This civil revision arises out of a suit for declaration filed by respondent Mst. Hakam Bibi on 18th of October, 1983 wherein she challenged the validity of a mutation bearing No.1060 sanctioned on 23rd of October, 1963, whereby she had purportedly sold the land in dispute measuring 18 kanals 15 marlas, situate in Mauza Dhan, Tehsil and District Gujrat to Noor Muhammad petitioner, her step- brother, for a sum of Rs.600. As a consequential relief it was prayed that the respondent be put in possession of the land. The suit was based on the allegations that the respondent inherited this land from her father and after her marriage she shifted her residence to village Islam Garh where after the land was being managed in her absence by Noor Muhammad her step-brother, who had throughout been paying her share in the produce, but about one year before the filing of the suit stopped doing so. According to the respondent it was at that time that she learnt of fraud played by the petitioner by having the land transferred in his favour. She alleged that she had never sold the land in question nor appeared before any Revenue Officer but had been fraudulently deprived of the same by the petitioner.
2. The suit was resisted by the petitioner by filing a written statement in which it was objected that the suit was not within time. On merits it was pleaded that the petitioner had validly purchased the land after paying valuable consideration from Mst. Hakam Bibi respondent and had become owner on the basis of a sale which took place before 20 years before the filing of the suit.
The learned trial Court after framing the necessary issues recorded the evidence of the parties. On 29th January, 1985, the suit was decreed in favour of the respondent and against the petitioner. It was held that the petitioner had failed to prove that any sale took place in his favour. Under issue No.l, regarding limitation, the trial Court observed that it has not been shown as to how and on what basis the suit was not within time. Aggrieved by this decision the petitioner filed an appeal which was dismissed by an Additional district Judge, Gujrat on 14th of May, 1985. The learned lower appellate Court affirmed the findings of the trial Court on issues Nos. 4 and 5. It was held that there was no sale proved on the record in favour of the petitioner. This was the only question examined by the Additional District Judge while disposing of the appeal as it was specifically mentioned in paragraph of the judgment that no other point had been pressed. The petitioner has now come in revision against the judgments, of the two Courts below.
3. Ch. Arshad Mahmood, Advocate learned counsel for the petitioner has firstly contended that the suit was not within time and it was the legal obligation of the lower appellate Court to have examined the question of limitation irrespective of the fact that whether this plea was raised and if raised was not pressed. In this respect, the learned counsel has relied upon the judgment of the Supreme Court in Hakim Muhammad Boota and another v. Habib Ahmad and others PLD 1985 SC
153. Sh. Ziaullah, Advocate, learned counsel for the respondent has, on the other hand, contended that as the plea of limitation was not pressed before the lower appellate Court, it cannot be allowed to be raised in this revision petition.
4. As already observed, it was pleaded in the written statement by the petitioner that the suit was not within time. On this objection issue No.l was framed by the trial Court. This issue was decided against the petitioner by the trial Court and was not pressed at the time of hearing of the appeal as is evident from paragraph 5 of the judgment of the lower appellate Court. In these circumstances, the petitioner cannot as of right raise this question now nor can any grievance be made the point of limitation qua the suit was not examined by the appellate Court. The decision of the Supreme Court in Muhammad Ishaq andothers v. Shah Muhammad and others 1985 SCMR 799 is instructive. It was authoritatively held therein that the appellate or revisional forum is under no legal obligation to examine the plea of limitation relating to the institution of the original suit in trial forum, if it is not raised or pressed. This judgment was followed in the later case of Allah Yar Khan v.
