' The petitioner herein has impugned the judgment and decree of the District Judge, Swabi dated 19-12-1991 whereby her appeal against the judgment and decree of Civil Judge, 1st Class, Swabi dated 11-2-1989 was dismissed with costs.
2. Plaintiffs/respondents filed a suit for declaration that they on the basis of agreements deeds dated 7-8-1983 and 12-2-1985 are owners in possession of the land measuring 4 Kanals out of 15 Kanals 9 Marlas bearing Khasra Nos.233 and 234, Khata Nos.58, 59, 77 & 78 and that the defendant/petitioner has no right in the suit land and that Mutation No,1480 entered on 8-7-1984 is liable to be attested. In the alternative they prayed for specific performance of the agreement. The suit was contested by the defendant/petitioner. On the basis of the pleadings of the parties seven issues were framed whereafter the parties led their respective evidence, on the assessment whereof the Civil Judge, 1st Class, Swabi decreed the suit in favour of the plaintiffs/respondents with costs. Feeling aggrieved of the said judgment and decree, the defendant/petitioner filed an appeal which was dismissed by the District judge, Swabi vide his judgment and decree dated 19- 12-1991, hence the present revision petition.
3. Learned counsel for the defendant/petitioner contended that the plaintiffs/respondents failed to establish the alleged deeds whereby the defendant/petitioner entered into an agreement to sell 4 Kanals of land to the plaintiffs/respondents, therefore, the plaintiffs failed to substantiate their claim to the land in dispute. He referred to the evidence produced by the plaintiffs and argued that the perusal of it would show that the defendant/petitioner, a Pardanashin lady, neither thumb- impressed the alleged deeds nor received any sale consideration in presence of any of the P.Ws, hence plaintiff failed to prove the alleged transaction and the execution of the deeds. He also referred to the statement of the defendant which was recorded through Commission at appellate stage and submitted that the lady has categorically denied the sale of the land to the plaintiffs and the execution of the deeds.
4. On the other hand, learned counsel for the plaintiffs/respondents while defending the impugned judgments/decrees contended that Mutation No,1480 was entered on the basis of the said agreement deeds but later on was cancelled. He submitted that the plaintiffs are in possession of the land ever since the execution of the deeds as owners without payment of any lease money to the defendant. He argued that husband of the defendant, marginal witness of the deeds, received the entire sale consideration on her behalf who got her thumb-impression affixed on the deeds which prove the execution of the deeds.
5. Jamrod Khan, Patwari Halqa (P.W.1) stated in cross-examination that according to Kharif, 1983 the plaintiff was recorded as 'Ghair Dakhlikar Bawaja Rishtadari' and as he was not in possession of the Girdawari before Kharif 1983, therefore, he was not in a position to say that as to who was in possession of the land in dispute prior to Kharif 1983. He admitted that Mutation No,1480 was not entered in the Roznamcha Waqiati nor the petitioner visited him for the entry of the mutation.
Shamsher (P.W.2) the scribe of the deed admitted that the deed was written in absence of the executant and was taken to her house for thumb-impression. He stated that nothing was paid in his presence to the executant and the deed was scribed at the instance of the person who was present in the Baithak of Keyash Khan. Khan Sher (P.W.3) plaintiff stated that he purchased the land for Rs,28,500 and paid the amount in presence of Fazal Hakim and Muhammad Zaman and was in possession of the land as lessee prior to the execution of the said deed.
' In cross-examination he admitted that the amount of Rs,28,500 was paid to Muhammad Zaman and again stated that it was paid to Fazal Hakim who onward paid the same to Muhammad Zaman. He also admitted that Mst. Amazai used to observe Parda from him and he did not know whether Muhammad Zaman was holding power of attorney on her behalf or not. Fazal Hakim (P.W.4) stated that land in dispute was sold by Muhammad Zaman and Khan Farash to the plaintiffs who took the money to their house to pay the same to the defendant. In cross- examination he admitted that he did not accompany Muhammad Zaman to his house for obtaining thumb-impression on the deed and he was told by Zaman and Khan Farash that Mst.
Amazai had affixed her thumb-impression on the deed. As against this, Janullah as attorney appeared on behalf of Mst. Amazai defendant who categorically denied the execution of any agreement to sell in favour of the plaintiffs. In appeal the Appellate Court deemed it necessary to record the petitioner's statement who was examined through Commission wherein she unequivocally denied the execution of any title deed in favour of the plaintiffs.
6. The perusal of the evidence manifest that the plaintiffs/respondents awfully failed to establish their claim through any cogent evidence as the witnesses produced by them could not establish the execution of the alleged deeds by Mst. Amazai or by her authorised agent. Fazal Hakim (P.W.4) marginal witness of the deed in unimbiguous words stated that the land in dispute was sold by Muhammad Zaman and Khan Farash to the plaintiffs. There is nothing on the record to suggest that the petitioner herself was a party to the transaction as she neither negotiated the sale or entered into any agreement to sell her property to the plaintiffs nor she received any sale consideration. The Courts have to be very cautious while dealing with the documents purportedly executed by Pardanashin lady. It is settled law that a document purportedly executed by an illiterate Pardanashin lady has to be proved beyond any shadow of doubt by the person who relies upon such document. Both the Courts below by placing the onus of proof upon the defendant committed material illegality and irregularity and misread the evidence by holding that the alleged deeds were duly executed by the defendant. The Court has to satisfy that the document executed by the illiterate Pardanashin lady was within her full knowledge and comprehension about its subject-matter and that she understood about the nature and effect of the transaction with independent application of mind and the execution of such document was independent and voluntary, and if these ingredients are not there, then the document would not be deemed to be genuine. In the present case, the plaintiffs awfully failed to establish the alleged deeds that they were independently and with complete knowledge about the subject-matter were executed by the defendant herself. As a matter of fact the said deeds are not sale-deeds at all and they could not confer any title upon the plaintiffs as to documents are agreement to sell 4 Kanals of land, as such the plaintiffs could not claim or assert that they have become owners of the land on the basis of the said documents. The entries in the revenue record on which reliance was placed do not render any help to them as Patwari himself has admitted in his statement that the lady never appeared before him for the entry of mutation in favour of the plaintiffs and it is no where available as to at whose instance the mutation was entered on the basis of the said documents.
7. The upshot of the above discussion is that the plaintiffs have failed to establish their claim, therefore, this revision petition is accepted, the judgments and decrees of both the lower Courts are set aside and the suit of the plaintiffs/respondents is dismissed with costs throughout.