Rasaal Hasan Syed, J. The petitioner in this civil revision has impugned judgment and decree dated 01.9.2014 of the learned Addl. District Judge, Chunian in terms whereof appeal was allowed, the judgment and decree of the trial court dated 01.1 1.2012 was set aside, and suit of the petitioner was dismissed.
2. Petitioner instituted a suit for declaration to challenge mutation No. 2338 dated 04.3.2003 as also rapt roznamcha waqiati No. 251 dated 31.1.2003 claiming that the same were fictitious, forged and procured by fraud and misrepresentation and that she being blind, female and a septuagenarian, respondent Nos. 1 and 2 who were co-sharers in the joint property , illegally and collusively , attempted to deprive her of property through an alleged mutation of oral sale; though in point of fact she had never agreed to sell the land nor sold the same or ever appeared before the tehsildar or receive any consideration and that the whole process was completed by collusion, fraud and forgery and that, being so, the impugned mutation was inoperative against her rights and liable to be annulled. The suit was resisted by respondent Nos. 1 and 2 who denied the allegations. Issues were framed, evidence was recorded and ultimately the suit was decreed by the learned Civil Judge vide judgment and decree dated 01.11.2012. In appeal preferred by contesting respondents, the learned Addl. District Judge set aside judgment of trial court and dismissed the suit of petitioner vide judgment dated 01.9.2014 which is now subject- matter of consideration before this Court.
3. Learned counsel for the petitioner argued that the learned Addl. District Judge completely misread the evidence, misapplied the law and illegally ignored that it was a case of fraud committed against a blind old lady, that evidence on record proved beyond doubt that she had never entered into any transaction of sale, no receipt or acknowledgement was adduced to prove the alleged payment of consideration and that the testimonies of witnesses produced by the respondents were materially discrepant, unworthy of any credence on the face of it and that the grounds that prevailed upon the learned Civil Judge for granting decree in the suit were illegally ignored and that the learned Addl. District Judge committed serious error of law and jurisdiction in reversing the findings of fact that were based on correct analysis of evidence on record. The learned couns el for the respondent Nos. 1 and 2 contrariwise supported the impugned judgment and submitted that the appellate court correctly scrutinized the evidence and that there was no misreading of record, the transaction of sale was duly proved and findings of the learned Civil Judge being erroneous were rightly interfered with in appeal.
4. Points raised pro and contra have been examined in the light of documents annexed with the present revision petition which comprise pleadings of parties, oral and documentary evidence as also the judgments of the courts below . Perusal thereof reveals that the petitioner Rajan Bibi in her suit claimed that she was owner of land measuring 04 kanals situated at Mauza Khokhar Ashraf, Chunian, respondent Nos. 1 and 2, Amjad Ali and Asghar Ali respectively , were joint-owners in the khata; respondent No. 1 approached her and stated that he had to apply for some fertilizer loan and that she being a co-sharer in the land, her thumb- impression will be required for obtaining Agricultural Passbook and that on this false pretense she was taken to patwari where her thumb- impressions were obtained by claiming that the same were required for completing of process of issuance of Agricultural Passbook for the fertilizer loan and that this was also what the patwari had explained to her; and that a few days before the filing of suit her son Rasheed Ahmad informed that he had been told by the respondents that they allegedly purchased share of the petitioner 's land and an inquiry was made from the patwari consequent to which it transpired that the respondent Nos. 1 and 2 had fraudulently obtained the thumb-impression of the petitioner on the pretense of obtaining Agricultural Passbook and that were misused and fraudulently transformed into an alleged rapt of oral sale in conspiracy with the patwari though she had never entered into any oral agreement of sale with respondent Nos. 1 and 2 nor had ever any intention to sell her share of land and never settled any transaction of sale or receive any consideration and that she neither appeared before the revenue officer/tehsildar for recording statement for attestation of alleged mutation of oral sale nor ever made any statement before the tehsildar or acknowledged any such non-existent bargain; and that the entire process was completed fraudulently in conspiracy with the revenue staf f.
