Briefly stated the facts necessary for the disposal of this revision petition are that Mst. Bakhtawar, predecessor-in-interest of respondents Nos. l to 5/plaintiffs Nos. And Mst. Jindan, respondent No.6, filed a suit for declaration wherein it was claimed that after the death of their father Ahmad they became the owners in possession of the suit property and the adverse entries in Mutation No.4711 dated 30-9-1947, Mutation No. 1280 dated 17-10-1947 and the revenue record were false, forged and collusive. They maintained that they never appeared before the Revenue Officer to make a statement. In fact Allah Ditta who was their real brother manoeuvred to transfer the land in favour of the petitioners who were his sons. It was further averred that they knew this fact about 5/6 months prior to the institution of the suit titled "Hafiz Haji Muhammad and 4 others v. The Province of Punjab and 5 others", filed by the present petitioners against the respondents wherein they falsely claimed that they were legal heirs of Buddah to the exclusion of the respondents whereas the fact of the matter was that aforesaid Buddah was the real brother of the respondents. The suit was contested amongst other on the plea that it was not maintainable in that form, it was barred by time and that the petitioners were estopped to bring the suit. The following issues were framed which fully reflected the pleadings of the parties:--
(1) Whether the plaintiffs are owners in possession of disputed property and the adverse entries in revenue record are false, fictitious and void? OPP.
(2) Whether the plaintiffs are Pardanashin ladies? If so, its effect? OPP.
(3) Whether the impugned Mutation No.4711 dated 30-9-1947 of Mauza Gadai Shumali and Mutation No.1280 dated 17-10-1947 of Mauza Gadai Gharbi were validly attested in favour of the defendants? OPD.
(4) Whether the suit is barred by time? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the plaintiffs have got no cause of action to bring this suit? OPD.
(7) Whether the plaintiffs are estopped to file this suit by their words and conduct? OPD.
(8) Whether the defendants are entitled to special costs? OPD.
(9) Relief.
2. The learned trial Court found Issues Nos. 1 and 2 against the respondents/plaintiffs whereas Issues Nos.3 to 7 were in favour of the petitioners/defendants.
3. Ghulam Farid son of Bakhtawar, special attorney of the plaintiffs appeared as P.W.1. The plaintiffs also tendered in evidence documents Exhs.P-1 to P-11. The defendants in their evidence produced Ranjha D.W.1, Muhammad Fateh D.W.2, one of the defendants Haji Faiz Muhammad examined himself as D. W.3. The defendants also tendered in evidence documents Exhs. D 1 to D18 and closed the evidence.
4. The learned trial Court after hearing the parties dismissed the plaintiffs' suit. Feeling aggrieved they filed an appeal which was entrusted to learned, Additional District Judge who vide accepting the appeal set aside the judgment and decree of the trial Court and decreed the suit of the respondents/plaintiffs. Hence this revision.
5. Learned counsel for the petitioners/defendants submitted that the judgment and decree passed by the learned Additional District Judge was liable to be set aside on the following grounds:--
(1) That the suit was hopelessly time-barred as it was filed after the lapse of about 45 years of the attestation of impugned mutations although during the consolidation proceedings in 1963 respondents fully knew that they were no more owners of the suit land and the suit, therefore, should have been filed under Article 120 of the Limitation Act within 6 years of the date of knowledge.
(2) That the respondents were estopped to bring the suit as they did not demand any compensation when some land was acquired out of the joint possession of the parties by the Atomic Energy Commission.
(3) That the respondents were not Pardanashin ladies but it was wrongly held so by the learned Appellate Court and, therefore, the appellants were not obliged to produce the evidence of that standard which was necessary in such cases.
6. I am of the opinion that the objection raised above were quite misconceived. Since the respondents were illiterate villagers they could be easily construed as Pardanashin ladies but the learned trial Court held them otherwise on some flimsy grounds. The fact that the respondents worked in the fields or took the meals to the male members of their family did not deprive them of that status.
7. The onus probandi of Issue No.3 was on the petitioners. The defendants failed to produce direct or the best evidence. Admittedly D.W.1 and D.W.2 were not present when the mutation was sanctioned and so was the case with D.W.3 who was one of the defendants. The defendants failed to produce either Halqa Patwari who entered the mutation or the Revenue Officer who attested the same. No reason was furnished for their non-production. It will be advantageous to reproduce the following observations made in Shamsuddin v. Mst. Jewan, etc. (NLR 1984 Civil 529).
