' This second appeal was directed against the judgment, dated 11-3-1971 of the learned Additional District Judge, Lahore, Camp at Kasur, whereby the appeal of the appellants was dismissed and judgment and decree, dated 2-4-1970 of the learned Civil Judge decreeing the suit of the respondent-plaintiff was upheld and affirmed.
2. The necessary facts briefly stated are that the suit land was sold by Kala alias Hassan Khan in favour of appellants through a registered sale-deed attested on 13-8-1968 for a consideration of Rs,5,000 which amount as per the entries of the sale-deed was paid before the Sub-Registrar, Kasur at the time of attestation of sale-deed. Kala alias Hassan Khan plaintiff filed a suit against the appellants-defendants through his next friend Dhanmat, his real brother, challenging the sale with the assertion that the same was void ab initio as the plaintiff was of unsound mind, and for declaration to the effect that the impugned sale was illegal, null and void and ineffective against the rights of the plaintiff. He also prayed for the grant of permanent injunction restraining the appellants from declaring that they were the owners of the land in dispute as well as restraining them from transferring the said land to anybody and from receiving the produce thereof. The defendants-appellants resisted the suit on the ground that the plaintiff possessed sound mind at the time of the disputed transaction and had validly executed the registered sale-deed and that the suit filed at the instance of the next friend was not bona fide and as such plaintiff had no cause of action to bring the suit. The learned trial Court framed as many as four issues arising out of the pleadings of both the parties, and after recording the evidence of the parties decreed the suit vide judgment and decree, dated 2-4-1970. The pertinent issue is Issue No,1 which reads as under: "Whether the plaintiff/respondent was insane at the time of impugned sale? O.P."
3. The learned trial Court took into consideration the fact that the sale in dispute had taken place on 13-8-1968 and just after one month of the sale, plaintiff was admitted to mental hospital. The Board of Doctors after examination on 18-11-1968 recorded the following opinion:-- "He is mentally defective and unable to look after himself."
4. The learned trial Judge observed that this aspect of the matter is enough to carefully scrutinise the mental health of plaintiff at the time of disputed transaction and that after this opinion of experts on the mental disability of plaintiff, the defendants should have brought strong evidence to show that they had entered into deal when the vendor was of sound mind. The other reasons given by the learned trial Judge will be noticed in the later part of this judgment. This judgment and decree of the trial Court was challenged in appeal and the learned appellate Court dismissed the appeal on 11-3-1971 and the same was then challenged in the present second appeal.
5. I have heard the learned counsel for the parties and have also gone through the evidence on record. Learned counsel for the appellants submitted that the learned Courts below erred in law in assuming that the plaintiff-respondent was not of sound mind when the transaction evidenced by registered sale-deed registered on 13-8-1968 was entered into as the doctors found the plaintiff insane on 18-11-1968. Next it was contended that neither the trial Court nor the learned Additional District Judge examined the entire documentary evidence comprising of Exhs. D.3 to D.6 and that the finding that the plaintiff was of unsound mind since his childhood has been recorded ignoring the said evidence, the same is not sacrosanct. He argued that the close scrutiny of the entire evidence on record would sufficiently rebut the conclusions arrived at by both the Courts below.
6. Learned counsel for respondent-plaintiff on the other hand argued that the conclusions recorded by both the Courts below are conclusions of fact and as these are concurrent, the same are not liable to be interfered with in second appeal. In support of this, learned counsel relied on certain precedents which were to the effect that finding of fact howsoever erroneous, is not to be interfered with in the second appeal. The rule of law relied upon by the learned counsel for the respondent is well settled. The question is whether the findings recorded by the learned Courts below were arrived at reasonably and fairly, after examination of the entire material on record.
Unfortunately, neither the learned trial Court nor the appellate Court examined the entire evidence on record what to say of their examination in true perspective.
