Anwaar Hussain, J. Petitioner No. (i) is son, petitioners No.(ii) to (v) are daughters and petitioner No.(vi) is widow of one Hayat Ali who was also survived by proforma respondents No.1 and 2 as son and daughter, respectively. Late Hayat Ali was the beneficiary of impugned oral sale mutation bearing No.82 dated 29.04.1990 (hereinafter referred to as "the impugned mutation") which was challenged by predecessor-in-interest of the present respondents, namely, Mst. Khatoon Begum (since deceased) who happens to be the real sister of late Hayat Ali.
2. The suit was instituted on 13.10.2015 by late Mst. Khatoon Begum with the assertion that she is a simple, illiterate villager lady and the impugned mutation is fraudulent as she never appeared before the revenue officials for its registration and subsequent sanctioning. The contesting written statement was filed by late Hayat Ali with the contentions, inter alia, that suit is not instituted in accordance with Order VI, Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"); that the same is time-barred; and that the impugned mutation was properly registered and sanctioned in accordance with law and hence, the suit was liable to be dismissed. Out of the divergent pleadings of the case, issues were framed. Evidence was adduced by the parties and duly recorded where after the learned Trial Court, vide judgment and decree dated 21.03.2016, dismissed the suit of the respondent, inter alia, on the ground that Order VI, Rule 4, CPC has not been complied with and that the possession of late Hayat Ali is duly reflected through Khasra Girdawaries, brought on record as Ex-D.5 to Ex-D.10. Appeal was preferred by late Mst. Khatoon Begum in which proforma respondents No.1 and 2 who are children of late Hayat Ali got recorded their conceding statement that they have no objection if the appeal of late Mst. Khatoon Begum is accepted. The appeal preferred by late Mst. Khatoon Begum was accepted, vide judgment and decree dated 17.02.2018, by the learned Additional District Judge, Kehror Pacca and the findings of learned Trial Court were reversed. Hence, this civil revision has been filed.
3. Learned counsel for the petitioners submits that well-reasoned judgment of the learned Trial Court has been upset without any cogent reason inasmuch as the claim of late Mst. Khatoon Begum was time-barred in terms of Article 114 of the Limitation Act, 1908; that the issue is not of inheritance but of an oral sale; that details of fraud in terms of Order VI Rule 4, CPC has not been given; that revenue officials have not been arrayed as party; that possession as a consequential relief has not been claimed and hence, the suit was not competent; and that no one except late Mst. Khatoon Begum appeared as PW-1 in support of her claim and, while appearing as PW-1 she also contradicted her stance inasmu ch as in the plaint of her suit she stated that she went to the late Hayat Ali claiming the share in crops whereas while recording her testimony she stated that she went with the demand of return of her land, therefore, she has failed to discharge the burden that the impugned mutation was based on fraud. Further asserts that on the other hand, one of the marginal witness of the impugned mutation was the real brother of late Hayat Ali and late Mst.
Khatoon Begum who expired before recording of evidence, which was the precise reason for his non-production that has been wrongly construed by the learned Appellate Court below while passing the impugned judgment. Concludes that conceding statement of proforma respondents No.1 and 2 were of no value inasmuch as proforma respondent No.1 was himself attorney of late Hayat Ali and in that capacity was forcefully contesting the suit, instituted by late Mst. Khatoon Begum, and is estopped to take a contradictory stance at the appellate stage. Learned counsel for the petitioners place reliance upon "Muhammad Yaqoob v. Hameeda Begum and 4 others"
(2005 CLC 870), "Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others" (2005 SCMR 1278), "Muhammad Amir and others v. Mst. Beevi and others" (2007 SCMR 614), "Jamila Khatoon and others v. Aish Muhammad and others" (2011 SCMR 222), "Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs" (PLD 2011 Supreme Court 657) and "Shah Muhammad v. Mst. Khurshid Begum and others" (2016 MLD 135) in support of his contentions.
