' DEEDAR HUSSAIN SHAH, J.---This appeal by leave of the Court arises out of the judgment dated 7- 6-1993, rendered in R.S.A. No,796 of 1972, by the Lahore High Court, Multan Bench, Multan.
2. The facts, in brief, are that one Muhammad Khan (deceased) sold land measuring 2252 Kanals, situated in Mouza Patal Munda presently Chak No,576/T.D.A., Tehsil Kot Adu, District Muzaffargarh, to Faqir Muhammad etc., defendants Nos.1 to 4 through registered sale-deed for a consideration of Rs,24,000. Ghulam Nabi, brother-in-law of Muhammad Khan (husband of Mst. Sarwar Bibi, respondent No,1) challenged this sale deed through a suit filed on 30-9-1958 in the Court of Administrative Civil Judge, Muzaffargarh, as next friend of Muhammad Khan, on the grounds that Muhammad Khan was of unsound mind; that in the year 1936-37 Muhammad Khan suffered from epilepsy and the disease intensified with the passage of time and he became insane; that Ghulam Qadir son of Allah Ditta and Ghulam Muhammad son of Ali Muhammad took him to.Their house on the pretext of his treatment and he remained there till February, 1956 whereafter he was brought back by Ghulam Nabi, his next friend; that it is after one year Ghulam Nabi came to know that taking advantage of his insanity, the defendants in the suit had got the suit land alienated in their favour collusively through a registered sale-deed; and that Muhammad Khan was a man of unsound mind at the relevant time and the sale-deed was got registered by producing some fake person before the Sub-Registrar. During the pendency of the suit Muhammad Khan died. Mst.
Sarwar Bibi, respondent No,1 was impleaded as a plaintiff, while Mst. Kaniz Bano was impleaded as defendant. Defendants Nos.1 to 5, 7 and Mst. Kaniz Bano defendant No,8 contested the suit and controverted the assertions made in the plaint. Allah Baldish, the broker, who got the bargain of sale struck between the plaintiff and the defendants Nos.1 to 4, and Aghana Khan and Ghulam Qadir, the attesting and identifying witnesses of the sale deed were also impleaded as parties.
They also filed separate written statements refuting allegations in the plaint and supporting the impugned sale-deed. They also appeared as D.Ws.13 to 15. The vendee/defendants in their joint written statement forcefully refuted the allegations in the plaint. They denied the allegation that the deceased plaintiff was of unsound mind at the time of sale or the filing of the suit. They have vehemently refuted the allegation of fraud and impersonation and asserted that the plaintiff voluntarily sold the disputed land while he was in good health and himself executed the sale-deed under his own signatures and personally appeared before the Registering Officer for getting it registered and himself received the price at the time of the registration of the deed. He was son-in- law of Ghulam Qadir and lived with him even prior to his marriage. Further that the land sold was no more part of the Joint Shamlat Holding and had been partitioned into separate Chaks and compact squares by the Thal Development Authority and that they were in possession of the land and no part of it was in the possession of the, deceased plaintiff. Muhammad Khan plaintiff died during the pendency of the suit on 25-11-1962 leaving behind two sisters Mst. Sarwar Bibi (respondent No, 1) and Mst. Fazlan (defendant No, 14) and a widow Mst. Kaneez Bano (defendant No,13). Mst. Sarwar Bibi alone opted to prosecute the suit as legal representative of her deceased brother. Mst. Fazlan and Mst. Kaneez Bano refused to join as plaintiffs and challenged the sale- deed in favour of defendants Nos.1 to 4. Mst. Kaneez Bano filed a separate written statement in which she supported the impugned sale-deed and contested the suit. She further asserted that the deceased plaintiff was of sound mind both at the time of the impugned sale-deed and filing of the suit; that he married her out of his free-will, consummated the marriage and lived with her. She also, challenged the form of the suit and pleaded that possession of the disputed land was with the vendees.
3. On the pleadings of the parties the learned trial Court framed the following issues:-- "(1) Whether the suit land has been correctly described in the plaint? If not what is its effect? O.P.
(2) Whether the plaintiff is in possession of the suit land? If not is the suit competent in the present form? O.P.
