SHAHID BILAL HASSAN, J. Succinctly, the respondent No.1 instituted a suit for declaration and permanent injunction challenging the oral sale mutation No.1012 dated 18.08.1999 in favour of the respondents No.2 to 4 regarding property measuring 15-Kanals 8-Marlas and subsequent mutation No.1444 in favour of the present petitioner, situated in village Jhando Sahi, Tehsil Daska, District Sialkot, against the respondents No.2 to 4 and the present petitioner, which was duly contested by them while submitting written statements. The divergence in pleadings of the parties was summed up into issues by the learned trial Court. Both the parties adduced their oral as well as documentary evidence. The learned trial Court vide judgment and decree dated 13.09.2017 dismissed suit of the respondent No.1, who being aggrieved preferred an appeal there-against. The learned appellate Court vide impugned judgment and decree dated 05.10.2018 accepted the appeal, set aside the above said judgment and decree, and decreed the suit in favour of the respondent No.1; hence, the instant revision petition.
2. Heard.
3. Mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction, which resulted into the entry of attestation of such mutation. Reliance in this regard is placed on Muhammad Akram v.
Altaf Ahmad (PLD 2003 Supreme Court 688). In the present case, the respondent No.1 categorically pleaded that she was defrauded and mutation No.1012 dated 18.08.1999 with regards to oral sale was got attested by the respondents No.2 to 4. Therefore, the petitioner was bound to prove the original transaction, wherein he has failed to lead any evidence, rather D.W.1 in a categorical manner admitted, during cross examination, that news erupted after four years of transfer of property in favour of Waqar Ahmad, etc. that respondent No.1/ Azra Parveen had been defrauded; however, despite such information the present petitioner purchased the disputed property through mutation No.1444, which can safely be said to have been purchased with notice and the petitioner cannot say that he is a bona fide purchaser. The conclusion drawn up by the learned Courts below on this point is based on proper appraisal of evidence, especially admission of D.W.1, on record.
In addition to the above, in respect of a transaction germane to property with a pardanasheen lady, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCM R 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 SCM R 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, 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 petitioner.
More and above, the petitioner could not lead any evidence to show that as to when and where the bargain with regards to the sale of the suit property was struck in between the respondent No.1 and respondents No.2 to 4 and even names of witnesses was not pleaded, because entering of mutation in the revenue record is subsequent event and it is only for fiscal purposes.
Over and above, after specific denial of execution of the disputed sale mutation by the respondent No.1 and non-making of thumb impression over the same, the petitioner did not make any exertion to get compared the thumb impression of the respondent No.1 by moving an application in this regard before the learned trial Court; meaning thereby the stance taken up by the respondent No.1 in this regard has not been negated by the present petitioner rather in an implied manner has admitted the same. The petitioner could not produce the witnesses in whose presence the disputed mutation was entered into revenue record and the revenue officer, who attested the mutation was also not produced; therefore, adverse presumption as per mandate of article 129(g) of Qanun-e-Shahadat Order, 1984 arises against the petitioner that had the said witnesses been produced in the witness box, they would not have supported the stance of the petitioner.
4. The question with regards to limitation has rightly been adjudged and addressed by the learned appellate Court, because when fraud has been proved, the limitation in such scenario does not run. Moreover, the question germane to possession has also correctly been decided, because D.W.1 admitted that the respondent No.1 was in possession of the disputed land, therefore, Khasra Girdawri in view of such admission loses its sanctity. The point of levy of court fee has also judicially been decided as in this case the provisions of section 7(4)(c) of Court Fee Act attracts.
5. The reasoning rendered by the learned appellate Court are more plausible and cogent than that of the learned trial Court; therefore, the impugned judgment and decree passed by the learned appellate Court is upheld and maintained.
6. Even otherwise, it is a settled principle, by now, that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCM R 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCM R 1300).
7. For the foregoing reasons and while placing reliance on the judgments supra the civil revision in hand being devoid of any force and substance stands dismissed. No order as to the costs