4. Conversely, learned counsel for the respondents submits that late Mst. Khatoon Begum was an illiterate, villager and a pardanasheen lady, who strived hard to get her lawful share of inheritance, which was grabbed by late Hayat Ali in a clandestine manner through the impugned sale mutation in his favour inasmuch as late Mst. Khatoon Begum never appeared before any revenue officials for registration and attestation of the impugned mutation and since late Hayat Ali was regularly paying the share in crops, hence, the cause of action accrued only when there was a categorical denial on part of late Hayat Ali to give the share and/or return the land, whereafter the suit was immediately instituted, therefore, the suit was not time barred. Adds that even otherwise, for the sake of arguments, if it is assumed that late Mst. Khtaoon Begum appeared before the revenue officers for any purpose, being a pardanasheen lady, she was entitled to an independent advice which was not available. This fact alone renders the entire transaction dubious and the burden of proof was on the petitioners being beneficiary of the same to prove that late Mst. Khatoon Begum appeared and affixed her thumb impression on the impugned mutation. Adds that no efforts were made on part of the petitioners to get the thumb impression of the Mst. Khatoon Begum compared through an expert. Places reliance upon "Muhammad Bakhsh through Legal Heirs v. Muhammad Shafi and 8 others" (1997 SCMR 1218), "Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs." (2008 SCMR 855), "Chaudhry Manzoor Ahmed through Legal Representatives and another v. Faisal Manzoor and 5 others" (2016 YLR 671), "Ghulam Farid and another v. Sher Rehman through LRs." (2016 SCMR 862), "Muhammad Yaqoob v. Mst. Sardaran Bibi and others"
(PLD 2020 Supreme Court 338) and "Faqir Ali and others v. Sakina Bibi and others" (PLD 2022 Supreme Court 85) in support of his contentions.
5. Arguments heard. Record perused.
6. Record reveals that specific allegations of fraud were leveled by late Mst. Khatoon Begum/plaintiff as per contents of the plaint on the score that she is a simple, illiterate and village lady falling under the definition of pardanasheen lady. In civil matters, initial onus to prove such alleged fraud and misrepresentation is on a person who alleges such facts. In order to substantiate her version, late Mst. Khatoon Begum appeared before the learned Trial Court as PW-1 and reiterated her stance as contained in the plaint and hence, successfully discharged the initial onus which shifted the burden of proof to late Hayat Ali (predecessor of the present petitioners as well as proforma respondents No.1 and 2). In case reported as Muhammad Yaqoob supra, the Hon'ble Supreme Court held that an illiterate village woman is to be treated at par with pardanasheen lady and where a transaction involves anything against her interest, it is imperative that impartial and objective advice was available to her and that the nature, scope, implication and ramifications of the transaction she was entering into, was fully explained to her and she understood the same. In case reported as "Janat Bibi vs. Sikandar Ali and others" (PLD 1990 SC 642) it has been held that burden of proof in respect of a document purported to have been executed by a pardanasheen lady affecting her right or interest in an immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act. Moreover, it is settled law that an extra care and caution has to be observed while executing an instrument from pardanasheen lady. In the instant case, admittedly, the suit property was share of the late Mst. Khatoon Begum in the ancestral property and late Hayat Ali was her real brother and the beneficiary of the impugned mutation, who was alive during the proceedings before the learned Trial Court but never appeared in person, and executed a special power of attorney in favour of his real son Muhammad Arif who appeared before the learned Trial Court as DW-4. While there is no cavil to the proposition that a party in a suit can always contest the same either directly or through an attorney, however, in the instant case, matter is of legal as well as social justice where a brother claims to have purchased the property from a sister who is pardanasheen lady and therefore, it was significant that the defendant himself should have appeared to face the cross-examination, failure thereof could impel the Court to draw adverse interference. It is pertinent to observe regarding explanation that late Hayat Ali was suffering from any disability in terms of health has been offered by the petitioner side but any evidence in support thereof has not been brought on record. Simultaneously, this Court is mindful of the legal position that non-appearance of a party in the witness box in itself may not invariably lead to adverse inference as in certain cases, the facts and evidence otherwise available on record may be sufficient to propel the Court to reach a just conclusion. Therefore, this Court would also take into consideration the non-appearance of the defendant himself and draw adverse inference but would also consider and measure up the evidence available on the record and apply its mind accordingly. Perusal of available record depicts that neither any sale amount was received by late Mst. Khatoon Begum as per entry of rapt roznamacha waqiati (Exh-D.2) nor same was paid before the revenue officer concerned as per endorsement of the impugned sale mutation. In case titled Ghulam Farid supra, the Hon'ble Apex Court also held that inflexible rule in case of transaction involving an illiterate village lady, inter alia, includes the burden on part of the beneficiary to prove that the amount of consideration equal to the value of the property was indeed paid to the said lady and therefore, in the instant case said requirement has not been met by the petitioners/defendants. It is imperative to note that only one marginal witness, namely, Abbas Ali has been mentioned in the impugned mutation, who is real brother of late Hayat Ali and late Mst. Khatoon Begum. No other marginal witness has been mentioned in the impugned mutation except one Ghulam Sarwar Lumberdar, who identified late Mst. Khatoon Begum. Both marginal witnesses neither appeared before the learned Trial Court to substantiate version of the late Hayat Ali nor any application was filed for production of secondary evidence if they were not available. Therefore, late Hayat Ali, predecessor-in-interest of the petitioners, being the beneficiary of the impugned mutation failed to produce cogent, reliable and confidence inspiring evidence as per mandate of Article 17 read with Articles 70, 79 & 80 of the Qanun-e-Shahadat Order, 1984.