7. The first conclusion drawn by the learned trial Judge was that the certificate issued after examination of plaintiff just after one month of sale is enough to carefully scrutinise the mental health of plaintiff at the time of disputed transaction. Learned counsel was not able to support this conclusion as obviously no such presumption can be drawn. If a person is found to be of unsound mind, it does not necessarily follow that he wad also of unsound mind one month earlier. Learned counsel faced with this situation submitted that the other evidence about the mental health of the respondent-plaintiff was produced and the same has been relied upon and accepted. Admittedly, this evidence comprises of the sole statement of Dhanmat, the real brother and next friend of the plaintiff. It is true that Dhanmat P.W.1 in his examination-inchief stated that Kala alias Hassan Khan was of unsound mind since his childhood, but he stands contradicted by his own conduct as well as by the conduct of Kala alias Hassan, plaintiff. Moreover, this bald assertion of Dhanmat P.W. Was sought tq be rebutted by the oral evidence of D.W.2 and the documentary evidence, viz. The two mutations Exhs.D3 and Exh.D4. These two mutations were, however, attested on one and the same date i,e, 23rd May, 1968. Vide mutation dated 23rd May, 1968, Dhanmat and Kala alias Hassan Khan got the mutation of sale sanctioned by appearing before the Revenue Officer. This mutation Exh.D3 was brushed aside by the learned trial Judge with the observation that Exh.D3 would show that Hassan Khan i,e, plaintiff did not enter into sale independently and the statement of his next friend as P.W. Appears to be true that the transactions entered into by the plaintiff were vouchsafed by him. Nothing of the sort can be culled out from the mutation Exh.D3 as Dhanmat and Hassan Khan both appeared in their own right. It, therefore, cannot be said that Hassan Khan did not appear independently. The other mutation is Exh.D4 and at the time of its sanction Kala alias Hassan Khan alone appeared, acknowledged the receipt of consideration and thus independently acted and got the mutation sanctioned. This mutation has not at all been referred to by the learned trial Court in the impugned judgment. There are two other documents Exh.D5, the special power of attorney attested by Notary Public and Exh.D6 the sale-deed which is in dispute in the suit. Kala alias Hassan Khan as per the endorsement of this deed appeared himself before the Sub-Registrar and received the total amount of consideration before the, Sub-Registrar. The next friend did not say even a word about the appearance of Kala before the Sub-Registrar in his statement. The learned District Judge did not at all examine these documents in the impugned judgment. It appears that he was not conscious that these documents are on record. Despite the aforenoted evidence on record, it was observed that no cogent evidence was produced in rebuttal. The observation of learned Additional District Judge that no marginal witness of the sale-deed was produced as a witness is also incorrect as Sardar Muhammad D.W.2 had appeared and deposed about the registration of the deed. Had the above-noted evidence been considered by both the learned Courts below, the conclusions that were arrived at would not have been reasonably and fairly drawn. Firstly, the presumption which was sought to be drawn from the certificate of the Board of Doctors was not available. Secondly, the assertion of the next friend P.W. That Kala plaintiff was insane since childhood stands rebutted from the documents available on record i,e, Exhs. D3 and D4. These sales (Exhs.D3 and D4) appear not to have been challenged. If Kala plaintiff was of sound mind in, the month of May, it cannot be presumed that he lost his senses in the month of August, 1968, when he entered into the sale transaction evidenced by sale-deed dated 13-8-1968. The certificate mark 'A' which was admitted into evidence would only show that Kala was insane when he was examined.
8. In view of the aforenoted discussion, the conclusions arrived at by both the Courts below are arbitrary having been drawn without considering the evidence on record.
9. For the reasons given above, the findings of both the Courts below on Issue No,1 are reversed and it is held that the plaintiff has failed to discharge the burden of this issue and as such the Issue No,1 is decided against the plaintiff. Net result of the above discussion is that this appeal succeeds and the C same is accepted. The judgments of both the learned Courts below are hereby set aside and the suit of the plaintiff is hereby dismissed. Parties are left to bear their own costs.