' On 16-11-1970 one Mst. Bevi (now deceased and represented by her legal heirs) filed a suit against the respondents seeking declaration to the effect that she did not sell her land described on the face of the plaint nor she ever appeared before Mr. Islam Bhatti, Senior Civil Judge, Sargodha on 17- 10-1970. Mst. Bevi claimed herself to be deaf and dumb and claimed the decree passed by that learned Court was illegal and a result of impersonation. The cancellation of the said decree was sought as consequential relief. The defendant resisted the suit and claimed that plaintiff alongwith the present defendant No.2 sold their land-for a total consideration of Rs,1,03,000 and that both of them appeared before the said Civil Court which passed a decree on 17-10-1970. In that suit filed on 23-9-1970 the present defendant No.1 Ahmed Yar had sought a declaration against defendant No.2 Mst. Bano and plaintiff Mst. Bevi that he had purchased the land described in the plaint for the said consideration and was thereafter in possession of the same as an owner. The impugned decree of the Civil Court and whole of the proceedings culminating therein were supported. It was also submitted that Muhammad Hayat husband of the plaintiff Mst. Bevi all along remained with her and even fixed his thumb-impression on the Wakalatnama given by Mst. Bevi and Mst. Bano, defendant in that suit in favour of their counsel.
2. On the pleadings of the parties six issues were framed. The learned trial Court after recording the evidence and hearing the parties dismissed the suit on the ground that the witnesses produced by the plaintiff did not belong to the place where the land in dispute was situated and that these were otherwise interested witnesses inasmuch as they were related to the second wife of Muhammad Hayat, the husband of the original plaintiff deceased Mst. Bevi. The statement of D.W.1 Tassaduq Hussain Baloch, Advocate, who represented the late plaintiff and defendant No.2 before the Civil Court was also given full credit. The statement of the learned counsel namely Tassaduq Hussain Baloch was discussed in full length wherein he had stated to know Muhammad Hayat husband of the late plaintiff personally. Learned counsel further stated to have filed a written statement accepting the claim of the plaintiff in that suit under his own signatures and also the fact that he made a conceding statement before the Court alongwith the then defendants Mst. Bevi and Mst.
Bano on which the suit of present defendant No.1 Ahmed Yar was decreed. The learned trial Court also recorded a personal observation that the said counsel was a Senior Member of the Bar and enjoyed a good reputation. In the judgment of the trial Court it was also stated that some of the impugned documents sent to finger-print bureau for comparison of the thumb-impression of late Mst. Bevi were returned with remarks that the disputed thumb-impresssion of the deceeased plaintiff has been tampered with so as to make the comparison impossible with the admitted impression. The learned trial Court did not fix responsibility for the manipulation on any of the parties. The trial Court was, however, satisfied that Muhammad Hayat husband of the plaintiff and no one of the plaintiffs was present at the time of passing of the aforesaid consent decree.
Therefore, it was of the opinion that independent advice was available to Mst. Bevi when she appeared before the said Court and made a conceding statement.
3. The judgment and decree, dated 7-3-1985 dismissing the suit for the plaintiff was assailed without any success. The District Judge on 31-7-1985 refused to interfere with the finding earlier recorded by the trial Court. However, while recording judgment in para.13 (which ought to have been para.14) he inserted a sentence in his own writing which reads "she was made to understand by sign and symbols and thereafter, she made a statement before the Court".
4. Parties have been heard.
5. Learned counsel for the petitioner places a lot of stress on the fact that defendants in the present suit while filing their written statement admitted, that Mst. Bevi deceased was deaf and dumb.
