The brief facts in the instant case are that the predecessor-in-interest of the plaintiff owned an agricultural land in East Punjab (India) and in lieu of that land he was allotted the land measuring 106 Kanals, 13 Marlas at Khata No. 120 of Register RL-II of Village Dhilwan Khurd, Tehsil Wazirabad which was inherited by the plaintiff, his real niece and got 1/4th share from Khewat No. 120 after the death of Naseer-ud-Din her uncle and the remaining Khata was distributed to Mehdi Hassan, the real nephew of the predecessor--in-interest. The plaintiff became owner of land measuring 31 Kanals, 13 Marlas to the extent of 1/3rd share consisting of Khewat No.5, Khatuni No. 10, Khasra Nos.766, 767, 794, 795, 800, 804, 805, 829, 830, 831, 832, 833 and 917. Later on, the land measuring 193 Kanals, 16 Marlas at Khewat No.196 of Register RL-II was allotted in the name of said Naseer-ud-Din on 20-8-1963. This was converted into Khewat No-98 and Khatuni No. 158. During consolidation proceedings according to Register Haqdaran in Zameen for the year 1962-63, the plaintiff got 1/4th share i.e. 48 Kanals of land totalling to 79 Kanals, 13 Marlas. The plaintiff was residing at Kot Waris, Tehsil Wazirabad, whereas the land was situated in village Dhilwan Khurd, Tehsil Wazirabad at a distance of 35/40 miles according to the office record.
2. Mst. Ruqayya filed a suit for possession against the defendants Sardar etc. That according to the record she is the owner of the agricultural land measuring 79 Kanals, 13 Marlas situated in Mauza Dhilwan, Tehsil Wazirabad as the legal heir of Naseer-ud-Din. This was under cultivation of the predecessor--in-interest of defendants Nos.6 to 15. In the year 1962 her husband remarried. Boota, Jhanda and Lal sons of Sadar Din took land measuring 31 Kanals, 13 Marlas under 10 years "Patta" at the rate of Rs.200 per year and gave her Rs.2,000 as an advance money. As she was an illiterate and simple lady they showed that "Patta" as an agreement to sell dated 7-11-1962 and fraudulently got her thumb-impressions on it and later on, on 28-9-1963 on the basis of the same, they got the sale-deed executed. Although the land was not yet allotted to the plaintiff and through this sale- deed the property was fictitiously and fraudulently transferred to the predecessor-in-interest of the defendants and as the plaintiff was living at a distance of 35/40 miles from Mauza Dhilwan where the disputed property was situated and the predecessor-in-interest of the defendants was paying her the Lagan, therefore, she could not know the fraud and fictitious transfer in their names. Hence, the agreement dated 7-11-1962, Bainama dated 28-9-1963, Mutations Nos.334 dated 14-11-1963 and 379 dated 11-2-1969 are void and ineffective against the rights and interest of the plaintiff as these are the product of collusive, fictitious and fraudulent transactions. The suit was filed on 23-12-1980 which was contested by the defendants on the preliminary objections that the suit was time- barred and for lack of cause of action, estoppel and insufficient court-fee.
3. The following issues were framed:--
(1) Whether the suit is barred by time? OPD.
(2) Whether the plaintiff has no locus standi to bring the suit? OPD.
(3) Whether the plaintiff is estopped by her words and conduct to bring the suit? OPD.
(4) Whether the suit is not maintainable in its present form? OPD.
(5) Whether the plaint is liable to be affixed with court-fee, if so, what amount? OPD.
(6) Whether the suit is vague and liable to dismissal? OPD.
(7) Whether the transfer of land by plaintiff in favour of defendant No.1 and predecessor-in-interest of defendants Nos.2 to 10 through agreement deed dated 7-11-1962, sale---deed dated 28-9-1963, Mutation No.334 dated 14-11-1963, Mutation No.379 dated 11-2-1969 are void, ineffective and inoperative upon the rights of the plaintiff having been obtained through fraud and collusion? OPP.
(8) Relief.
