Tersely, respondent No.1 filed a suit for declaration, etc. on the ground that she got the suit property as per her share in the inheritance of her deceased father. Father of petitioners is her real brother.
Sister of respondent No.1 was managing her land and cultivated the same whereas she herself cultivated the land measuring 43 kanalas bearing 31, 32, khatauni No.129 to 137 situated in Mauza Arrar and land measuring 8 kanalas, khewat No.No.58 to 60 situated in Mauza Sajjoka through her brother/father of the petitioners. Further she has not alienated her land in favour of the petitioners and challenged the mutations No.526 & 788, dated 30.06.2003 on the ground of fraud and misrepresentation. The said suit of the respondent No.1 was contested by the petitioners by way of written statement. Issues were framed, evidence of parties was recorded and learned trial Court vide judgment and decree dated 08.04.2022 dismissed the suit of the respondent No.1. Being aggrieved of the said judgment and decree, the respondent No.1 preferred an appeal and vide impugned judgment and decree dated 25.01.2023 passed by the learned Appellate Court, appeal of the respondent No.1 was accepted, consequently the suit filed by the respondent No.1 was decreed and impugned mutations No.526 & 788, dated 30.06.2003 stood cancelled. Hence, instant civil revision.
2. Heard.
3. It has been admitted on record by the petitioners that the respondent No.1 is an illiterate, rustic and village household lady and her husband is also illiterate. In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:- 'In case of a (property) transaction with an old, illiterate/rustic village 'Pardanasheen' lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:- i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; ii. That she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction; iii. That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her; iv. That the sale consideration was duly paid and received by the lady in the same manner; and v. That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/ receipt, as the case may be.'
Moreover, this Court has held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law; reliance is placed on Muhammad Afzal v.
Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:- 'It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.'
In a judgment reported as Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another (PLD 2022 Supreme Court 99), the Apex Court of the country has invariably held:- 'If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.'
However, in the present case, none of the above said parameters have been met with and no such evidence, showing that the respondent No.1 was having an independent advice and was fully aware and cognizant of the nature of the transaction, was brought on record by the present petitioners. Moreover, evidence as a whole has to be read and considered, which goes to evince that the petitioners have failed to prove the payment of sale consideration to the respondent No.1, because purportedly the bargain of oral sale was struck in presence of Sardar Bukhsh, Mehta and son of the respondent No.1/plaintiff but none of them were produced in the witness box by the petitioners so as to substantiate their stance. D.W.4 is the Patwari who entered the mutation Ex.D3 and he categorically admitted that the mutation does not bear thumb impressions of Fateh Bibi and even the CNIC of Fateh Bibi is not present on the said mutation. So much so, the revenue officer has also not been produced by the petitioners, who otherwise was necessary to be produced and no evidence showing his incapability to appear in the Court was adduced, therefore, adverse presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 would arise that the best evidence has been withheld and if the revenue officer had appeared in the witness box, he would not have supported the stance of the petitioners. Apart from this, the report Ex.D1 was not produced by its author, so the same has rightly been adjudged to be inadmissible in evidence by the learned Courts below.
4. So far as the arguments that only declaratory decree was sought by the respondent No.1/plaintiff without seeking possession, therefore, the suit was not maintainable, is concerned, the said point has already been responded to by the Apex Court of the country in a judgment reported as Mst.
Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318) and it has been held that:- 'The respondent was simply knocked out and deprived of his land on technical grounds. If a party seeking declaration has failed to claim consequential relief, he should not have been non-suited on technical grounds. It has been held time and again by this Court that technicalities shall not create hurdles in the way of substantial justice. Rules and regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities. Reference in this regard is made to the case of Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114), where it was held as under-- In the exercise to do justice in accordance with law the Courts and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarreling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad lqbal and others (PLD 1984 SC 95 at page 132) and Civil Appeal No.789 of 1990, decided on 26-6-1991 (Syed Phul Shah v.
Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and /or is Government or a State institution or functionary acting as such. "
It has further been held in the said judgment that:- 'The denial of relief to a party simply on the ground that consequential relief vas not claimed would, in no circumstances, advance the cause of justice.
It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is of claimed. The trial Court in such like circumstances may call upon a party to amend the plaint to that extent and direct him to pay court-fee, if any.
Reliance in this respect is placed upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) where it was observed as under:-- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer or possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it."
However, in the present case, the perusal of the plaint divulges that respondent No.1 claims herself to be owner in possession and alleges the disputed mutations a result of fraud, without consideration and without change of possession. Moreover, the property in dispute is an inherited property and possession of the present petitioners, if any, would be considered as constructive, because the same was under their cultivation prior to the impugned mutations and would be considered as on behalf of the respondent No.1 because the present petitioners are her nephews i.e. sons of her brother namely Allah Bukhsh; therefore, when she has proved her claim, she is also entitled to consequential relief of possession and mere on the basis of technicalities, she cannot be knocked out.
5. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioners/ defendants have miserably failed to prove their case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity, rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), CANTONMENT BOARD through Executive Officer, Cantt. Board Rawalpindi v. IKHLAQ AHMED and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that :- 'There is a difference between the misreading, non-reading and mis-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:- 'Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.'
6. For the foregoing reasons, the impugned judgments and decrees are maintained with further relief of possession in favour of the respondent No.1 and the revision petition in hand being devoid of any force and substance stands dismissed in limine. No order as to the costs.