Further that subsequently they attempted to make a shift by claiming that she was only hard of hearing and that she stammered but still could speak with some difficulty. It is stressed that the deceased/plaintiff being deaf and dumb the aforesaid proceedings held in the earlier suit were totally .Null and void inasmuch as the basic requirements of law in such situation were not fulfilled as she was never made to understand the proceedings. The learned counsel would infer that in the earlier suit Mst. Bevi as a defendant was not actually produced before the Court nor she participated in any of the proceedings as both the scribe of the written statement in that suit as well as Mr. Tassaduq Hussain Baloch the alleged counsel agreed that the lady participating the proceedings did not appear deaf and dumb. Further, stresses that the aforesaid sentence added in the impugned judgment by the learned District Judge was not supported from the record of the earlier suit. Learned counsel in support of the part of the aforesaid submissions relies upon a number of reported judgments to say that even if the proceedings in the earlier suit are accepted to have been held as reported still the legal requirements were not fulfilled to make them acceptable at law. The judgments relied upon include re: Kumbhar Musa Alib v. State of Gujarat (AIR 1966 Gujarat 101 (V 53 C (20); re: Khushi Muhammad v. Jamat Ali (PLD 1984 SC 54); re: Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642) and re: Mst. Omai and others v Hakeem Khan and others (1970 SCM R 499). On the objection of the defendant that plaintiff being out of possession could not seek a simple declaration, he relies on Shamas-ud-Din v. Mst. Jewan (1986 M LD 764). A Single Bench Judgment of this Court reported as re: Fateh Sher v. Sharif Khatoon (1986 CLC 320) is also cited to support the contention that in the given facts this Court could interfere with the finding of the lower Courts. Further, a judgment of the Karachi High Court re: Fazal Muhammad v. Mst.
Aiyshan (1984 CLC 3401) is relied upon to stay that best evidence procured would have been the report of the Finger-Print Expert to decide for and against the execution of the various documents including Vakalatnama in favour of Mr. Tassaduq Hussain, Advocate. Also that the same could not be found established on the mere statement of attesting witnesses. This case appears to have been relied upon in support of an application for additional evidence made before the District Judge with the prayer that the alleged thumb-impression of Muhammad Hayat husband of Mst.
Bevi deceased should now be got examined by Finger Print Expert. That application was earlier rejected by the District Judge when resisted by the respondents that the plaintiff wanted to prolong the proceedings as this kind of prayer could have easily been made during the pendency of the suit. Learned counsel also relies upon re: Mumtaz alias Mangta v. Nizamuddin (1984 CLC 2826) to allege that the late Mst. Bevi being an illiterate Pardanashin lady burden of proving due execution of documents obtained by the defendant Ahmed Yar who relied upon them was on him.
6. Learned counsel for the respondents at the very outset admits that the aforesaid sentence added by District Judge in the impugned judgment does not find support from the record of the impugned judgment and decree, dated 1740-1970 passed by the said Civil Court. However, contends that irrespective of the misunderstanding prevailing with the learned District Judge that fact alone could not be made a reason for interference in the concurrent finding of fact. He claims that most of the arguments advanced at the bar for the plaintiffs pertain to the merits of the sale while the scope of this petition is only to the fact if the aforesaid judgment and decree was obtained on the basis of fraud and misrepresentation. That aspect of the matter, in view of the learned counsel fully stands proved in favour of the decree holders--now respondents. In that respect that learned counsel also refers to the finding recorded by the Courts below with particular reference to the statement made by Mr. Tassaduq Hussain, Advocate. In support of his submissions that concurrent finding of fact cannot be interfered by this Court, reliance is placed on a recent judgment of the Supreme Court in re: Abdul Hakeem v. Habibullah (1997 SCM R 1139).