4. The oral and documentary evidence was produced by both the parties. The learned Civil Judge vide his judgment and decree dated 19-9-1987 dismissed the suit tiled by the plaintiff. This judgment was assailed in appeal and the learned Appellate Court vide judgment and decree dated 22-7-1990 accepted the appeal, reversed the impugned judgment and decree passed by the learned trial Court and decreed the suit in favour of the plaintiff. This judgment is assailed in the instant civil revision.
5. The learned counsel for the petitioners has argued that the original suit was dismissed vide judgment and decree passed by the learned Civil Court on 19-9-1987. The learned Appellate Court on appeal filed by the respondent accepted the appeal and decreed the suit on 22-7-1990. The subject of the suit was the transactions which took place on 28-9-1963 while the suit was filed on 23-12-1980. In this way it was time-barred by 17 years and 3 months. The registered sale-deed dated 28-9-1963 was in respect of the land twice allotted to Naseer---ud-Din and the respondent inherited 1/4th of the share according to law of inheritance. The first allotment was on 1-10-1954 and the second allotment was on 26-10-1954 and then on 20-8-1963. On the basis of the agreement to sell the registered sale-deed took place and when the sale-deed took place Rs.7,000 had already been paid and this is a complete misreading of this document by the learned Appellate Court. The second misreading is about the witness as narrated as Siraj Din which is read as Sardar Ahmed. There is no such witness as Sardar Ahmad and merely saying that some units could not be entered into transaction of sale but is not enough to make it the basis of a judgment against the petitioners as the allotments were existing at the time of the sale-deed and tangible land has been mentioned. Therefore, it cannot be held that the alienation in favour of the petitioners was illegal. Sardar and Tauheed entered in the witness-box and proved the contents of the documents. The oral evidence cannot overcome the documentary evidence as the sale is a registered sale-deed. Reliance is placed on Muhammad Azam and others v. Muhammad Yar and others (1988 CLC 2388) and Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another (1989 CLC 1883). The thumb-impressions on the sale-deed are not denied by the respondent Mst.
Ruqayya.
The learned counsel for the petitioners argued that according to section 19 of the Contract Act the contract at the most can be held voidable not void as observed by the learned Appellate Court, therefore, the finding of the learned Appellate Court is illegal. Even according to the plaint they came to know about the transaction in the year 1978-1979. By that time the limitation had already expired. Relied on Province of the Punjab through Member, Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others (PLD 1993 SC 147). The "Patta" is not produced and it is not mentioned in Khasra Girdawari or Jamabandi. He further argued that according to 1988 CLC 2388 the evidence of the marginal witnesses cannot nullify the documentary evidence.
6. The learned counsel for the respondent has argued that in the year 1962 the husband of the respondent contracted a second marriage and these are the admitted facts in the evidence that the respondent started living 30/40 miles away from the village where the disputed land exited. In this way she was not able to govern and superintend the same with all the diligence. Therefore, she gave this land on "Patta" and the predecessor-in-interest of the petitioners committed a fraud and made a fraudulent agreement to sell and sale-deed of the transaction which was in fact a "Patta" and not a sale-deed. They committed the same offence of fraud and misrepresentation upon the brother of the respondent whose land was also manipulated by the predecessor-in---interest of the petitioners and he filed a civil suit which was decreed and a criminal case was registered against them by the plaintiff/respondent. They continued paying Lagan to the petitioners but they refused to pay the Lagan in the year 1979 and therefore, the fraud came to the vision of the respondent and she filed the instant suit. Since the respondent is an old and infirm lady and illiterate one, therefore, according to the judgment of the Supreme Court when a fraud is alleged by an illiterate and infirm lady the onus to discharge shifts to the person against whom the fraud is alleged. Hence, there is onus upon the petitioners to prove that the transaction of alienation was in fact a transaction of sale. They did not produce the two attesting witnesses. In fact both the attesting witnesses to the sale-deed namely P.W.4 and P.W.5 were produced by the respondent and they appeared in the Court and they categorically stated that no sale transaction took place.
