Anwaar Hussain, J. Mst. Suriya Bibi-respondent instituted a suit for declaration to the effect that she is owner in possession of the suit property, and that the petitioner before this Court, namely, Muhammad Rafique has no concern whatsoever with the same. Challenge was also laid to the impugned sale mutation bearing No.1799 sanctioned on 05.06.2017 as also sale mutation bearing No.1807 sanctioned on 19.07.2017, being illegal, unlawful, and based on fraud, with the averments that the respondent neither visited the Land Record Centre nor appeared before the ADLR concerned for the recording and attestation of the impugned sale mutations; and that she did not receive any sale consideration. The suit was contested by the petitioner. After framing of issues and recording of evidence, the suit was dismissed through judgment and decree dated 04.07.2023, against which the respondent preferred an appeal. The findings of the Trial Court were upended through impugned judgment and decree dated 03.01.2025, and the suit of the respondent was decreed. Hence, the present civil revision under Section 115 of the Code of Civil Procedure, 1908.
2. Learned counsel for the petitioner submits that the findings of the Courts below are at variance and it is for this Court to adjudge as to which of the two findings has been rendered after proper appreciation of evidence on record. Adds that the petitioner produced both the marginal witnesses of the impugned sale mutations, and revenue officials also supported the stance of the petitioner, which fact has been brushed aside by the Appellate Court below merely on the ground that the respondent is a pardanashin lady and no independent advice was available to her at the time of attestation of the impugned mutations, which is not a rule of thumb. Further contends that particulars of fraud have not been disclosed, hence, the suit of the respondent was liable to be dismissed. In support of his contentions, places reliance on the cases reported as Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703) and Aamir Afzal and another v. S. Akmal (deceased) through L.Rs. and 2 others (2024 SCMR 1649).
3. Conversely, learned counsel for the respondent has supported the impugned findings. Adds that there was animosity between the parties, and hence, there was no reason to have any commercial transaction between them. Further contends that the same picture/photograph of the petitioner was present on both the impugned sale mutations, which in itself indicates that fraud was committed, and this fact has been rightly appreciated by the Appellate Court below, while passing the impugned judgment dated 03.01.2025.
4. Arguments heard. Record perused.
5. The core question that requires adjudication is whether the fact that the vendor-respondent is a villager lady alone can be a ground for upending the sale transaction, when both the marginal witnesses have appeared and corroborated the stance of the purchaser--petitioner, and no connivance of the revenue officials concerned could be established?
6. The respondent alleged that the impugned sale mutations in favour of the petitioner were result of fraud and that she never received the sale consideration, however, it is pertinent to note that the impugned sale mutations were executed in the year 2017, with a gap of more than one month, which were duly attested by the revenue officers concerned, witnessed by two marginal witnesses, and processed through biometric verification at the Land Record Centre. The entire process, from obtaining the respondent's thumb impressions to capturing her photograph, followed the prescribed legal procedure, leaving no room for fraud or impersonation. The revenue officers, including the Service Centre Official and ADLR, unequivocally testified that the sale transactions were genuine and completed with due diligence. Suffice to note that the biometric verification system, designed to prevent fraudulent transactions, confirms the respondent's identity at the time of execution of the impugned mutations. The respondent's argument that the same photograph appeared on both the impugned sale mutations has been fully explained by the revenue officials, who clarified that once a biometric record is created, the system retains the image, and it automatically appears whenever future transactions are conducted and the biometric (thumb) verification is made. This is a standard feature of digital authentication and does not, in any way, indicate fraud or manipulation. The respondent has failed to produce any forensic or technical evidence proving that her biometric data was tampered with or fraudulently used.
7. Furthermore, the respondent's conduct following the execution of the sale transactions is inconsistent with her claim of fraud. For two and a half years, after the sanctioning of the impugned sale mutations, the petitioner has been in possession of the suit property, yet the respondent made no effort to remove him or assert her ownership rights. Her claim that the petitioner unlawfully took possession from her tenants is unsupported by any complaint, legal action, or protest. If she genuinely believed that the petitioner had dispossessed her tenants unlawfully or obtained possession in connivance with the said tenants, she had ample legal remedies available, none of which were pursued. This prolonged inaction gives rise to estoppel, as she allowed the petitioner to continue with possession without any challenge and now seeks to displace him through a claim of fraud. Suffice to observe that a party who remains silent and takes no action to assert his rights cannot later be permitted to benefit from his own inaction.
8. Another significant aspect of the case is the failure of the respondent to produce her husband as a witness, despite the petitioner's assertion that the sale consideration was paid in the respondent's drawing room in the presence of her husband. Instead, PW-2--respondent's brother- in-law, appeared and stated that the respondent and her husband told him about the alleged fraud. PW-2 stated as under: This testimony is clearly hearsay and does not constitute admissible evidence. The husband, being a key witness with direct knowledge of the alleged transaction and/or the alleged fraud, was deliberately withheld, leading to the presumption that his testimony would not have supported the respondent's case. The principle of best evidence dictates that where a party avoids presenting a material witness without justification, an adverse inference must be drawn against such a party.
Case reported as Dilshad Begum v. Nisar Akhtar" (2012 SCMR 1106) is referred in this regard.
