JUDGMENT SAEED-UR-REHMAN FARRUKH, J. - The brief facts forming the background of this case are; a declaratory suit was filed by the petitioner to the effect that, general power of attorney dated 18.3.1991 purportedly executed by her in favour of respondent No. 1 was the outcome of fraud and forgery and as such not binding on her and the registered sale deed attested on the strength of the said power of attorney in respect of her land measuring 18 kanals 14 marks in favour of respondent No. 2 was ineffective on her ownership rights in the said land.
It was averred that the petitioner was asked to execute general power of attorney in favour of respondent No. 1 to enable him to prosecute a preemption sit and it is for this specific purpose that she appeared before the Sub-Registrar and got the same attested. However, it later on transpired that respondent No. 1 in collusion with Muhammad Ismail, uncle of the petitioner got the disputed power to grab her land. Immediately, on this closure, she appeared before Sub-Registrar on 22.4.1991 and got registered a revocation deed. It was asserted that by misusing the disputed power of attorney, respondent No. 1 sold the suit lady in favour of respondent No. 2. According to her, she was a rustic, illiterate and pardah nasheen lady and had been duped.
2. The suit was resisted and the assertion of the petitioner that the power of attorney was the outcome of fraud and misrepresentation was vehemently denied. Necessary issues arising out of the pleadings of the parties were framed and the learned Civil Judge proceeded to record evidence.
3. Maqsood Ahmad PW. 1 appeared in the witness box and deposed that in his presence Ismail and Allah Ditta alongwith another person visited their village and on his inquiry, he was informed by Sadiq, husband of the petitioner that they had come to secure a power of attorney for the purpose of defending a civil suit. Muhammad Sadiq, husband of the petitioner appeared as PW. 2.
According to him the petitioner had instituted a pre-emption suit which was dismissed due to change in law and about two years ago, the power of attorney was obtained from his wife on the pretext of making efforts to seek restoration of the said suit. He deposed that both he and the petitioner were illiterate and the contents of power of attorney were not read over to them. The petitioner appeared as PW.3 and deposed that she had executed power of attorney in connection with the pre-emption suit She also stated that the power of attorney was not read over to her and its contents were not disclosed.
In their evidence, respondents produced Allah Ditta DW.
1. He is a marginal witness to the general power of attorney and according to him, it has been executed for the purpose of sale of the land in dispute. He did not utter a word as to whether or not, the contents of the general power of attorney were road out to the petitioner. Muhammad Ashraf, vendee of the suit land, deposed about having purchased the same for sum of Rs. 85,000/-.
4. After conclusion of the trial, learned Civil Judge came to the conclusion t hat the power of attorney in question was not the outcome of fraud and it has been validly executed by the petitioner for sale of the property in question. He accordingly dismissed the suit. The appeal filed by the petitioner was dismissed by learned Addl. District Judge on 4.2.1996. Hence this revision petition.
5. It is contended by learned counsel for the petitioner that she was an illiterate pardah observing lady and heavy onus lay on the respondents to prove that at the time of execution of the power of attorney independent advice was available to her and that contents of the said document were read out to her. It is also urged that there is nothing on record to prove that sale proceeds were passed on to the petitioner.
6. On the other hand, learned counsel for the respondents has pleaded that there are concurrent findings of fact recorded by two learned Courts below which are based on evidence and no justification exists in law ti upset the same in revisional jurisdiction.
7. From the perusal of the evidence and material on record certain facts stand established:-
(i) the petitioner is an illiterate pardah observing lady, f ii) ( lie contents of power of attorney were read out to her at the time of attestation and no independent advice was available to her,
(iii) there is no evidence that the sale proceeds were received by her, and
(iv) the general attorney was a total stranger.
8. Keeping in view the above proved facts, the question that emerges for determination is as to whether in such a situation, the two learned Courts below have acted in accordance with law in non-suiting the petitioner. Their lordships of the Supreme Court have in Jannat Bibi Vs. Sikandar Ali and others (PLD 1990 S.C. 642) laid down law on the point on the following terms:- "Il is well-settled that the question whether a lady is a Pardahnashin lady is a question of fact (See Bank of Khulna Ltd. Vs. Dyoti Prokash Mitra and others, AIR 1940 Privy Council 147). It is also well- settled that the burden of proof in respect of a document purported to have been executed by a Pardahnashin woman affecting her right or interest in the immovable property is on the person claiming the right or interest under the document.
It. Is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read over to her."
It is thus ciser that both the learned Courts below in the face of the proved facts, noted above, acted illegally in failing to follow the law as laid down in Jannat. Bibi's case supra 5.
9. That is not all. Both the learned Courts below also have failed to draw the necessary adverse inference against the respondents due to non- production of the Sub-Registrar as witness. The only presumption that could have been drawn was that had he been produced, he would have not supported the respondents on the question of reading out the contents of the document and making her understand the same. This is yet another error apparent on the fact of the record.
10. No reason is forthcoming as to why the petitioner in the presence of her husband would have granted the general power of attorney in favour of a total stranger.
11. For what has been stated above, the judgments impugned in this revision petition are not sustainable in law and the same are set aside. The net result is that the suit of the petitioner is decreed as prayed for with costs.