This judgment shall dispose of Civil Revision No.609/D of 1989/BWP and Civil Revision No.434/D of 1994/BWP as they involve common questions of law. And fact regarding the same land.
2. The dispute involved in these revision petitions is in respect of a land measuring 180 Kanals and 6 Marlas situated at Mauza Behani, Tehsil Hasilpur (now Tehsil Khairpur Tamewali), District Bahawalpur. It was allotted to late Mst. Roshan Bibi widow of late Ghulam Nabi, a refugee from Fatehabad, District Hisar (India) in satisfaction of her claim from India. Upon the death of Mst.
Roshan Bibi, the entire property devolved on Khurshid Ahmad son of Noor Bakhsh-respondent No. 14 as her legal heir who sold out the same to respondents Nos. 16 to 21 on 12-2-1989.
3: The predecessors-in-interest of respondents Nos. l to 13 filed a civil suit against late Mst. Roshan Bibi, the predecessor-in-interest of respondent No. 14, for declaration with consequential relief in the Court of learned Civil Judge list Class, Hasilpur. They claimed to be the owner of 3/4th of the disputed land being collaterals/reversionaries of late Ghulam Nabi and that disputed land was held by late Mst. Roshan Bibi as a limited owner being widow of said late Ghulam Nabi. Late Mst.
Roshan Bibi took the position that she was the full owner of the property left by her in India which had been gifted to her, by her late husband in lieu of dower, before partition. The learned Civil.
Judge framed as many as eight issues. The civil suit of the predecessor-in-interest of respondents Nos. l to 13 was dismissed by the learned Civil Court. The appeal by the predecessor-in-interest of respondents Nos.1 to 13 was accepted by the judgment and decree, dated 17-12-1979 passed by the learned Additional District Judge, Bahawalpur. The case was remanded by framing certain issues to be decided by the learned Civil Court. It was during the course of the hearing of the appeal by the appellate Court that the present petitioners moved an application that they were in possession of the suit property under an agreement to sell, dated 2-4-1973 by late Mst. Roshan Bibi in consideration of Rs.85,000 out of which Rs.40,000 were paid on the same day. The petitioners were, therefore, impleaded by the learned District Judge, Bahawalpur, as defendants. After the remand of the case, the learned Civil Court framed additional Issues Nos.7, 8 and 9 on 26-10-1981. Another Issue No.2-A was framed on 5-3-1988 which was recast on 27-7-1988. Yet another Issue No.9-A was framed on 27-7-1988. The civil suit of the predecessor-in-interest of respondents Nos. l to 13 was again dismissed by the learned Civil Judge, Hasilpur, vide judgment and decree, dated 29-1-1989.
Mst. Roshan Bibi was declared to be full owner of the property in dispute. It was further found that respondent No. 14 was the legal heir and successor-in-interest of lat Mst. Roshan Bibi who had passed away in the meantime. The petitioners were not granted any relief regarding- the alleged agreement to sell and Issue No.9-A was decided accordingly as the petitioners could file a civil suit.
The petitioners as well as respondents Nos. l to 13 filed separate appeals, which were dismissed by the impugned judgment and decree, dated 22-I1-1989 passed by the learned Additional District Judge, Bahawalpur.
4. The facts in the connected Civil Revision No.434-D of 1994/BWP are that a civil. Suit for declaration and specific performance was instituted by the petitioners on 8-2-1989 claiming that late Mst. Roshan Bibi had duly executed an agreement to sell the disputed property on 2-4-1973 on receipt of Rs.40,000 out of the total consideration amount of Rs.85,000 and that respondent No. 14 was required to execute the sale-deed. The civil suit of the petitioners was dismissed by the impugned judgment and decree, dated 5-9-1993 passed by the learned Civil Judge 1st Class, Bahawalpur. The appeal of the petitioners was also dismissed by the impugned judgment and decree, dated 31-1-1994 passed by the learned District Judge, Bahawalpur.