Mst. Sardar Bibi and others 1986 SCMR 1957 wherein it was observed that if the plea of limitation is not pressed before the lower appellate forum, the next higher forum is not compelled to entertain the same at the instance of a party who gave it up before the lower appellate forum. Allah Yar's case was also approved in Muhammad Rafique and others v. Barkat Ali' and others 1988 SCMR 1526 and Dost Muhammad and another v. Momand and another 1989 SCMR 89. The case of Hakim Muhammad Boota and another v. .Habib Ahmad and others PLD 1985 SC 153 was considered by the Supreme Court in Muhammad Rafique's case supra and was distinguished on facts. Even otherwise, the reliance of the learned cousel on Muhammad Boot's case is not'apt and it does not advance his case. What was held in that case was that if from the statement made in the plaint the suit appears to be barred by limitation, the Court is under an obligation to examine the question of limitation even if it had not been raised. However, where limitation is a mixed question of law and fact, not apparent on the face of record it may not be examined. In the present case, it was specifically alleged in the plaint by the respondent that the land was being cultivated by the petitioner on her behalf and he had been paying share in the produce till about one year before the filing of the suit at which time she came to know about the fraud played on her and the cause of action arose in her favour. This factual controversy cannot be resolved in the present proceedings nor can evidence led by the parties be re-examined. As this plea was not pressed before the lower appellate Court, I am not inclined to allow the petitioner to raise it in this revision petition. Even otherwise, as would be presently explained, the plea is without any force.
6. On merits, the learned counsel attempted to challenge the concurrent findings of the two Courts below by arguing that as the mutation in question had been given effect to in Exh.P.l wherein the petitioner was recorded as an owner, it was for the respondent to have proved that she had not sold the land to the petitioner. Admittedly, the plaintiff/respondent, in the present case is an old and illiterate lady. She is the step-sister of the petitioner. She had specifically denied having entered into any transaction of sale or having appeared before the Revenue Officer. She being an old and illiterate woman is entitled to the same protection which is available to Pardahnasheen ladies. In Nur Muhammad v. Mst. C Karim Bibi PLD 1959 Lah. 932 it was observed by this Court that every illiterate , woman whether she is Pardahnasheen or not is protected unless circumstances are brought on the record to show that she was of an exceptional character, well able to manage her affairs. This- protection is afforded on the assumption that Pardahnasheen, old and illiterate women are easily influenced. The presumption applies with greater force in a case where the transaction is between an illiterate lady and a person closely related to her as in the present case where the respondent No.l is her step-brother. In Mumtaz alias Mangta and 2 others v. Nizam Din 1984 CLC 2826 it was held that where the executant of a document is an illiterate lady the burden of proving due execution of such a document lies upon a person who relies upon it. To the same effect are the observations in Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1055 and Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324. In Sree Sree Gopal Jeo Bigraha and others v. Mst. Mahmuda Begum and others PLD 1968 Dacca 265 the rule of law aiming at protection of a Pardanasheen lady was held to be. Equally applicable to ignorant, illiterate and old women even though not strictly Pardahnasheen.
In view of this discussion, it is evident that the burden of proof lay heavily upon the petitioner to have proved that the respondent had of her own fully D understanding the implications entered into the transaction of sale in his favour especially when he being the brother was in a position of active confidence. Reference in this connection may be made to Article 127 of the Qanun-e-- Shahadat,1984.
7. In the present case both the Courts have after duly appraising the evidence have recorded a concurrent finding of fact that no sale in favour of the petitioner stood proved. Such like findings cannot be displaced in the exercise of revisional jurisdiction nor is this Court called upon to re- appraise the evidence. No misreading or non-consideration of material has been pointed out and therefore, there is no justification for interfering in the findings recorded by the two Courts below.
The petitioner in order to prove the sale in his favour had produced two witnesses namely Muhammad Hussain D.W.1 and Mehdi Hassan D.W.2 and appeared himself as D.W.3. The testimony of these two witnesses was F duly considered by the Courts below who after noticing their contradictions refused to rely upon them for valid reasons. Nur Muhammad petitioner D.W.3 had not specifically denied the assertion of the respondent that he had earlier been cultivating the land on behalf on his sister. In these state of affairs it cannot be urged that the judgments of the Courts below suffer from any material irregularity so as to warrant interference by this Court.
For the foregoing reasons this revision petition is dismissed leaving the parties to bear their own costs.