale consideration of Rs.1,00,000/- was not paid in my presence. It is fact that after the death of father of plaintiff and defendant No.1 the suit land was not partitioned but it was joint property It is fact that witnesses had not signed in my presence before the Sub-Registrar.
18. Similarly, witness of the applicant/defendant No.1 namely Mushtaque Ali in his cross-examination admitted as under: "I do not know that where transaction of suit land was made in between parties but it was made in presence of Ghulam Mohammad Siyal and Haji Allah Rato Unnar at their village. It is fact that I was not present in the office of Sub-Registrar It is correct to suggest that consideration amount was not paid in my presence but I came to know through Ghulam Mohammad and Allah Rato about payment of sale consideration by the defendant No.1 to the plaintiff...It is fact that defendant No.1 is absconder in murder case."
19. Another witness of the applicant/defendant No.1 namely Mohammad Bux made following admissions: "It is fact that sale transaction and registration of sale deed was not executed in my presence do not know where the sale transaction was held in between plaintiff and defendant No.1.It is fact that defendant No.1 is absconder in murder case.... It is fact that the defendant No.1 had asked me through telephone to give evidence hence 1 have come today for evidence I do got know whether the plaintiff had put her signature on registered sale deed or not as I was not present there ..."
20. From above, it is clear that that the entire evidence adduced by the applicant/defendant No.1 is hearsay and neither his attorney/wife nor any of his witnesses claims to be present at the time of execution of the said sale deed. Needless to emphasize that the Superior Courts have held time and again that the hearsay evidence is not admissible in evidence. If any authority is needed, reference may be made to the case of Nazar Khan v. Mst.
21. Hassan Begum reported in 2013 MLD SC (AJ&K) 913. Besides, the applicant has even not examined any attesting witness of the sale deed which is required under the law, particularly when his attorney/wife and other witnesses have categorically admitted in their evidence that they were not present at the time of alleged transaction of sale or execution of the sale deed before the concerned Sub-Registrar. In this connection reference may be made to the case of Mohammad Yaqoob v. Naseer Hussain (PLD 1995 Lahore 395) wherein it was held that in order to prove a document the plaintiff has to call at least two attesting witnesses and if the document is not proved in accordance with law it has to be excluded from consideration. In the case reported as Mohammad Bashir v. Abdul Rauf (2011 MLD Lahore 96) it was held that where the execution of document was in issue, it was essential and mandatory upon the person who intends to derive benefit from such document to examine marginal witnesses. In this connection reference can also be made to the case reported as Ghulam Farid and another v. Sher Rehman through L.Rs. (2016 SCMR. 862).
22. In the instant case not only the attesting/marginal witnesses were not examined by the applicant, but even no application was made for calling the Sub-Registrar or any other concerned official in order to prove the execution of the sale deed. In this view of the matter, the applicant/defendant No.1 miserably failed to prove the execution and/or genuineness of the sale-deed relied upon by him. In this connection Article 129(g) of the Qanun-e-Shahadat Order, 1984 would also be attracted which provides that non-examination of essential witness gives an inference that in case such witness had been examined, he would have deposed against the applicant/defendant No.1.
23. There is yet another worth-importance point. By virtue of Article 127 of the Qanun-e-Shahadat, the Superior Courts have provided special protection to the illiterate and pardanashin ladies. In the instant case respondent No.1 is an illiterate lady residing in the atmosphere of village. She has categorically denied that she had ever executed any such document regarding sale of her share in the property in question to the applicant/defendant No. 1, thus in the circumstances, it was incumbent upon the applicant to have proved the execution and genuineness of the said sale deed which he has failed to do, as discussed above. In this connection reference may be made to the case of Baja and others v. Bakhan and others reported in (2015 SCMR 1704) wherein Honourable Supreme Court held as under: "The law, expounded by this Court in the case of Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859) in the context of Article 127 of the Qanun-e -Shahadat Order, 1984 is very clear, which grants special protection to illiterate and pardanashin ladies in such type of transactions."
24. In the case of Amirzada Khan and another v. Itbar Khan and others reported in 2001 SCMR 609 it was held by Honourable Supreme Court as under: "It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a 'Pardanasheen' 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 'Pardanasheen' lady and secondly, that she had complete knowledge and full understanding about the contents of the documents and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document 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 Pardanasheen 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 right concurred in the dismissal of the suit."