5. In support of her case she appeared as PW-1 and reiterated the facts she had stated in the plaint. As against the petitioner , respondents produced Javaid Saeed Patwari Halqa as DW-1 who produced copy of mutation No. 2338, Parat Sarkar; Muhammad Sarwar , ex-Patwari appeared as DW-2 who had entered rapt No. 251 dated 21.1.2003; Falak Sher as DW-3; Muhammad Mushtaq as DW-4; Amjad Ali defendant/respondent No. 1 appeared as DW-5 and Muhammad Ali Kamyana, ex-Revenue Officer Chunian who allegedly attested the disputed mutation was produced as DW -6.
6. It is discernible from the stance taken in the pleadings that the petitioner 's case was that she had never agreed to sell her land nor ever received any amount of consideration and that she never appeared before the revenue officer for the attestation of mutation of oral sale of land and that everything was completely fraudulently done.
Foundation of her plea was that she was taken to the patwari on the pretext of issuance of an Agricultural Passbook which respondent No. 1 intende d to obtain for the purposes of some fertilizer loan, and this was what the patwari had explained to her and that she never acknowledged or admitted before the patwari about any oral sale of land. She had pleaded to be a blind lady aged between 70 and 75 years. Respondent No. 1, Amjad Ali, in his statement as DW-5 admitted in cross-examination that he had admitted in the written statement that the petitioner was a blind lady. Not only this, the respondents' witness Falk Sher, DW-3, admitted it to be correct in cross- examination that Rajan Bibi was indeed blind. Muhammad Mushtaq, DW-4, another witness of respondents too admitted in the first line of his cross-exam ination that Rajan Bibi was a blind lady. Interestingly the patwari of the relevant time, who had entered rapt roznamcha waqiati, Exh.D-2, when appeared in evidence as DW-2, stated that before him a "healthy lady" had appeared. Same is the case with the tehsildar who appeared as DW-6 and stated that he did not recollect as to whether the lady who appeared for attestation of mutation as Rajan Bibi, was blind or not nor could remember as to whether her son or brother accompanied her at the time or not. Rather he claimed that Rajan Bibi who appeared before him was in full command of her senses. It was never the case of respondents that the petitioner was not blind at the time of mutation or that she had lost her eyesight subsequently . They in fact admitted in evidence that she was blind. Being so, the statements of the patwari and the tehsildar , were sufficient to create reasonable doubt as to the identity of the lady who had appeared as "Rajan Bibi" before them for the purposes of completing the process of attestation of mutation.
7. It was a case in which the existence of transaction of sale and payment of consideration were outright denied by the lady who was a septuagenarian and blind. The moment she appeared before the court and made her statement on oath that she had not transacted for the sale of her property nor did she receive any valuable consideration and specifically denied having ever appeared before the concerned functionaries for attestation of mutation; heavy onus shifted upon the respondents to prove, not only the claim of genuineness of mutation proceedings but also the original transaction of sale itself. In this context it is observed that the respondents did not allege in the written statement that any meeting was held for the settlement of bargain in the house of the petitioner before the entry in rapt roznamcha waqiati . Their defense was that they had purcha sed the property and that the lady had allegedly appeared before the revenue functionaries i.e., patwari and tehsildar , and allege dly admitted transaction of sale and also receipt of consideration. In the evidence, a new narrative was introduced that before the entry in rapt roznamcha waqiati , the respondents along with the witnesses had allegedly visited the house of petitioner at Mauza Kot Umer Wattoo where the alleged payment of Rs.1,00,000/- was made in the presence of Rasheed son of the petitioner and that the cash was counted by Rasheed whereafter the petitioner accompanied for reporting the transaction in roznamcha waqiat i. This version was repeated by the witnes ses though with certain discrepancies in respect of date or the day of the alleged visit to the house of petitioner; as respondent claimed that on the next day rapt was made but the witnesses stated that after two to three days the rapt was recorded. Be that as it may, the entire evidence as to the alleged visit to the house of the petitioner and making of alleged payment of Rs.1,00,000/- to Rasheed son of the petitioner are inadmissible for the reason that there was no foundation thereof in the pleadings. It is settled rule that material facts shall be mentioned in the pleadings and that evidence could be led to amplify the same. In a case where a material fact is not pleaded in the written statement neither any evidence could be allowed nor, if recorded, shall it be admissible in law. In "Government of West Pakistan (Now Punjab) through Collector , Bahawalpur v. Haji Muhammad" (PLD 1976 SC 469) it was observed to the effect that if a plea of fact is not pleaded no case can be founded on it. In "Mst. Jannat Bibi v. Sher Muhammad and others"
(1988 SCMR 1696 ) it was observed to the effect that in civil proceedings a party is not permitted to deviate from their pleadings, nor could the court set up a different plea for a party and decide the suit on that basis let alone at the appellate stage. In "Sadar Ud Din (since deceased) through L.R.s v. Sultan Khan (since deceased) through L.R.s and others" (2021 SCMR 642) it was ruled to the effect that in the absence of plea in the plaint evidence could not be considered on the basis of the principle laid down by the Court that the parties were required to lead evidence in consonance with their pleadings and no evidence in support of a plea that had not been taken in the pleadings, could be led and that the parties were required to plead facts necessary to seek relief and to prove them through evidence of unimpeachable character .
