' This Civil Revision is directed against the judgment and decree, dated 21-2-1985 passed by the learned District Judge, Rahimyar Khan, by which the appeal of Mst. Pathani/respondent/plaintiff was accepted and the judgment and decree of the learned trial Court dated 4-12-1982 dismissing her suit was set aside.
2. Briefly the facts are that the respondent Mst. Pathani filed a suit for declaration that the mutation of exchange No,592 dated 26-3-1974 was a bogus and sham transaction and the said exchange was never transacted by her. As a consequential . Relief, she soughtto restrain the petitioner/defendants from interfering in any manner in her user and possession over the property in question.
3. The suit was defended on the ground that the suit was not maintainable in its present form; that the plaintiff is estopped to file the suit; that the suit was not properly valued for the purposes of court-fee and that the respondent/plaintiff had herself appeared before the Tehsildar and got the impugned mutation sanctioned by exercising of free-will and volition.
4. From the pleadings of the parties, the following issues have been framed:-- ' ISSUES:
(1) Whether Mutation No, 592 dated 26-3-1974 is fictitious and collusive and as such inoperative on the rights of the plaintiff? OPP.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the plaintiff is estopped to file this suit? OPD.
(3-A) Whether the suit is properly valued for the purposes of the court-fee? OPP.
(3-B) Whether the defendants are entitled for the special costs under section 35-A, C.P.C.
(4) Relief.
5. After recording evidence, the learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 4-12-1982. Mst. Pathani/plaintiff/respondent filed an appeal which was accepted vide judgment and decree dated 21-2-1985 passed by the learned District Judge, Rahimyar Khan.
While accepting the appeal, the learned First Appellate Court found that as the respondent/plaintiff was a Pardanasheen and illiterate lady, the onus shall lie on the opposite-party to prove that such a lady not only entered into a transaction willingly but also had independent advice. The learned First Appellate Court also found that it was not believable that the respondent/plaintiff would part with her valuable property.
6. In this Civil Revision, the learned counsel for the petitioners has contended that the learned First Appellate Court misread and misappreciated the evidence while coming to the conclusion that Mutation No,592 dated 26-3-1974 was not executed by the respondent/plaintiff herself. He further submitted that the examination of the issues on the record would suggest that the onus of Issue No,1 was squarely placed upon the plaintiff and it was the plaintiff herself who was obliged under law to discharge the said onus by production of strong and cogent evidence. According to the learned counsel for the petitioners, the respondent/plaintiff had failed to produce any such evidence which could negate the transaction of mutation of exchange. The learned counsel for the petitioners relied upon the case of Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 to contend that a mutation getting incorporated in the Jamabandi was held to carry a presumption of truth. He further submitted that mutation proceedings conducted in a public assembly whether the executant has also put his signatures or thumb-impressions on the said document would carry a presumption of correctness. Reliance in this respect is also placed on the case of Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533 wherein it was held that a mutation being a public document, forgery or fabrication cannot be presumed. All official .Acts are presumed to have been properly and regularly performed.
7. On the other hand, the learned counsel for the respondent/plaintiff has strongly contended that admittedly the plaintiff was an illiterate and Pardanasheen lady and all transactions which effect the rights of such ladies have to be approached with abundant care and caution lost her valuable rights are jeopardized. According to the learned counsel for the respondent, the disability attached to a Pardanasheen and illiterate lady increases the legal obligation of the opposite-party to prove with unequivocal evidence, the transaction attributed to such a lady. In such circumstances, the onus remains fixed upon the person who claims a transaction in his favour from such Pardanasheen and illiterate woman.
8. After hearing the arguments of the learned counsel for the parties, the question that falls for determination would be whether or not the respondent/plaintiff has placed upon the record such evidence which was sufficient to discharge the initial and that the positive question of fact that such a lady has in fact executed the impugned mutation would continue to remain heavily upon the opposite-party. The respondent/plaintiff has produced the learned local Commissioner who had gone to make spot inspection. Besides the statement of the said P.W.1, the plaintiff/respondent produced P. W .2 Haji Fateh Muhammad who supported the contention of the respondent. P.W.3 is the statement of the respondent herself. In her statement, she has most vehemently denied the execution of the mutation of exchange in favour of the petitioners. As against this evidence, there was no evidence worth the name which was produced by the petitioners.
9. Although, it is correct that a mutation which has been incorporated in the Jamanbandi carries a presumption of truth but this presumption is rebuttable. A Pardahnasheen and illiterate lady also has a corresponding presumption of law existing in her favour because of her obvious disability.
From the evidence on the record, it is proved that the petitioners have not been able to rebut the presumption existing in favour of the respondent/plaintiff whereas through the evidence of the three witnesses produced in the Court, the respondent/plaintiff had successfully rebutted the presumption that might have attached to the impugned mutation.
10. As a result, the learned counsel for the petitioners has not been able to point out any specific non-reading or misreading of evidence or misapplication of law or procedure which might render the judgment of the learned First Appellate Court as unlawful or infirm. There is no merit in this Civil Revision which is hereby dismissed. The parties to bear their own costs.