(3) Whether the plaintiff was of unsound mind at the time of the institution of the suit? If not, what is its effect? O.P.
(4) Whether the defendants Nos.5 to 7 are necessary parties in the suit? O.P.
(5) Whether the Thal Development Authority is a necessary or proper party to the suit? 0.D.
(6) Whether the plaintiff was an unsound mind at the time of making the sale in question? If so, what is its effect? O.P.
(6-A) Whether the consideration of Rs,24,000 mentioned in the sale deed dated 3-10-1965 was paid to the vendor? O.P.
(6-B) Whether Allah Bakhsh defendant No,5 was an agent of the plaintiff in getting the sale-deed registered and received consideration on his behalf? O.P.
(6-C) Whether the sale-deed dated 3-10-1965 was got registered by means of fraud and collusion mentioned in paras. Nos.5 and 6 of the plaint? If so, what is its effect? O.P.
(7) Whether Muhammad Khan deceased plaintiff was Sunni or Shia and who are his legal heirs?
O.P.
(8) Relief."
4. The learned trial Court recorded evidence of the parties and after hearing the learned counsel for the parties vide judgment and decree dated 14-10-1968 dismissed the suit. On appeal by Mst.
Sarwar Bibi, respondent No,1, the learned District Judge, vide judgment dated 16-10-1972, decreed the suit to the extent of cancellation of the disputed sale-deed.
5. Feeling aggrieved, the appellants filed R.S.A. No,796 of 1972 in the Lahore High Court, which was dismissed vide, impugned judgment; the relevant paragraphs whereof run as under:- "23. Out of the vendees namely Rulia appeared in the witness-box as D.W.16. He could not offer, in my view, satisfactory explanation as to why he did not personally get the sale-deed registered after making payment of sale consideration direct to Muhammad Khan deceased, and as to why the vendees placed implicit faith on a property dealer namely Allah Bux, D.W.13 to complete this important job on their behalf. I affirm the finding of the learned District Judge on Issue No,6-A and hold that no payment of the consideration was proved by the appellants, to have been made to Muhammad Khan deceased.
24. The upshot of the above discussion is that there is no force in this appeal which is dismissed with costs throughout."
6. Vide order dated 22-1-1995 leave to appeal was granted to consider whether in the state of evidence before them, the learned First Appellate Court and the learned Judge in the High Court were right in holding that Muhammad Khan alias Muhammad Nawaz Tagga was insane at the time of the sale in question.
7. Learned counsel appearing on behalf of the appellants contended that the learned Appellate Courts have erred in law in believing the inadmissible evidence of Dr. Rizvi (P.W.1) and Dr. Muhammad Aslam (P. W.2); that these two doctors did not fall within the definition of "Expert" as contained in section 45 of the Evidence. Act, 1872 (now Article 59 of the Qanun-e-Shahadat Order, 1984); that the said witnesses themselves admitted that they were not "persons specially skilled in mental diseases", that the conclusion of the two Appellate Courts suffered from misreading and non-reading of evidence; that the learned Appellate Courts fell into a grave error of law in not adverting to the well-settled legal principle that a party is bound by the statement of his own witness and could not wriggle out of it; that the two Appellate Courts disregarded the statement of Ameer Din P.W.8 and Ghulam Nabi P.W.11 while recording the finding that the marriage of Muhammad Khan deceased with Mst. Kaneez Bano was fake and arranged by her father Ghulam Qadir to grab the property of the deceased, but this plea was neither raised in the plaint nor in the statement of Ghulam Nabi; that both the Appellate Courts below have ignored the well-settled legal principle that a party is not permitted to deviate from the pleadings nor can the Court set up a different Plea for a party and decide the suit on that basis. Both the Appellate Courts based the entire fabric of their judgments on the findings that the marriage of the deceased plaintiff with Mst.