5. The learned counsel for the petitioners argued that there was misreading of evidence on Issue No.9-A. The original document Exh.D.1 (agreement to sell) had been duly proved without any objection from the other side. A reference was made to the statements of late Mst. Roshan Bibi as D.W.3 and Muhammad Anwar D.W.6. It was further submitted that a registered general power of attorney Exh.C.l executed on 24-7-1973 by late Mst. Roshan Bibi in favour of respondent No.14, which was registered on 25-7-1973. It sufficiently proved that late Mst. Roshan Bibi had agreed to sell the property in dispute to the petitioners. The provisions of Article 79 of .The Qanun-e-Shahadat, 1984, were not applicable retrospectively. Reference was made to section 68 bf the Evidence Act, 1872, that the agreement to sell was not required to be attested by any witnesses. Reliance was placed on the cases of Maharaja of Faridkot State v. Anant Ram and others AIR 1929 Lah. 1 (D.B.) and Sardar Bakhsh v. Mst. Maqsood Bibi PLD 1994 Lah. 452. The learned counsel emphasised that the findings of both the Courts below on Issue No.9-A were irregular and illegal in so far as the question of the valid execution of the agreement to sell by late Mst. Roshan Bibi in favour of the petitioners and the receipt of earnest money was concerned. In any case, the protection of the provisions of section 53-A of the Transfer of Property Act, was available to the petitioners as they were in possession of the suit land under the agreement to sell. Reference was made to the cases of Abdul Ghani Khan v.
Dino Bandhu Adhikari and another PLD 1963 Dacca 777 and Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456.
6. On the other hand, both the learned counsel for the vendees/respondents Nos. 16 to 21 argued that the said respondents had purchased the property in dispute on payment of the stipulated consideration, The civil suit by the petitioners forming subject-matter of Civil Revision No.434-D of 1994/BWP was barred by time. The earlier statement of late Mst. Roshan Bibi could not be considered for the purposes of the subsequent suit filed by the petitioners. The subsequent suit of the petitioners was also badly time-barred. The concurrent findings of fact had been recorded in both the cases. The petitioners were already tenants of the land and could not claim any protection in terms of section 53-A of the Transfer of Property Act under any agreement to sell. It was lastly submitted that respondents Nos.16 to 21 were not party until 1989 and as such there was no estopped against them.
7. I have heard the learned counsel for the parties at length. I find that in both the suits all the Courts below have recorded their concurrent findings of fact against the petitioners. D.W.8 Muhammad Shafi and D.W.10 Khuda Bakhsh of the petitioners stated that they were not present when the agreement to sell (Exh.D.1), dated 4-7-1973 was written. D.W.10 Khuda Bakhsh was a marginal witness to the said agreement to sell. Muhammad Anwar D.W.6 in the earlier suit stated that lie could not say if the agreement to sell was executed at the instance of late Mst. Roshan Bibi or some other lady. None of the marginal witnesses of the agreement to sell supported the case of the petitioners in either of the civil suits. Name of D.W:10 Khuda Bakhsh was written but his thumb-- impression was not obtained on EXh.D.1.
8. In the subsequent civil suit filed by the petitioners, P.W.2 Asmatullah, the stamp-vendor, appeared for the petitioners and stated that late Mst. Roshan Bibi had disclosed to him that she was not selling her land. He further stated that Karim Bakhsh and his companions told him that late Mst. Roshan Bibi had executed a document in order to defend a case against her. P.W.3, a brother of the petition-writer late Muhammad Anwar, placed on record copies of the Register of the petitions Exhs.P.2 and P.4. He admitted that name of Mst. Noor Jehan Begum Amir of Bahawaipur was written. A perusal of the said exhibits would show that at Serial Nos.247 and 248 there were two thumb-impressions of Mst. Noor Jehan Begum and two names were written over the said thumb-- -impressions on the last column of Serial Nos.247 and 248 indicating the execution of two applications addressed to the Commissioner and Deputy Commissioner. The entries at Serial No.248 regarding the disputed agreement to sell appeared to be ante-dated with a double thumb-impressions. P.W.3 had to admit that it was the thumb-impression of Mst. Noor Jehan Begum against entry at Serial No.248. Muhammad Bakhsh and Hafiz Khuda Bakhsh, the marginal witnesses of the agreement to sell, appeared as P.W.1 and P.W.2 respectively. Both these P.Ws.
Stated that they*.Did not know about the sale transaction between the petitioners and late Mst.