8. As noted supra, in the instant case the respondents did not plead in the written statement that there was any meeting for settlement of pre-conditions or that payment was made in the house of petitioner a day prior to the reporting of transaction in the roznamcha waqiati nor was there any assertion that the respondents, along with their witnesses, had gone to the house of petitioner at Kot Umer Wattoo and that the sale consideration of Rs.1,00,000/- was paid to Rasheed son of the petitioner who counted the amount. Instead, the plea was that the petitioner in the presence of witnesses before the patwa ri declared oral sale and for the incorporation of rapt No. 251 dated 31.1.2003 and that she allegedly affixed her thumb-impression on the roznamcha waqiati. There was no mention of any meeting prior to the entry of rapt roznamcha waqiati in the written statement and the entire narrative was introduced for the first time in the evidence. Obviously , such evidence being extraneous to the facts averred in the written statement and being without laying of any foundation in the written statement, could not be deemed to be admissible in law even if it was brought on record, in view of the rule settled in the precedents mentioned supra.
9. As regards the other evidence, the respondents' claim was that they had purchased the property through oral sale in consideration of Rs.1,00,000/-. It was imperative for them to allege in the pleadings the time, date and place where the terms and conditions for the alleged oral sale were proposed and accepted and the bargain was struck as well as the names of the witnesses in whose presence this happened. In the peculiar circumstances of this case where the respondents were claiming a deal with a blind old lady, it was also necessary for them to ensure that she was duly represented and had the independent advice of some near one and dear one like son, brother , husband or father if alive, who should have been present at the time of transaction to make a blind old lady fully and reliably comprehend the alleged arrangement of oral sale as well as to ensure the security of cash if paid at that time.
Before it could be convincingly claimed that she had thumb-marked the document, it was necessary for the respondents to prove that she entered the deal with her free-will and volition. The petitioner , as stated above, in her plaint and also in her evidence on oath, categorically deposed that she never entered into any oral agreement of sale, never wanted to sell her share in the joint-property and that she did not receive a single penny from respondent Nos.1 and 2 nor had she ever appeared before the tehsildar to record her statement to acknowledge and confirm any oral sale and that her thumb-impressions in the roznamcha waqiati, etc. were obtained by fraud and misrepresentation and in conspiracy with patwari halqa. In her cross-examination she had disclosed that she had three sons who were all young, two of them were married while the third one was unmarried and that she was living with her younger son Muhammad Munir who was matriculate and a salesman. She reiterated that she did not receive any amount nor ever made any oral transaction of sale of her share in the property . As against this, the respondents in their evidence claimed that the alleged payment was made to Rasheed son of the petitioner who allegedly counted the cash and confirmed the amount; but Rasheed was not produced or summoned as a witness or a court-witness in support of their stanc e taken for the first time in evidence. Strangely enough, the learned Addl.
