' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, with the leave of the Court, has been preferred against the judgment passed by the High Court on 8-6-2001, whereby the revision petition filed by Mst. Farida Bibi, appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that one Hussain Khan, who is now represented by respondents as their successors-in-interest, filed a suit for declaration-cum- perpetual injunction in the Court of Sub-Judge, Muzaffarabad on 7-5-1994. During the pendency of the suit Mr. Muhammad Yaqub Mughal, a local Advocate representing defendant-respondents Nos.3 to 9, made an admission before the Court by filing a cognovit. The appellant herein, one of the defendant-respondents, was Married and was residing at Goharabad in Tehsil Hattain and was quite ignorant about the collusive proceedings initiated on behalf of the plaintiff-appellant. It came to the knowledge of the appellant that on her behalf an admission statement (cognovit) ' has been filed on which she moved an application for cancellation of alleged collusive, forged and fake admission statement. The objections were filed from the opposite side and the Court after taking necessary proceedings, framing the issues and recording the evidence vide its order, dated 4-7- 2000, dismissed the application filed by the appellant. The appellant field a revision petition before the High Court which too was dismissed vide the impugned judgment of the High Court, dated 8- 6-2001. It is the aforesaid judgment of High Court which is the subject-matter of present appeal.
3. In support of appeal it was vehemently contended by Mr. Ashfaque Hussain Khan, the learned counsel for the appellant, that the trial Court failed to strike issues in accordance with the allegation made by the appellant in her application. The appellant specifically alleged that she never 'engaged or executed any power-of-attorney in favour of any advocate nor she was ever served in the case, yet the issue 'was framed in a manner that as if the power-of-attorney was admittedly executed by the appellant. The learned counsel argued that burden of proof of issues was wrongly placed on the appellant, especially so when she categorically denied the very execution of the power-of-attorney. The learned counsel contended that burden of proof in respect of a document purported to have been executed by an illiterate lady affecting her right or interest in the property is on the person claiming the right or interest under the document. The learned counsel also contended that the appellant herself appeared in the witness-box and made a categorical statement that she never executed any power-of-attorney in favour of any advocate or any counsel to file a cognovit on her behalf but her evidence was not appreciated in a true perspective. The learned counsel for appellant contended that alternative even if the appellant affixed her thumb-impression on the power-of-attorney executed in favour of Mr. Muhammad Yaqub Mughal, she was illiterate lady and was not intelligent enough to understand the contents of the power-of-attorney nor it is the case of the opposite-party that the contents of power-of- attorney were read over to the appellant and the same were made known to her. The learned counsel also contended that out of defendants who alongwith appellant allegedly executed power-of-attorney in favour of Mr. Muhammad Yaqub Mughal none of them appeared from the opposite side to support the version that, in their presence, the appellant executed the power-of- attorney in favour of Mr. Muhammad Yaqub Mughal and affixed her thumb-impression. On the other hand reliance was placed on a the evidence of one Sudheer, the witness for the respondent, who simply stated before the Court that his wife, Sajida Gul, executed the power-ofattorney in favour of Muhammad Yaqub Mughal. Thus, the trial Court as well as the High Court misread and misappreciated the evidence brought on record. The learned counsel vehemently urged that the trial Court and the High Court fell in error in appreciating the fact that the issues were not framed according to the pleadings of the parties, as such the appellant was deprived of her valuable rights to inherit the property in dispute.
4. On the other hand Syed Azad Hussain Shah, the learned counsel for the respondents, controverted the argument advanced by the learned counsel for the appellant on all scores and submitted that the issues were framed in presence of counsel for the parties and no prejudice has been caused to the appellant. He fully defended the impugned judgments recorded by the High Court and the trial Court.
5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. It is the case of Mst. Farida Bibi, appellant, disclosed in her application for setting aside the admission statement, that she never engaged Mr. Muhammad Yaqub Mughal as her Advocate nor signed any power-ofattorney in favour of said Advocate but the trial Court in the light of application moved by the appellant and keeping in view the objections filed from the opposite side framed the following issues:-
(i) Whether the cognovit (admission statement) presented by defendant No,8 (Mst. Farida Bibi), is liable to' be cancelled and the same is ineffective and inoperative upon her rights? O.P. On Mst.