7. After considering rival submissions I am of the considered view that the petitioners have not been able to make out a case for interference. The learned First Appellate Authority appears justified in rejecting an application for additional evidence which was made after six years during which the parties remained before the trial Court. This application was also rightly found to be an attempt to prolong the proceedings inasmuch as earlier the comparison of thumb-impression of Mst. Bevi also took quite some time and finally no report came forth. The findings of the learned first Appellate Authority in Issue No.5 reversing the order of the trial Court are also supported from the record. Issue No.5 pertains to the maintainability of the suit in its present form. Learned first Appellate Court noted that plaintiffs admittedly being out of possession, could not file a simple suit for declaration. Reliance of the learned counsel of the aforesaid judgments re: Mst. Omair Mal (supra), Shamas-ud-Din v. Mst. Jewan and Fateh Sher (supra) is hardly of any help. I will agree that none of the petitioners/plaintiffs being a co-sharer with the defendants, the rule that possession of one' co-sharer except in cases of declared and hostile claim of adverse possession should always be treated as possession of the other co-sharers was not applicable to the facts in hand. Also the findings of the First Appellate Court about Exh.P.1 Special power of attorney by late Mst. Bevi in favour of her husband in the perspective of the statement of the P.W.1 are justified. It will further be noted that no reason or occasion has been explained as to why the late plaintiff Mst. Bevi and her mother defendant No.2 Mst. Bano all of a sudden decided to constitute Muhammad Hayat as their attorney. This also belies apprehension made in para. 5 of the plaint then if the plaintiff had ever accompanied the defendants they would have rather killed her to inherit her property. This statement it will further be seen was against facts inasmuch as late Mst. Bevi was not to be inherited by any of the two defendants. The learned first Appellate Court also arrived at a correct conclusion that the defence witnesses were more natural and comprised of persons who are in general course of things expected to know the kind of facts in issue. On the other hand the evidence produced by the plaintiffs remained comprised of persons who did not belong to village where the land in dispute was situated. On filing of the previous suit service of notice on late Mst.
Bevi was properly affected. The evidence produced to support the service also remained convincing. The evidence led to prove giving of power of attorney by late Mst. Bevi in favour of the said Advocate Mr. Tassaduq Hussain Baloch also stood the test of cross-examination.
8. The stress on the fact= of late Mst. Bevi being deaf and dumb cannot be accepted as the only key to solve all the issues in hand. In that respect there are contradictions on both sides. It is correct that in the written statement claim of inablity of the plaintiff was admitted. How.Ever, it is equally correct that the scribe of the admitted document special power of attorney Exh.P.1 in favour of Muhammad Hayat claimed that none of the two ladies which executed the power of attorney were deaf and dumb. Learned counsel for respondents is right in pointing out that most of the case of the plaintiffs/petitioners has been built upon the sole fact. All the attending circumstances particularly the statement of the Advocate of Mst. Bevi in the earlier suit coupled with the statement of Wasiqa Navees who wrote the conceding written statement supported the actual issue aspect involved. It was if the aforesaid judgment and decree was obtained by playing fraud upon the plaintiff. There is sufficient material on record to establish that Muhammad Hayat husband of late Mst. Bevi remained associated in all the proceedings and was present on the day when conceding written statement was filed and the aforesaid Advocate was engaged to make a statement. His claim that lie knew Muhammad Hayat husband of late Mst. Bevi personally was not controverted. Therefore, there may have been a procedural lapse happening here or there before passing of the aforesaid decree yet it could not be stated to have been obtained by way of fraud.
The presence of Mst. Bevi and present defendant No.2 Mst. Bano and her being a party to all these proceedings gives strength to the case of defence. The service of summons upon Mst. Bevi and her presence in the Court on the stated day and time is supported by judicial record. The evidence adduced to rebut presumption of correctness attached with such record was totally insignificant and unimpressive.
9. The reliance of the learned counsel on the aforesaid reported judgment re: Kumbhar Musa Alib (supra) is also of no use. In that case which pertains to criminal proceedings where a deaf and dumb witness is to be recorded it was held that the signs used must be recorded and not the interpretation of such signs. In this case the judicial record totally supported the defence that late Mst. Bevi accompanied by her husband and counsel who also happened to know her husband personally appeared in the Civil Court and got recorded their conceding statements. Earlier the person who wrote the written statement also supported the fact that she alongwith her mother Bano had put their thumb-impression on the written statement which had been reduced to black and white on the instructions of her counsel Mr. Tassaduq Hussain Baloch. Therefore, as observed earlier the plaintiffs miserably failed to bring home that the aforesaid judgment and decree of the Civil Court was obtained by fraud or by impersonation.
10. In the aforesaid judgment of the Supreme Court relied upon by the learned counsel for respondent re: Abdul Hakeem v. Habibullah (supra) their Lordships approved an interference by this Court under section 115, C.P.C. Only in the situation mentioned in the judgment. This being that orders of the Courts below were a result of misreading or non-reading of evidence or that they had omitted to consider some material which was vital for settlement of issues, none of these requirements is answered in the case of the present petition. Therefore, this Civil Revision must fail.
11. Rejected.
Revision rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.