District Judge assumed that it was the petitioner who was under an obligation to produce Rasheed as her witness little appreciating that the onus to prove the transaction of oral sale was upon respondent Nos.1 and 2 who were duty-bound to produce all the persons as their witnesses who in their understanding had performed any role in the completion of the alleged transaction. Since it was the respondents' case in evidence that the payment was made through Rasheed, son of Rajan Bibi, it was their duty to produce him as their own witness or as a court-witness and his non-production obviously triggered serious adverse inference against them.
10. Another important aspect of the matter is that the roznamcha waqiati is claimed to have been recorded on the oral information of petitioner Rajan Bibi who was allegedly identified by Falak Sher and Mushtaq; but names and thumb-impressions of Falak Sher and Mushtaq appear below the report and, thereafter , the names and thumb- impressions of Rajan Bibi and Amjad (the alleged vendee) occur that imparts an impression as if the rapt was prepared on the alleged oral information of the witnesses. The names of the informer , vendor and vendee as a matter of practice had to appear immediately after the completion of writing of rapt. In the instant case, however , the arrangement of signatures is inconsis tent with the narrative of Rajan Bibi as informer of her own transaction as the signatures and thumb-impressions of the alleged witnesses are affixed befor e those of the alleged informer Mst. Rajan Bibi or the alleged vendee Amjad instead of occurring below the names and thumb-impression of the alleged informer , vendee and vendor .
Another fact pointed out by the learned counsel for the petitioner appears to be of some significance. The pert patwar of mutation No. 2338 dated 04.3.2003 as also pert sarkar of the said mutation were produced as Exh.P-2 and Exh.D-1. The document in this case comprised two pages; but the thumb-impressions of the parties and their witnesses do not appear immediately below the proceedings of the alleged mutation dated 04.3.2003. Rather they are shown in part "bay" (tittima shijra) at second page of the document while all the columns in part "aleph" of tittima field-book are blank. This obviously supports the plea of the petitioner that the thumb-impression of the blind lady were obtained on blank paper as in ordinary course they ought to have got reflected on the page where the proceedings were completed by the revenue of ficer.
11. As regards the statement of DW-6, tehsildar/revenue officer of the relevant time who allegedly attested the mutation, curiously , the original record of mutation was never produced before him which fact was admitted by him; yet he had the guts to record his deposition on the basis of photocopy of a copy of document Exh.D-1. He admitted in cross-examination that the original mutation record was not before him and that he did not remember as to whether the lumberdar was present or not at the time of attestation of mutation. He claimed that he did not recollect if Rajan Bibi was blind or not nor could he recollect as to whether she was accompanied by any of her sons or brother but claimed that the lady who appeared before him was in her full senses. In cross-examination he further stated that he could not say if there was any daura (tour) of the revenue officer between 21.1.2003 to 06.4.2003.
He volunteered that on 18.2.2003 he had a tour of the village but none of the parties appeared before him, and he could not recollect if he had checked the roznamcha waqiati or not before attesti ng the mutation. Scrutiny of his statement clearly reveals that there is no indication of the fact that the lady who appeared as Rajan Bibi before him was a blind lady or was aged between 70 and 75 years and that she was not accompanied by any male member of the family like son or brother .
12. It has been consistently observed that the revenue officers shall be very cautiou s in the matter of sanctioning of mutations wherein the transaction is claim ed from a lady. Particularly when she is old and blind. It has repeatedly observed that where the alleged vendor is a blind person, extraordinary care is expected of the public functionaries, i.e. revenue officers in this case, to ensure the authenticity of the transaction by making necessary inquiry that the vendor was accompanied by some close male relative and that independent advice was available and the person concerned was made to understand the transaction which they understood with its clear impact. Reference can be made "Ghulam Shabbir and another v. Sikand ar Shah and another (1999 CLC 576), "Mst. Asia Khatoon v.