He further argued that the property was being allotted from time to time. Even some units were still to be transferred and placed on RL-II, therefore, how this land was transferred through the impugned sale-deed. The factum of fraud is proved as the agreement to sell is in the name of two persons while the land stood registered in the name of three persons as the third one challenged that the fraud will be disclosed if the land is not given to him. He further argued that even at the end of the agreement to sell, which suffered from lack of consideration, an addition is made in different handwriting showing the consideration of Rs.7,000 paid as Rs.5,900 before and Rs.1,100 later on. The petitioners miserably failed to place on record the receipt of Rs.5,900 as the said amount was a big amount. There is no relationship between the parties. They are completely strangers and are parties to the sale-deed. The property in dispute is 9 acres and it shows and proves that the fraud was committed with the respondent who was an illiterate old lady and living at 30/40 miles away where the property was situated. During criminal proceedings the respondent had categorically admitted as D.W.4 that if any fraud was committed it was committed by their predecessor and they have no knowledge of the same.
The learned counsel for the respondent has further argued that the elder son of the respondent was born in the year 1962. They did not cross-examine the witness who stated that the land was given on "Patta" and if the witness is not cross-examined then whatsoever he says it stands admitted. According to Article 120 of the Limitation Act the limitation starts from the date of discovery of fraud. It is very strange that one of the purchasers appears at the time of confirmation of RL-II and states that he as a representative of Mst. Ruqayya is confirming the land in the year 1967 while the sale-deed pertains to the year 28-9-1963, therefore, how could he appear in the year 1967 and states that he is a representative of Mst. Ruqayya respondent and gets the land confirmed. Even at the time of Mutations Nos.334 dated 14-11-1963 and 379 dated 11-2-1969 Rahim Bakhsh who is a Lumbardar of another village has appeared and the Lumbardar of the same village does not appear. Again submitted that the best evidence which was available to the petitioners was to produce the receipt of Rs.1,100 and Rs.5,900. They have even not produced a single witness to support that they have paid the aforesaid consideration to the petitioner and in this way they have failed to produce the best evidence and the presumption goes against them.
Reliance is placed on Messrs Eastern Express Co. Ltd. v. Messrs Western India Skin Exporters (PLD 1958 Kar. 355) and Syed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lah. 1138).
7. I have heard the learned counsel for the parties and have perused the record.
8. The learned Civil Judge while deciding Issues Nos. 1, 2, 3, 4 and 6 non---suited the plaintiff on the point of suit being time-barred and observed that the plaintiff has no locus standi to bring this suit as she was estopped by her words and conduct to bring the suit and the suit is vague and is liable to be dismissed and held the transaction of sale as valid and not obtained through fraud and collusion. The learned Appellate Court vide the impugned judgment and decree reversed the findings of the learned trial Court on these issues and observed that the learned trial Court badly failed to read the documentary evidence produced by the parties and especially the original document, the alleged agreement to sell dated 7-11-1962 and failed to discuss the same. Even in the document Exh.D.1 the further land which was to be allotted to the predecessor-in-interest of the plaintiff was also included and it was not legal in all respects. The learned Court below also did not read the evidence of the marginal witnesses of the Agreement Exh.D.1 and Exh.D.2 namely P.W.4 and P.W.5 who were not brought into the witness-box by the defendants rather they were brought into the witness-box by the plaintiff as P.W.4 and P. W.5 and they did not support the documents Exh.D.1 and Exh.D.2 rather they stated that the transaction which was existing, between the plaintiff and the defendants was a "Patta" and the agreement to sell Exh.D.1 and sale-deed Exh.D.2 are the outcome of fraud and collusion. The learned Appellate Court also observed that the considerations of the Exh.D.1 and Exh.D.2 were not considered by the learned trial Court and also observed. That the agreement Exh.D.1 does not support the registered sale-deed Exh.D.2. It shows that a sum of Rs.1,100 was paid by the vendors to the vendee at the time of its execution on 7-11-1962 and the remaining amount in the sum of Rs.5,900 has already been received by the vendors prior to its execution and no receipt was produced by the defendants to prove the consideration of the sale-deed. Even the contents of Exh.D.1 had not been duly proved by the respondents as the scriber of that document had died and his son was produced as D.W.1 who identified the signatures of his father which are Exh.D.1/A. The learned Appellate Court also observed that Sardar Ahmad is the attesting witness of Exh.D.1 (this is in fact Siraj Din P.W.4) who clearly stated that a sale-deed in place of agreement to sell was written in his presence. These witnesses were not shown any enmity with the defendants.