"If for the sake of arguments, it is assumed that they had not participated in produce, that alone would not constitute conscious relinquishment. It is worth notice that the petitioner/defendant did not plead any adverse possession. As for the case-law relied on by the learned counsel, that is quite distinguishable inasmuch as in the instant case, the plaintiffs/respondents not only asserted joint possession of the suit land but also claimed ' Tasarruf' over the same. Blaming petitioner/defendant of misrepresentation, they specifically stated in the plaint that cause of action arose six months before the filing of the suit. It is well-settled that even last attack on the right of plaintiff would give them fresh cause of action for the purpose of limitation and that they may file suit for declaration within six years of last attack on his rights under Article 120.Of Limitation Act. Furthermore it is a case where real and substantial justice has been done by the learned DistrictJudge according to law."
8. In the present case, last attack on the rights of the plaintiffs was made 5/6 months prior to the institution of the abovementioned suit as such the suit is well within time. It was settled that when an alleged donor was a Pardanashin lady the onus became heavier to prove the factum of transaction. Reference can be made to Fateh Sher and another v. Sharif Khatoon and 3 others (1986 CLC 320), wherein it was held:-- "We cannot also loose/sight of the fact that the donors in this case are illiterate peasant women.
They are sisters of the donees and are thus so related to them. 1n the case of a gift allegedly made by them strictest proof of the factum of gift has to be insisted upon. The petitioners unfortunately have not been able to lead evidence of that standard."
"The learned counsel has referred to PLD 1985 Karachi 431 and PLD 1967 Karachi 329, there can be no cavil with the proposition of the law that where a Pardanashin illiterate lady denies the contents of a document signed by her then the burden is upon the person who takes advantage of that document, to prove that she had full knowledge of the contents of these documenis."
Reference can also be made to Tamijur Rehman v. MD. Akhtar Rahman and others (PLD 1970 Dacca 604), wherein it was observed:-- "Now the claim of the present suit is for setting aside the Kabala on the ground of fraud and undue influence. In a case for setting aside a Kabala in which the executant is a Pardanashin lady, the onus heavily lies on the person who claims interest through the disputed Kabala to prove that it was duly executed by the executant, that is, in the present case by Ashrafjan. On the point whether the document was read over and explained to the executant Ashrafjan, the evidence of D.Ws.2, 4 and 7 are relevant. "
Dealing with the same subject, the following observations were made in National Bank of Pakistan v. Mst. Hajra Bai and 2 others (PLD 1985 Karachi 431): "In fact the protective cloak is available to Paradanashin lady mere because of lack of understanding and appreciation on her part than for merely observing Parda. It is quite possible that a woman belonging to a Pardanashin class may possess sufficient intelligence to understand the contents of the document to which she is party despite the restraints of Parda. Conversely there can be an illiterate woman totally devoid of understanding but not observing Parda.
Therefore, the criterion cannot be the social status in the Parda class but the liability to comprehend the contents of the document in question. The emphasis is on reference to the individual concerned and not upon presumptive disability incidental to mere status. In the instant case even if the ladies-respondents are held not to be Pardanashin ladies, still we are convinced from the evidence on record that both the ladies were illiterate at the relevant time. They know only how to sign but that too in Gujrati. This being so, the burden lay heavily on the appellant-Bank to prove that not only the ladies-respondents executed the documents in question but also fully understood their contents. "
9. From the evidence produced by the petitioners it can be safely concluded that the petitioners failed to prove that the land in dispute was gifted to them by Mst. Bakhtawar and Mst. Jindan because the same was vague and scanty and no reliance could be place upon it. There was no cogent evidence on the record to believe that the petitioners were aware of the fact that some land out of the joint ownership was acquired by Atomic Energy Commission. Similarly there was no material that respondents participated in the above--mentioned consolidation proceedings.
10. Under these circumstances, this revision petition fails. The judgment and decree passed by the learned Additional District Judge is hereby affirmed leaving the parties to bear their own costs.