Kaneez Bano was fake and fictitious and that the alleged drama of marriage was arranged by Ghulam Qadir (father of Mst. Kaneez Bano) with ulterior design of grabbing the property of the deceased; that these pleas were not raised in the plaint; that the inconsistency between the plea of insanity and impersonation contained in Issue No,6 and the plea of fraud contained in Issue No,6-C which was duly considered by the trial Court, was entirely lost sight of by the Appellate Courts; that the two learned Appellate Courts fell into a grave legal error in ignoring that the normal presumption is in favour of sanity and the burden of proof lies on the party putting forward the plea of insanity. It was the duty of the next friend of the plaintiff to get the deceased examined from a Specialist in mental diseases during the four years' course of the trial of this suit during which he remained alive; that the cogent and weighty evidence produced by the defendant- vendees was arbitrarily thrown out by the two Appellate Courts in violation of settled principles of appreciation of oral evidence laid down by the superior Courts; and that the learned Judges of the two Appellate Courts acted illegally in ignoring the presumption attached to the registration endorsement at the back of the disputed sale-deed Exh.D.1 under sections 35(3)(b) and 60(2) of the Registration Act, 1908. Learned counsel has cited the following plethora of case-law:-- ' Madan Gopal v. Maran Bepari (PLD 1969 SC 617), Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690), Jannat Bibi v. Sher Muhammad (1988 SCM R 1696), Muhammad Sajjad Hussain v.
Muhammad Anwar Hussain (1991 SCM R 703), Atlantic Steamer's Supply Co. v. m.v. Titisee (PLD 1993 SC 88), Rohini Kumar Deb Nath v. Bhagaban Chandra Deb Nath (PLD 1963 Dacca 253), Muhammad Sharif v. Nawab Bibi (1993 SCM R 462), Shadi Muhammad v. Abdul Rashid (1994 M LD 1856), Nur Muhammad v. Mst. Karim Bibi (PLD 1959 (W.P.) Lah. 932), Shamman v. The State (1985 PCr.LJ 8), Muhammad Iqbal v. The State (PLD 1975 Lah. 658), Ch. Abdul Hamid v. Deputy Commissioner (1985 SCM R 359), Sher Afzal v. Shamim Firdous (PLD 1980 SC 228), Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), Ghulam Shabbir v. Nur Begum (PLD 1977 SC 75), Pakistan Banking Council v. Ali Muhammad Naqvi (1985 SCM R 714), Mst. Sahib Noor v. Haji Ahmad (1988 SCM R 1703), Radha Mohun v. Neripendra Nath (AIR 1928 Cal. 154), Abdul Haque v. Suleman and others (1988 SCM R 1993), Officer on Special Duty v. Bashir Ahmad and 9 others (1977 SCM R 208) and Allah Din v. Habib (PLD 1982 SC 465).
8. Mr. M. Khalid Alvi, learned counsel for the respondent supported the impugned judgment of the High Court as well as of the learned District Judge, contending that both the Courts have properly appreciated the evidence. During the course of arguments when the evidence of Dr. S.R.H. Razvi P.W.1 and Dr. Muhammad Aslam P.W.2 was pointed out to the learned counsel to the effect that these two doctors did not fall within the definition of "Expert" as contained in section 45 of the Evidence Act, 1872 (now Article 59 of Qanun-e-Shahadat Order, 1984), because on their own showing they were not "persons specially skilled" in mental diseases, wherein P.W.1 had admitted that "I have no special degree in mental diseases. There are Specialists in mental diseases at Lahore. I did not note the symptoms of the disease in the certificate, as it is not necessary to do so".
He further stated: "I did not name the disease in the certificate P.1 because for the disease which I noticed there is no name". Similarly P.W.2 admitted that "...It was for the mental specialist to say what particular disease the patient had which I cannot do because I am not a Specialist in psychiatry". He further stated: "I do not remember the factors from which I concluded that the plaintiff was of unsound mind". Both the doctors did not state a single word in their evidence (Certificates Exhs.P.1 and P.2) about the epilepsy from which the deceased was suffering according to plaint.
9. In view of the above evidence, learned counsel for the respondents was not able to convince the Court that the doctors who were examined on behalf of the respondents, in support of their case, were actually Experts and their evidence could be considered or relied upon.