Similarly, being beneficiary of the impugned mutation, no attempt was made by the petitioners to get comparison of the thumb impression of late Mst. Khatoon Begum either before the learned Trial Court or the Appellate Court below, which fact also goes against the petitioners and argument that late Mst. Khatoon Begum should have filed an application for the comparison of her thumb impression is also misconceived as the burden to prove the transaction was on the petitioners being beneficiary and not on late Mst. Khatoon Begum.
7. As regards argument of learned counsel for the petitioners that the revenue officials were not arrayed as party in the case as fraud is alleged and such discrepancy is fatal to the suit of a plaintiff, it is imperative to note that the same is also misconceived in the light of dicta laid down in a most recent judgment of the Hon'ble Supreme Court, reported as "Ghulam Muhammad v.
Zohran Bibi and others" (2021 SCMR 19). The Hon'ble Supreme Court of Pakistan while dealing with a similar case clearly held that impleading revenue officials in every case was not a rule of thumb and in case they are not impleaded by the parties, the revenue officials can always be summoned by either side or if considered necessary even as Court witnesses. Needless to mention that purpose of arraying the officials as parties in such like cases is to provide them an opportunity to participate and put forth their defence against the allegations of fraud, which in the instant case has been admittedly done insofar as the Patwari who was present at the time of registration of the impugned mutation and its subsequent sanctioning was in attendance as DW-3 and explained his point of view and supported the petitioners/defendants whereas the Tehsildar who purportedly sanctioned the mutation was admittedly not alive and hence, secondary evidence was recorded qua his signatures on the impugned mutation.
8. Much emphasis has been laid down by learned counsel for the petitioners that the impugned mutation was never brought on record in the statement of late Mst. Khatoon Begum herself while appearing as PW-1 and therefore, she cannot lay challenge to the same, rather the said document was exhibited on the statement of her learned counsel. In this regard, needless to mention that the petitioners are the beneficiaries of the said mutation and said document is admitted on their part and in these circumstances it is not of any significance if the same is brought on the record through the statement of counsel as admitted facts need not be proved.
9. Another dimension of the case is the status of the impugned mutation in favour of late Hayat Ali.
Needless to mention that in case of "Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Hon'ble Supreme Court held that it is settled law that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record. It is also settled law that any person who claims title through a mutation and the said mutation is challenged, the burden of proof of proving transaction embodied in the mutation is upon him as the mutation by itself does not confer any title and the beneficiary thereof is bound to revert to original transaction and prove the same as held in case reported as "Muhammad Akram and another v. Altaf Ahmad" (PLD 2003 SC 688). Perusal of evidentiary resume of the case reveals that late Hayat Ali failed to prove the transaction underlying the impugned mutation.
10. Similarly, it has been vehemently argued before this Court as also reflected in the impugned judgment passed by the learned Appellate Court below that late Mst. Khatoon Begum/plaintiff had not prayed for possession as a consequential relief, which admittedly is lying with the respondents.
In this regard, the learned Appellate Court has aptly held as under: "14. ....To such extent admittedly parties inter-se are real brother and sister and suit property is an ancestral property. Parties inter-se are co-sharers in the same and possession of one or more co- sharers is presumed to be possession of all. Reliance is placed on 1990 PLD SC 1. So, objection raised by learned counsel for respondents/defendants is of no avail, whereas regarding objection of limitation, suffice to conclude that there is no limitation in case of fraud and mis-representation as well as fraud would vitiate most solemn proceedings."