Khan Shareen" (2015 YLR 435) and "Rana Liaqat Ali and 10 others v. Mst. Azizan and 5 others" (2016 CLC 736). In "Phul Peer Shah v. Hafeez Fatima" (2016 SCMR 1225 ) it was observed to the effect that in cases where the transaction is claimed to be by a pardanashin lady the onus to prove the transaction is upon the beneficiary who has to establish free of all suspicion s and doubt that the transaction was legitimately made and that certain mandatory conditions shall be complied with and fulfilled through transparent manner and that pre-conditions to be followed will be that the lady was fully cognizant of the nature of the transaction and its consequences; that she had independent advice from a reliable source and person of trust to fully understand the proposed commitment; that witnesses to the transaction are close relatives or fully acquainted with the lady without any conflict of interest with her; that sale consideration was duly paid and received by her in the same manner; and that the very nature of transaction is explained to her in the language she understands fully well and she is apprised of the contents of the documents involved.
13. In the instant case the evidence on record including the evidence of respondents proved beyond doubt that the petitioner was a blind lady. In the first instance the respondents admitted in cross-examination that Mauza Kot Umer Wattoo where the petitioner resided was at a distance of four to five miles from the patwar khana and that respondent No.1 escorted the blind lady on a bicycle there and after completing the process, he dropped her back at her house. It is odd that the lady was living with her son but he was not taken along with her which casts cloud of serious doubt upon the genuineness of the transaction. The entire narrative appears to elicit suspicion. Nor is there any creditworthy explanation as to why none of the three sons of petitioner (who were young and out of them two were married) was associated in the entire dealing, particularly , when it was not the case of respondents that they were not on speaking terms or had any bitter relations with the mother . DW-3 claimed that the lady was accompanied by Muhammad Rasheed to the office of patwari though this is not the case of either the respondents or any of their witnesses. It also cannot be overlooked that if the son of the petitioner , with whom she was living, was matriculate as to why a receipt could not be executed as acknowledgement of the payment. The respondents did not claim the execution of any such receipt as acknowledgement of the full sale price which in itself raises serious doubt as to the plea of oral sale and also the genuineness of the narrative of the respondents. As regards the plea of being in possession, the learn ed Civil Judge rightly observed that the respondents did not produce the khasra girdawari of the relevant khewat nor any record to prove the change of entries with regard to the column of possession. Be that as it may, the petition er was owner of 04 kanals in joint land and being a co-sharer , every co- sharer is deemed to be in possession of the property and if any co-sharer holds the same it inures for the benefit of all the other co-sharers who will be deeme d to be in joint-possession unless a case of complete ouster was claimed and proved which is obviously not so in the present instance.
14. In view of the factors noted supra, the respondents miserably failed to prove the oral sale or the lawful sanctioning of any mutation of sale. Rather the circumstances proved that it was a case of clear-cut fraud which was played upon an old and blind wom an. The learned Civil Judge, in this backdrop, rightly observed that the evidence on record revealed that the respondents admitted the petitioner to be a blind lady. The woman who appeared before the patwari was not claimed to be blind rather she was claimed to be a healthy lady, who of course was not the petitioner and that the revenue officer also did not remember if the lady who appeared before him was blind or not and that the rule was that if an infirm and disabled person appeared regarding such transaction, the public functionaries had to show responsibility in looking after their affairs in the public interest and should be extremely cautious if a blind woman was produced before the patwari or before tehsildar without her close relatives and they were expected to be extra careful; but in this case neither the patwari halqa nor the tehsildar mentioned the factum of blindness of the lady in the rapt roznamcha or at the time of attestation of mutation and candidly admitted that the lady who appeared before them was of sound health and was not a blind woman and all these circumstances prove d that the mutation and rapt roznamcha waqiati were result of fraud. The learned Addl. District conveniently ignored the reasoning recorded by the learned Civil Judge and also the facts noted supra and, therefore, the impugned judgment suffers from serious error of law and jurisdiction and misreading and non-reading of evidence on record which is also otherwise contrary to the settled rules approved by the superior courts. The findings recorded by the learned Addl. District Judge being based on perfunctory reasoning and on illegal and erroneous analysis of evidence cannot sustain and are, accordingly , set aside.
15. Resultantly , the revision petition is accepted , the impugned judgment dated 01.9.2014 of learned Addl. District Judge, Chunian is set aside and by restor ing the judgment and decree dated 01.11.2012 of the learned Civil Judge, Chunian, the suit of the petitioner shall remain decreed.