10. In all fairness for the just decision of the appeal it would be advantageous to refer here to the summary of the evidence produced by the parties before the trial Court:-- "PLAINTIFF' S EVIDENCE ' Fifteen witnesses were produced by the plaintiff. P.Ws.1 and 2 Dr. S.R.H. Rizvi and Dr. Muhammad Aslam appeared, to prove their medical certificates Exh.P.1 dated 21-5-1954 and Exh.P.2 dated 22- 12-1956 regarding the unsoundness of mind of the plaintiff. Hakim Dost Ali P.W.3 and Hakim Talib Hussain P.W.7 deposed about the treatment of the deceased plaintiff for epilepsy. Irshad Hussain P.W.4, Habib Ullah P.W.5 and Khadim Hussain P.W.6 were co-citizens who were produced to make general statements that the deceased plaintiff was a lunatic. Amir-ud-Din P.W.8, a distant cousin of the deceased plaintiff, deposed that the deceased suffered from epilepsy and mental disease.
Muhammad Akram PAK 9 was the petition-writer who scribed the impugned sale-deed Exh.D.1 and was produced to prove the due execution of it by the deceased plaintiff. Sajjad Haider P.W.10, a Handwriting Expert, deposed that signatures of the deceased plaintiff on thee disputed sale-deed Exh.D.1 did not tally with specimen signatures taken in Court. Ghulam Nabi P.W.11, the next friend of the deceased plaintiff, appeared to support the plaint generally. Malik Sher Muhammad P.W.12, Nazar Hussain P.W.13, Jewan Khan P.W.14 deposed that the deceased plaintiff was Shia by faith and observed Shia rites in offering his prayers and in other religious pursuits. Muhammad Ashraf, a son and Special Attorney of Mst. Sarwar Bibi plaintiff, deposed about the Shia faith and legal heirs of the deceased plaintiff. Abdul Aziz Inspector, Fingerprint Bureau appeared as C.W.1 to depose that the thumb-impression on Exh.D.1 did not tally with the sample thumb-impression of the deceased plaintiff."
"DEFENDANTS' EVIDENCE ' The vendee-defendants 1 to 4 produced sixteen witnesses. Mst. Kaneez Bano D.W.1 deposed about her marriage and conjugal life with the deceased plaintiff and his good mental and physical health. D.W.2 Munshi Karim Bakhsh was the scribe of the Kabinnama Exh.).2, dated 12-11-1955 executed by the deceased plaintiff prior to his Nikah with Mst. Kaneez Bano D.W.1. He deposed that he knew the deceased plaintiff since 1949 and that the said document was subscribed to by the deceased plaintiff after fully understanding of its contents. Ghulam Sarwar P.W.3, a close relative of the parties, was an attesting witness of the Kabinnama D.2 and Nikah Nama D.4. Munshi Ghulam Qadir D.W.4 was a Treasurer at Government Treasury at Kot Addu. He sold the stamp papers of the sale deed Exh.D.1 after obtaining the signatures,of the deceased plaintiff at the back of the stamp.
He knew the deceased plaintiff for 7/8 years prior to the said sale. He refuted the suggestion that the deceased was suffering from mental malady and epilepsy. Karim Bakhsh Patwari D.W.5 deposed from his record about the area sold, its acquisition by T.D.A. Fresh allotment in lieu of the land sold and the exclusive possession of defendants 1 to 4 over the said land. Muhammad Nazir D.W.6, an official of the Land Acquisition Officer, deposed that the deceased plaintiff himself received compensation for his land from T.D.A. Allah Bakhsh D.W.7 deposed about the marriage of the deceased plaintiff and his Walima at the house of his father-in-law, Ghulam Qadir. Ghulam Hassan Khan, Advocate D.W.8 deposed about the application filed by the deceased plaintiff through him in the suit to pursue it himself as a man of unsound mind. H.Q. Nawaz D.W.9, a Postal Clerk deposed that the deceased plaintiff held and operated a Postal Saving Bank Account from 1953 to 1959. Muhammad Nawaz D.W.10 and Muhammad Niaz D.W.11 deposed about the sale of the stamp-paper of the Kabinnama Exh.D.2. Cyril G. Bhen, Handwriting/Fingerprint Expert, swore his opinion that the disputed sale-deed Exh.D.1 bore the signatures of the deceased plaintiff and that the thumb-impression under the registration endorsement on the said deed was superimposed and unidentifiable. Allah Bakhsh D.W.13 deposed that he got the bargain of sale struck between the parties and paid Rs,24,000 as price to the deceased plaintiff before the registering authority.
