On 27-7-1989 the respondent filed a suit against the petitioner and one Mst. Saban Bibi. This lady died issueless during the pendency of the suit and .was survived by the present petitioners. In the plaint it was stated by the respondent that the said Mst. Saban agreed to sell the suit-land measuring 24 Kanals to him for a consideration of Rs,6,000; that she received Rs,1,000 as earnest and executed agreement dated 6-1-1974 and delivered possession to him; that she promised to transfer the land to him after obtaining the requisite permission that instead of transferring the land to him the said Saban transferred the land in favour of the petitioners vide Mutation No,655 attested on 14-4-1989. This is a gift mutation. It was then stated in the plaint that in case the respondent is not found entitled to possession of the specific Khasra Numbers mentioned in the plaint, joint possession be got delivered to him and in that case he is ready to relinguish 1 Kanal.
With these averments decree for specific performance was sought. The said lady alongwith the petitioners filed a written statement denying the execution of the said agreement. It was stated that the said lady is an illiterate village folk. She denied having received any money from the respondent but regarding possession it was stated that the respondent is a co-sharer and the possession is joint. Regarding the transaction in favour of the petitioners it was stated that they are her sons and she has validly made a gift. Following issues were framed:--
(1) Whether plaintiff is entitled for a decree as per contents of the plaint? OPP
(2) Whether agreement deed dated 16-1-1974 is collusive based on fraud and void? OPD
(3) Whether suit is time-barred? OPD
(4) Whether suit has not been properly valued? OPD
(5) Whether plaintiff is estopped to bring this suit? OPD
(6) Whether defendants are entitled for special cost? OPD
(7) Relief.
The learned trial Court dismissed the suit vide judgment and decree dated 27-11-1990. A first appeal filed by the respondent, however, was allowed by a learned Additional District Judge, Okara on 30-3-1994 and his suit was decreed.
2. Learned counsel for the petitioners argues that the learned Additional District Judge has misread the evidence on record. According to the learned counsel the execution of the agreement by the deceased lady was not proved and that the learned Additional District Judge has proceeded to deal with the evidence in violation of the law declared by the superior judiciary qua transactions allegedly entered into by illiterate ladies. No one has turned up for the respondent who is represented by Mr.Saghir Muhammad Khan. Advocate whose name stands duly listed in the cause list for today but he has not turned up despite calls. The respondent is accordingly proceeded against ex parte.
3. I have gone through the copies of the records appended with this civil revision. Copy of the statement dated 16-1-1974 is available as Exh.P.1. It purports to bear the thumb-impressions of Mst.
Saban and is attested by Khan and Sikandar as witnesses. Muhammad Tufail Chohan, P.W.1 is the stamp vendor. He states that he had issued a stamp for Exh.P.1 and that Mst. Saban had put up thumb-impressions on the back of the stamp. He also stated to have issued the stamp paper on 5-2-1974 for another document Exh.P.2 which is power of attorney. In his cross-examination he stated that he did not, know Saban personally neither he obtained any identification. He did not remember whether Saban came to him alone or alongwith somebody. Muhammad Yasin is P.W.2.
He stated that Sadiq deceased was his brother who was a scribe. He stated that Exh.P.1 had been Written by Sadiq but he does not identify his signatures. P. W.3 is Khan, the marginal witness. He stated that 14 years ago Murad paid Rs,1,000 to Saban and agreement Exh.P.1 was written in his presence and that his thumb-impression, is there on the said document. This witness has not stated that Saban had put her thumb-impressions on the document in- his presence. In his cross- examination he stated that he met the parties in the Courts by chance: that the stamp paper was not purchased in his presence. that Sikandar witness was already accompanying the parties when he' met them in Courts; that no other person accompanied Saban. Sikandar is P.W.3. He is the other marginal witness. He states that 14/15 years ago hey met the parties at the place of Sadiq scribe in the Courts at Okara and the respondent paid Saban Rs,1,000 that Exh.P.1 was written and it bears his thumb-impression that the same was read over to Saban and she put her thumb-impression.
He states that he was present at the time the stamp was purchased; that the stamp was paid for by Murad that Saban was accompanied by a Lumbardar. Murad respondent appeared as P.W.5.
He stated that he paid Rs,1,000 to Saban and she put her thumb-impression on Exh.P.1; that thereafter she gave power of attorney Exh.P.2 and delivered possession; that thereafter Saban left for Thal and he could not find her despite efforts: that now Saban has transferred the land to her sons. In his cross-examination he states that Saban was his Tayazad. Now he states that Saban came alongwith Sardara to purchase the stamp and that she paid for the same; that Khan and.
Sikandar met them in the Courts. He then states that he met Saban 15 years after she had gone to Thal.
4. Saban has appeared, as D.W.1. She states that the respondent is his Chachazad that 15/16 years ago she appointed him as an attorney and left for Layyah: that she had been visiting the respondent at Okara and had been staying with him: that she had not agreed to sell her land to the respondent and had not received any amount. Sardara has appeared as D. W,2 and has stated that Saban used to reside with the respondent before she left for Layyah 15/16 years ago: that she had never entered into an agreement to sell her land, and that he had, never accompanied Saban to Courts for the purposes of any agreement or power of attorney. This witness has been cross- examined and I find that his statement that he never accompanies Saban to the Courts for purposes of an agreement or power of attorney has not been questioned at all. Now it is respondent's own statement that Saban was accompanied by Sardara on the relevant day when she purchased the stamp paper. He is then belied by his own witness Sikandar who says that the stamp was paid for by the respondent. Both the witnesses are admittedly chance 'witnesses. Now Sikandar, P.W. says that Saban was accompanied by a Lumbardar while the respondent states that she was accompanied by Sardara. No explanation is forthcoming as to why Sardara or the Lumbardar was not made to attest the document. Khan, P.W.3, on the other hand, states that Saban was not accompanied by any. These discrepancies, which are by all means are material and cannot be ignored as natural variations, have not at all been explained by the learned Additional District Judge in his impugned judgment. I am also in agreement with the learned counsel that the evidence had not been read properly and keeping in consideration the criteria laid down in several pronouncements of the Supreme Court as well as this Court in the matter of the document alleged to have been executed by illiterate ladies. The document was allegedly executed in the year 1974 while the suit was filed in the year 1989. The explanation offered by the respondent for such an inordinate delay is not borne out from the record. It is true that technically speaking the suit would not be 'barred by time prescribed in Article 113 of the Limitation Act, 1908 in view of the contents of Exh. P.1. but at the same time false plea taken for filing the suit after 15 years does cast doubt on the veracity of the version put forth by the respondent.
5. Coming to the impugned judgment of the learned Additional District Judge, he has discussed the matter in Para.7 of his impugned judgment. He has proceeded on the premises that both the P.W.3 and P.W.4 have deposed that Saban executed the sale agreement Exh.P.1 in their presence. I am afraid, the learned Additional District Judge has not read the statement of P.W.3 because he never said that Saban put her thumb impressions at Exh.P.1 in his presence. He has proceeded to discard the testimony of Sardara, D.W.2 without realizing the import thereof. He says that Sardara was not an eye-witness of the agreement. The learned Additional District Judge has failed to take note of the fact that the respondent insisted in the witness-box that Sardara accompanied Saban to the Courts.
6. I, therefore, do find that the learned Additional District Judge has misread the evidence on record while passing the impugned judgment and decree which cannot be sustained in this civil revision, which is accordingly allowed. The impugned judgment and decree of the learned Additional District Judge, Okara is set aside while the order passed by the learned trial Court on 27-11-1990 dismissing the suit of the respondent is restored. No orders as to costs.