Farida Bibi.
(ii) Whether Mst. Farida Bibi, defendant No,8, on the basis of principle of estoppel was not competent to move the application for cancellation of admission statement? O.P. On Mst. Farida Bibi.
' In support of the issues Mst. Farida Bibi appeared as her own witness, whereas Muhammad Aslam and Sudheer were examined by the plaintiff-respondent. The trial Court while relying upon the evidence of plaintiff-respondents observed that Mst. Farida Bib has failed to discharge the burden of Issue No,1, as such the power-of-attorney was duly executed by her in favour of Mr. Muhammad Yaqub Mughal. The application of the appellant was thus dismissed. The High Court also dismissed the revision petition filed by 'the appellant.
6. The grouse of the learned counsel for the appellant, as stated earlier, is that the issues on the application moved by the appellant have not been framed in accordance with the allegations made in the application. The learned counsel for the appellant also contended that the evidence on record has been misread by both the trial Court as well as the High Court. Both the witnesses for plaintiff-respondents, namely, Muhammad Aslam and Sudheer, contradict each other on the point of affixing thumb-impression on the power-of-attorney by Mst. Farida Bibi. According to the statement of witness, Sudheer, when Mst. Farida Bibi affixed her thumb-impression on the power- of-attorney in presence of notables of locality, Muhammad Aslam, the other witness, was not present whereas Muhammad Aslam has stated that on the power-ofattorney a thumb-impression Exh.D.A./l has been affixed but he could not tell as to whose thumb-impression was on the power of attorney. Thus the learned counsel contended that the evidence of plaintiff-respondent being contradictory should not have been relied upon.
7. We have noticed that it has come in the evidence that Mst. Farida Bibi is a "Pardanasheen" lady as well as an illiterate in accordance with the statements of Sudheer and Muhammad Aslam, the witnesses produced by the plaintiff-respondents. It is nowhere the case of plaintiff-respondents that when Mst. Farida Bibi affixed her thumb-impression on the power-of-attorney, its contents were read over to her and she was made aware of the fact that on the basis of her thumb impression on the power-of-attorney her rights in the property could be given up or compromised with the plaintiff-respondents. In a case reported as Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 it was observed that whether a lady is 'Pardanasheen" is a question of fact. The burden of proof in respect of a document purported to have been executed by "Pardanasheen" lady affecting her right or interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady that it was really her free and intelligent act and if she is illiterate, it must have been read over to her. The rule is also applicable to ignorant and illiterate woman.
' In a case reported as Baggu v. Mst. Rehman Bibi 1996 M LD 377, it was observed that if land or property of "Pardanasheen" lady or ignorant and illiterate woman has been transferred through mutation or document, 'the burden of proof qua the execution of document is on the person claiming title under the said document.
8. Despite the fact that before the High Court it was argued by the learned counsel for the appellant that the appellant never executed any power-of-attorney in favour of Muhammad Yaqoob Mughal, the issue was framed in a manner as if the power-of-attorney was admittedly executed by the defendant-appellant. The defendant-appellant is admittedly a "Pardanasheen" and illiterate lady in view of the evidence brought on record by the plaintiff-respondent, in such circumstances it was enjoined upon plaintiffs to prove that the contents of the document adversely affecting her interests were duly read over to her and she was made to understand the consequence of the same.
9. From the aforesaid analysis it becomes clear that the trial Court as well as the High Court misread the evidence brought on record and also framed the issues in violation of law and pleadings of the parties. The impugned judgment of the High Court thus being patently illegal is liable to be set aside.
10. In the light of what has been stated above, by accepting the appeal and setting aside the impugned order passed by the High Court and that of the trial Court, we remand the case to the trial Court after reframing the following issues:--
(1) Whether the disputed power-of-attorney was validly executed by Mst. Farida Bibi, defendant- appellant, and its contents were made known to her? O.P.D.
(2) If Issue No,1 is not proved how would it affect the cognovit O.P.D.?
' The trial Court is directed to give both the parties opportunity to lead evidence for and against the aforesaid issues and to proced with the case according to law. In the circumstances of the case, we pass no order as to costs.