Aghana Khan D.W.14 deposed that he alongwith Ghulam Qadir identified the deceased plaintiff at the time of registration. Ghulam Qadir D.W.15 was the father-in-law of the deceased plaintiff. He was the attesting and identifying witness of the disputed sale-deed Exh.D.1. He deposed about the due execution and registration of the sale-deed and marriage and good health of the plaintiff. Haji Rullia defendant No,3 appeared as D.W.16 and deposed in support of the case of the vendee- defendants."
11. We have perused the judgment of the trial Court, which, after examining the evidence in depth dismissed the suit of the respondents. In appeal the findings of the trial Court were reversed by the learned District Judge, and the second appeal filed by the appellants did not find favour with the learned High Court. So far as the evidence produced by the respondents about the ailment of Muhammad Khan deceased is concerned, it was not proved that actually he was suffering from mental disease and was not able to carry out his ordinary pursuit's of life in epilepsy in any case.
12. Learned counsel for the appellant also referred to the American Medical Association, Home Medical Encyclopedia, Volume One A-H, wherein it is, observed that:-- "Epilepsy.--Many people outgrow epilepsy and do not require medication.
' Many people with epilepsy lead normal lives and have no symptoms between seizures.
' Since patients frequently do not have recall, information may be obtained from witnesses.
' One-third of those in whom epilepsy develops eventually grow out of the condition and experience seizures. Another third find that the seizures become less frequent in response to drug treatment. The conditions of the remaining third remain the same.
' Sufferers from epilepsy usually are able to work, but the disorder may limit their choice of jobs.
There are restrictions on obtaining a driver's licence (generally an applicant is required to have been seizure-free for several years). It is advisable, unless the seizures are very well-controlled, to avoid high-risk jobs involving heights or dangerous machinery and sports such as skiing.
' Most major epileptic seizures last only a minute or two and demand little of the bystander."
' He also referred to a Fortnightly Feature reported in Daily "Dawn" of September 20, 2000, on the subject of misconceptions about epilepsy, wherein it is observed as under:- ' "Let us look at the sequence of events in an attack of major epilepsy: An otherwise normal person suddenly shrieks and falls down. The body becomes board stiff for 5-10 seconds and the face and fingers turn a little blue. The body then starts to convulse almost like a goat that has just been slaughtered and some blood-mixed froth appears at the mouth. The convulsions last 30 to 60 seconds, followed by a period of deep breathing. After some time, which may last up to half an hour, the person usually recovers back to almost normal state and able to pursue whatever activity he or she was doing prior to the attack. The afflicted person appears to be physically fit, and behaves quite normally before and after the attack, yet he seems to have gone through a mysterious and stormy event. The experience from the Central African Republic indicates that burn wounds are very common among epilepsy patients. The patients are subjected to a sort of treatment in which various parts of the body are seared or branded to remove the supernatural cause. In Pakistan, the perception of this disorder does not appear to be based so radically on supernatural causes.---- A very common on is that persons afflicted by epilepsy have lesser intelligence, initiative and drive as compared to normal people. This is far from the truth.---- other possess normal intelligence and can pursue normal schooling.
' People with epilepsy, by the large, are physically, mentally and intellectually normal and can succeed in any profession. Examples of people who had epilepsy and yet succeeded in life include Caesar, Peter the Ciar of Russia, Lord Byron, Dostoevsky, and many others, who lived normal productive lives. Unfortunately, the epileptics have to battle against the stigma, superstition and misconception to survive in this world. In all countries, people with epilepsy are socially and economically marginalised with obvious reaction of disappointment dejection and deprivation. It is hardly surprising that some of them would develop a certain degree of paranoia."
' It would also be pertinent to reproduce below the Medical Certificates Exhs.P.1 and P.2: ' "Dr. S.R. H . Razv I , ' M.B.,B.S., Lyallpur, ' D.P.H.L.T. M. P.H.S: Dated: 15-5-1954.
' "Certified that Muhammad Khan alias Muhammad Nawaz son of Ghulam Haider, Caste Jai Gadara, has been examined by me and found suffering from mental condition of Chronic Nature.
He is of unsound mind.