9. A lot of emphasis has been laid by learned counsel for the respondent that there was animosity between the parties and it belies logic that the respondent will sell her property to the petitioner.
The argument though persuasive in first blush is misconceived in facts and circumstances. Even otherwise, the animosity between the parties, in itself, cannot diminish the evidentiary value of the testimony of the marginal witnesses of the impugned mutations. The credibility of a witness is assessed based on the intrinsic merits of his testimony, consistency, and ability to withstand cross- examination. In the present case, both marginal witnesses categorically affirmed the execution of the sale transactions, and their statements remained unshaken despite rigorous cross- examination. Moreover, their depositions were corroborated by the revenue officials who confirmed due execution and attestation of the mutations in accordance with the prescribed legal procedure.
Suffice to observe that the presence of personal discord between the litigants cannot operate as a blanket ground to discredit independent witnesses, especially when their testimonies are backed by the documentary and procedural compliance. At the same time, it cannot be overlooked that the parties are close relatives, and any animosity between them is not an immutable barrier to reconciliation. Over the time, parties frequently find ways to settle their differences, either through mutual understanding, mediation, or by recognizing the futility of prolonged litigation. The Courts must, therefore, remain cautious in attributing undue weightage to allegations of enmity, as disputes between relatives are inherently dynamic and subject to resolution. Past or present disagreements of the parties do not override documented legal transactions, particularly, where due process has been followed and independent evidence supports the transaction's validity. Even otherwise, if said argument of learned counsel for the respondent is accepted, it would create a dangerous precedent where every transaction could be negated merely by alleging hostility, thereby undermining the sanctity of the attested documents. Therefore, the attempt to discard the statements of the marginal witnesses on the ground of animosity is legally untenable and does not, in any manner, dislodge the authenticity of the impugned sale mutations.
10. At this juncture, it is also worth-mentioning that the petitioner has not disclosed the particulars of the fraud in unequivocal terms and hence, reliance on cases of Mst. Sahib Noor and Aamir Afzal supra by the petitioner side is apt. The respondent also acknowledged that she has no animosity against the witnesses of the impugned sale mutations other than they being witnesses of the mutations. She also acknowledged the possession of the petitioner over the suit property, as owner, in the following terms: Moreover, she stated that she came to know about the impugned sale mutations when she visited the office of Land Record Centre for the purpose of obtaining fard jamabandi in order to facilitate her son in obtaining loan, however, in para 4 of her plaint she stated as under: (Emphasis supplied)
The above quoted para of the plaint clearly depicts that the respondent admitted that she visited the Land Record Centre for the purpose of seeking amendment in the revenue record to ensure the removal of a stay order against her property. This unequivocally establishes that she possesses the clear understanding of legal processes, particularly, pertaining to the judicial orders, their recording and/or subsequent modification. Her repeated visits to the Land Record Centre, unaccompanied by any independent male family members further reinforces the fact that she was neither incapacitated nor entirely dependent upon advice of her male family members in connection with her property rights. In such circumstances, it devoids logic and reason to suggest that she never inquired as to whether the purpose for which she had been engaged with the revenue officials had been achieved or whether any irregularity has been committed. The absence of any such inquiry on her part, despite having direct access to the relevant Land Record Centre, casts serious doubts on the veracity of her claim and weakens any assertion of ignorance, fraud or misrepresentation on part of the petitioner in connivance with the revenue officials.
11. Moreover, the Appellate Court below was duty bound to consider the evidence of both sides in its entirety and thereafter arrive at a finding; however, in present case, the Appellate Court below has appreciated evidence on record with a jaundiced eye. Conversely, the Trial Court has considered the deposition of DWs in a holistic manner. This Court is of the opinion that once the Trial Court exercises its discretion in one way or the other after appreciation of entire evidence and material on record, the Appellate Court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. In present case, the Appellate Court below has placed undue emphasis on the point that the respondent was a housewife and lacked independent advice as the record reflects that the respondent had previously purchased the suit property from her sister, demonstrating that she was actively involved in property transactions. A party who engages in commercial dealings cannot later claim lack of understanding to escape from its contractual obligations. There is no legal requirement that a housewife must obtain independent legal advice before selling property unless undue influence or coercion is proven, which has not been established in this case. It is held that mere fact that the vendor is a villager lady alone cannot be ground for upending the transaction, when both the marginal witnesses have appeared and corroborated the stance of the purchaser, and no connivance of the revenue officials could be established. Therefore, reliance by the Appellate Court below on the ground that independent advice was not available with the respondent at the time of attestation of impugned sale mutations is legally flawed and contrary to the established principles of contract law.
12. In the light of the overwhelming evidence supporting the validity of the transactions, the absence of any substantiated claim of fraud, the respondent's failure to challenge possession of the petitioner over the suit property for two and a half years, and the deliberate withholding of a key witness, it is evident that the findings of the Appellate Court below are not in accordance with law. The Trial Court correctly appreciated the evidence and dismissed the suit, and its decision ought to be restored. Consequently, this civil revision is allowed, the judgment of the Appellate Court below is set aside, and that of the Trial Court is restored.