25. In the case of Ghulam Mohammad v. Farooq Ahmed and others reported in 2002 SCMR 1801, it was held. that in the case of illiterate Pardanisheen lady, Court should be very careful in recording findings as to the execution of any agreement by her.
26. Looking the instant case in the light of guidelines provided by the Superior Courts in the above cited and other like cases such as Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658), Mohammad Nazir v. Khurshid Begum (2005 SCMR 941) and Ghulam Farid and another v. Sher Rehman through LRs. (2016 SCMR 862), it seems that the preconditions/requirements relating to transaction with an illiterate and pardanasheen lady like respondent No.1, have not been fulfilled by the applicant, rather he has not been able to even prove execution and genuineness of the aforesaid sale deed, as detailed above.
27. So far as the point of limitation is concerned, it is now well settled that the period of limitation to challenge a fraudulent transaction runs from the date of its knowledge. If any authority is needed, reference may be made to case of Baja through L.Rs and others v. Mst. Bakhan and others reported in 2015 SCMR 1704. Besides, in the case of Ghulam Farid and another, supra, it was held as under.
28. "In the first instance it may be pointed out, without any fear of denial, that fraud vitiates every solemn transaction and Court of law shall, in no eventuality, endorse and perpetuate a fraud once it is proved to have been committed. Any transaction, which is the result of misrepresen tation, is not protected on the ground of period of limitation."
29. In the instant case it has come in evidence of respondent No.1, Mst. Rehana Yasmeen, that on the refusal of the applicant to pay her share in the cotton crop in the year 2010, she moved application to the Mukhtiarkar Mehrabpur who called the applicant. The applicant produced sale deed before the Mukhtiarkar and alleged that respondent. No.1 had sold her share to him. It was at that time that it came to the knowledge of respondent No.1 about the alleged transaction through forged and fabricated sale deed and thereafter she filed the suit within the time as prescribed by law. Such assertion of respondent No.1 was supported by her witnesses namely Shahzado and Behram Khan and the same could not be shattered and shaken in the cross-examination of respondent No.1 and her aforesaid witnesses by the counsel . the applicant/defendant No. 1.
30. As regards the legal plea raised on behalf of the applicant/defendant No.1 that there is violation of Order XX, Rule 5 by the trial court which provides that issue-wise findings should be given by the trial Court and that the provision of Older XLI, Rules 31 C.P.C. has also been violated by the Appellate Court, it may be observed that I have gone through the judgment passed b) the trial Court and I find that the trial Court has given issue-wise findings and each and every issue has been discussed elaborately. In my opinion, if certain issues are interlinked and interconnected, then there would be no harm if such issues are dealt with jointly. So far as the violation of Order XLI, Rule 31, C.P.C. is concerned, it may be observed that the substantial compliance with the aforesaid provision of law is sufficient. In the instant case the Appellate Court has given its findings, though not in so many words, in respect of almost all material issues, therefore, it can safely be held that substantial compliance with the provision of Order XLI, Rule 31, C.P.C. has been made. In this connection, it would be appropriate to refer a judgment of Honourable Supreme Court passed in the case of Mst. Zaitoon Bibi v. Dilawar Mohammad through Legal Heirs reported in 2004 SCMR 877 wherein it was held as under: "We do not agree with the learned counsel when he states that learned Additional District Judge was under statutory duty to discuss each issue separately and record findings separately discussing evidence thereon. We are of the view that in case the Appellate Court decides to affirm the findings of the trial court, it would be sufficient compliance with the provisions of law if the evidence is essentially discussed and findings recorded. At any rate it would not amount to violation of law, if some issues are discussed and decided together."
31. There is no cavil to the proposition laid down in the judgments relied upon by learned counsel for the applicant, however, the said judgments seem to be distinguishable as the facts and circumstances of the instant case and that mentioned in those cited cases are quite different.
32. The upshot of above discussion is that the instant civil revision application being not maintainable, as discussed above, and also being devoid of merits, is dismissed. Consequently, impugned judgment and decree dated 17.09.2016 passed by learned Additional District Judge, Kandiaro in Civil Appeal No.36 of 2014 as well as the Judgment dated '29.03.2014 and Decree dated 01.04.2014 passed by learned Senior Civil Judge, Kandiaro in F.C. Suit No. 42 of 2012 (Re-Mst. Rehana Bibi v. Mujeeb-ur -Rahman and others) are maintained. Revision Application is dismissed with no order as to costs.