(Emphasis supplied)
Therefore, the contention that the possession of the suit property was with the petitioners and the suit instituted in the year 2015 challenging the impugned mutation stated to have been sanctioned in the year 1990 was beyond the limitation period, will not by itself make the suit time-barred. The cases relied upon by learned counsel for the petitioners, no doubt, are based on well settled elucidations of law but the case in hand is distinguishable mainly for the reason that an illiterate village lady who happens to be married at the time of execution of impugned mutation has been deprived from her share in ancestral property on the basis of the impugned mutation when she was admittedly not accompanied by her husband. Learned counsel for petitioners laid much emphasis that the judgment of the Hon'ble Apex Court in case of Mst. Phaphan supra is applicable to their case on all fours as long-standing revenue entries carry presumption of correctness.
However, the said judgment and underlying facts are distinguishable and not supportive of the case of petitioner inasmuch as the female in said case was duly represented by her husband in the consolidation proceedings and her husband had put his thumb impression during said proceedings in which the suit property in said case was allotted to the defendants therein whereas in the instant case situation is different altogether. Suit property in instant case is share of late Mst.
Khatoon Begum in her ancestral property unlike property in dispute in case of Mst. Phaphan supra.
At this juncture, it would be apt to point out that the arguments of the petitioners' side that the learned Appellate Court had assumed on its own that late Mst. Khatoon Begum was married at the time of recording/sanctioning of impugned oral sale mutation is also shallow and without substance. Even if it is assumed that she was unmarried at that time and no advice of husband could be made available, this fact in itself places even higher and heavier burden of proof on the beneficiary of the impugned mutation to prove the genuineness of transaction given the fact that late Mst. Khatoon Begum was unmarried sister of the beneficiary, whose father had passed away and she was dependent on her brothers regarding her worldly affairs being an illiterate village woman. As already observed, the legal status of the transaction involving property of the pardanasheen lady in general and that regarding the ancestral property in particular has been subject of deliberation by the Superior Courts including Hon'ble Supreme Court and jurisprudence is well settled. The Hon'ble Supreme Court of Pakistan in case titled "Khair Din v Mst Salaman and others" (PLD 2002 SC 677) held that no benefit could be derived by those claiming rights against female heirs based on fraudulent transactions. Thus, a heavy burden was on the petitioners being beneficiary of the transaction/mutation involving illiterate village lady and the petitioners fail to discharge the same. Ironically enough, the petitioner counsel instead of arguing that how and to what extent, the burden has been discharged being beneficiary, have been arguing in a misdirected manner that the respondent lady failed to discharge burden by claiming the fraud which was indeed erroneous on the part of the petitioners. At this juncture, it is also imperative to note that in an overwhelmingly patriarchal society like ours, there is a wide spread social practice to deprive the females from their legal and shari share in inheritance, which the Hon'ble Apex Court has always deprecated. Such deprivation is generally affected through instrument such as gift/tamleek and mutations sanctioned by practicing fraud or exercising undue influence on the females and are generally result of exploitation, emotional or otherwise of females, which takes away element of free consent from such contracts as required under the Contract Act, 1872. The Hon'ble Supreme Court of Pakistan in a recent judgment reported as "Farhan Aslam and others v.
Mst. Nuzba Shaheen and another (2021 SCMR 179) held such agreements to be against the public policy, which precisely is the position in the instant case. Late Mst. Khatoon Begum admittedly, was villager and an illiterate lady and there is nothing on record to dislodge that she was not married before sanctioning of the impugned mutation and independent advice was available to her as no male member of her in-law's family or her husband verified her, which further strengthen the version of the respondents and is one of the cogent reasons that persuaded the learned Appellate Court below to overturn the findings of the learned Trial Court.
11. Perusal of the record also reveals that the learned Appellate Court has properly appreciated the entire evidence available on the record as well as the law on the subject while upsetting the findings of the learned Trial Court. The Hon'ble Supreme Court of Pakistan has repeatedly held that in the event of a conflict between the judgments of the learned Courts below, preference should be given to the views of the Appellate Court. Cases reported as "Enayat Sons (Pvt.) Ltd. v.
Government of Pakistan through Secretary, Finance and others" (2007 SCMR 969) and "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398) are referred in this regard.
12. In view of the above discussion, this Court is of considered view that the judgment of the learned Appellate Court is in accordance with trite law and not irregular or erroneous as pleaded on behalf of the petitioners and is thus to be preferred over the judgment of the learned Trial Court. As a natural corollary, no interference is required and this Civil Revision is therefore, dismissed with no order as to cost.