Roshan Bibi. The evidence of P.W.7 Muhammad Siddiq, Advocate, also showed that there was already another case titled Saeed Ahmad v. Mst. Roshan Bibi etc. In which a Wakalatnama Exh.D.1 had been executed by Mst. Roshan Bibi, Karim Bakhsh and Allah Ditta Exh.D.3 also indicates that Allah Ditta-petitioner No.2 had submitted an affidavit in the said case that he was in possession of the suit property as a tenant. The affidavit Exh.D.5 of the petitioner-Allah Ditta is also to the effect that no price had been paid to late Mst. Roshan Bibi in respect of land in dispute. Exh.D.6 by late Mst. Roshan Bibi is to the effect that the alleged agreement to sell was a fictitious document. In this suit, the marginal witnesses of the agreement to sell were not examined by the petitioners.
Moreover, Allah Bakhsh alias Falak Sher respondent No.15 in whose favour the alleged disputed agreement to sell was shown to have been executed also filed his written statement categorically admitting therein that the said document was a fictitious and a false one. He stated that neither he nor the petitioners had made payment of any consideration amount to late Mst. Roshan Bibi who was an illiterate lady and that the petitioners wanted to deprive her of her property. The civil suit was filed on 8-2-1989 in respect of a cause of action, even if any, having arisen as back as in 1973.
The same was rightly held by the Courts below to be time-barred.
9. In the matter of the agreements or transactions of sale with illiterate Pardahnashin ladies, a much care and caution has to be taken by the Courts as I p they deserve special protection. In the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the Honourable Supreme Court held that even if all the conditions for a valid transfer under the existing set and system of laws, after the due accrual of inheritance are satisfied, the protection afforded by section 16 of the Contract Act against undue influence, to Pardanashin ladies and others similarly placed parties and entrenched in the case-law as also available under the Islamic Law, already discussed, would require so many conditions to be satisfied. Admittedly, in such-like cases, the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the State and status of the alienor. In another case reported as Mst. Fazal Jan. v. Roshan Din and 2 others PLD 1990 661, it was held that the protection to the women as provided by fundamental rights contained in clause (3) of Article 25 of the Constitution does not only mean the protection of the body but also the rights which include property rights. The principles were further elaborated by the Honourable Supreme Court in the case of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 at page 419. It has been observed that the protection of illiterate poor women in rural society and promotion of social justice and eradication of social evils in rural areas in accordance with tenants of Islam is essential.
Certain directions were also given by the Honourable Supreme Court for initiating social uplift programme in rural areas to ameliorate the miserable plight of the poor illiterate classes of people living there especially of their women-folk in the light of the Islamic Injunctions. Similar view was taken in the cases Muhammad Hashim and others v. Arshad laved (Irshad Javaid) and another 1991 MLD 986, Ahmad Hussain Shah v. Mst. Taj Bibi and another 1993 CLC 2152, Mst. Siddiqan and another v. Muhammad Ibrahim and another 1993 MLD 1979 and Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 205.
10. The question as to whether or not the agreement to sell was required to be attested by the witnesses had lost much significance in the present case. In this case, the marginal witnesses had been mentioned in the alleged agreement to sell and the receipt who did not support the petitioners. Even Allah Ditta one of the co-vendees of the petitioners also disowned the agreement to sell. There is evidence on record that the petitioners were already tenants over the disputed land. They cannot claim any protection of section 53-A of the Transfer of B Property Act particularly when they have failed to prove the possession of the land pursuant to the alleged agreement to sell. In the case of Muhammad Idrees v. Additional District Judge, Lahore and others 1986 SCMR 981, it was held that a tenant even if having entered into agreement to sell of the suit property could not claim protection under section 53-A of the Transfer of Property Act as such a person could not be said to have entered into possession of the property in terms of the contract or agreement. In the cases of Ch. Nasrullah Khan v. Muhammad Ramzan and others 1991 CLC 104 and Abdul Hamid v.
Suhrab through Legal Heirs PLD 1997 Kar. 589, it was observed that where neither the agreement to sell nor payment of consideration had been satisfactorily established and the evidence of the plaintiffs was contradictory, the concurrent findings recorded by the Courts below were not to be ordinarily interfered with in reversional jurisdiction. In this case, the petitioners have failed to point out any illegality or material irregularity committed by the Courts below in the exercise of their jurisdiction. The impugned judgments and decree have not resulted in any miscarriage of justice and do not call for any interference.
11. For the foregoing reasons, I- do not find any merit in these revision petitions, which are dismissed with no order as to costs.