(Sd.) Dr. S.R.H. Razvi ' Thumb-impression of Muhammad Khan."
' "Office of the District Health. Officer, Jhang.
' Dated the 22nd December, 1954.
' Signature of candidate ' Thumb-Impression.
' Certified that Muhammad Nawaz son of Ghulam Haider, caste Jat Godara in door No,1070 has been under observation in the Civil Hospital, Jhang from 21-11-1956 to 5-12-1956 for his, mental condition. I am of the opinion that the abovesaid. Muhammad Nawaz is of unsound mind and his malady is of a chronic nature.
' Identification Marks: 'A scar above the left eye-brow.
' A scar on the right shin lower. Part.
(Sd.) M.B.B.S., D.P.H., W.P.H.S.(I), ' District Health Officer, Jhang."
13. We have gone through the judgment of the First Appellate Court. It is very strange to note that the District Judge has observed as under:-- ' "There was a suggestion in the cross-examination of Mst. Kaniz Fatima that she was and had never menstruated. This may be a wild suggestion but it is a fact that she did not become pregnant, during her marital relations with the deceased. These facts alone do not prove anything but if deceased Muhammad Khan had been sexually normal, he would not have become estranged with his wife so shortly after the marriage."
14. We have perused the judgment of the learned High Court, the relevant paragraph whereof runs as under:-- ' "Learned counsel for the appellant tried to establish from the evidence on record that the deceased was a Shia by faith and used to attend the religious rites/functions in this regard.
According to him, this evidence produced on behalf of Muhammad appellant by his next friend Ghul am Nabi was completely destructive of the plea of insanity of Muhammad Khan.
' I am afraid, this is not so, Ghulam Nabi, being sister's husband of Muhammad Khan, appears to have produced this evidence to lay his hand on a greater chunk of property of Muhammad Khan, in case he was able to convince Court that the deceased was Shia, according to which Fiqah, in the event of dearth of an issueless person, his sister was to get a large share in the estate of the deceased, but no implicit reliance can be placed on this evidence to find the true answer to the controversy covered by Issues 3 and 6."
' In the impugned judgment the learned Judge also observed as under:-- ' "No effort was made by the appellant to get Muhammad Khan medically examined to prove that he was not mentally deranged person."
15. The burden was on the plaintiff to prove that Muhammad Khan was of unsound mind on which account the respondent did not make efforts; even during the trial the respondent did not move the Court so that. Muhammad Khan may be medically examined to find out whether he was mentally deranged person when the trial continued for more than 5 years. On the other hand the evidence adduced by the appellants, which is mentioned hereinabove, appears to be plausible, and natural and there is no iota of doubt. The very important witness Muhammad Khan appeared before the District Registrar, in whose presence the deceased received the amount and signed the registered sale-deed. Apart from this the appellants also examined the Officer of Thal Development Authority, who stated that Muhammad Khan received the compensation of land himself and he also operated post office account and bank account and the concerned employee of the Postal Department i.e, Haq Nawaz, Postal Clerk was examined. From the above evidence adduced by the parties, it is crystal clear that Muhammad Khan deceased was of sound mind and he on his own free-will sold the land, received the amount before the Sub-Registrar. The sale-deed was also produced and the Sub-Registrar and the witnesses, as mentioned above, supported the case of the appellant. The reasons given by the learned First Appellate Court as well as the learned High Court are not cogent and sound which cannot be accepted. The case-law cited by the learned counsel for the appellants is relevant and helpful to his case coupled with the literature about the ailment of epilepsy which shows that a person suffering from epilepsy cannot be termed as of unsound mind.
16. For the above facts, circumstances, case-law and medical evidence, we are of the firm view that the judgment of the trial Court is perfectly right and is based on very valid and cogent reasons in consistence with the established principles as laid down by this Court; whereas the reasoning and conclusion of the First Appellate Court as well as the High Court appear to be based on unsound and contrary to the evidence recorded by the trial Court, which cannot be accepted.
17. The upshot of the above discussion is that we allow this appeal, set aside the judgment of the High Court as well as of the First Appellate Court, and restore that of the Administrative Civil Judge, whereby the suit filed by the respondents was dismissed. The parties are left to bear their own costs.