Mehdi Hassan is the real brother of Mst. Ruqayya Bibi who deposed that Muhammad Sharif, Lumberdar is an attesting witness of Exh.D.1 who was not produced by the defendants in rebuttal.
Siraj Din and Rahim Bakhsh are shown to be present at the time of the alleged registered sale- deed. Siraj Din, the marginal witness has stated that he marked his thumb---impression over the lease deed and not on a sale-deed. Rahim Bakhsh was not produced as witness to support the transaction of the sale. There is an addition in the agreement to sell in different ink which is not explained by the defendants. In Exh.D.1 the land bearing Khewat No.120 of Register RL-II. Mauza Dhilwan Khurd, measuring 3-1/2 acres and the remaining units owned by the plaintiff were sold for a consideration of Rs.7,000. No land was allotted in lieu of these remaining index units then how the sale was executed in respect of the index units? The learned Appellate Court further observed that such an agreement which is in respect of the remaining produce index which are yet to be allotted is void and fraud leaves behind its traces. Exh.P.6 is the certified copy of the register RL-II over which subsequent allotment in lieu of the remaining produce units was allotted on 20-8-1963.
9. The perusal of the agreement to sell shows that: At the end of this document which is stated to be agreement to sell and addition is made.
This is from black different ink. At the top of Siraj Din marginal witness there is thumb-impression again in different ink. It is written that: and at the top of the petition-writer where is written that and it is written and at the top of Mehdi Hassan, marginal witness it is written that: There is no explanation of this addition and insertion of the document which is exhibited as Exh.D.1 and it is nowhere written that the addition is made in this document with the consent of the parties.
Even on its face it shows that the additions are belated. This is a document on the basis of which the sale-deed Exh. D.2 was executed. The defendants have miserably failed to explain these additions and to prove that it was a crystal clear transaction of sale with a considerations. Even the considerations mentioned in the document are contradictory. It is written in the middle of the document that the consideration of Rs.7,000 has been received and it is not explained in between the same lines the manner the consideration had been paid. Therefore, this document which legally does not confer any right or title over the property but does create a charge on the disputed property against the alleged vendors; if at all considered legally; is a dubious document. Even the perusal of Exh.D.1 shows that the description of the property given in the agreement to sell is different. It also does not disclose the manner the consideration of the property in dispute was paid and the marginal witnesses of the same are Siraj Din and Rahim Bakhsh Siraj Din P.W. 4 is not supporting Exh.D.1. He was not produced by the petitioners/defendants but he was produced by the respondent/plaintiff and the second witness Rahim Bakhsh, who could be produced by the defendants to rebut Siraj Din and to prove transaction of sale with consideration. This document is disclosing that the possession is given to the defendants from the date 7-11-1962 which is disproved through oral as well as documentary evidence as the predecessor-in-interest of the defendants were in possession of the property being tenant under cultivation and this is precisely the case of the respondent/plaintiff that she did not enter into the transaction of sale with the defendants rather it was given on "Patta" and she was given Lagan and cost of the "Patta". This was also supported by P.W.4 Siraj Din and P.W.5 Mehdi Hassan. In view of the judgments of the Hon'ble Supreme Court whenever a fraud is alleged by an illiterate lady the onus always shifts on the defendants to prove that the transactions were solemn and not tainted by fraud or collusion.
According to the stance taken by the defendants they entered into an agreement vide Exh.D.1 on 19-1-1962 and vide Exh.D.2 on 28-9-1963. It is an admitted fact that the plaintiff was inheriting from the predecessor-in-interest's property at different times. Naqsha Taqsim Araazi Mustaqil Exh.P.5 shows that some of the property was allotted vide the order of the D.R.C. (Land) on 16-5-1961 from the inheritance of Naseer---ud-Din deceased in favour of his legal heirs amongst which the plaintiff is also inheriting. Exh.P.6 is also Naqsha Taqsim Arazi wherein it is shown that Mutation No.334 in favour of Jhanda, Lal and Boota was sanctioned on 14-11-1963. It is mentioned in Exh.P.6 that Jhanda is appearing as attorney and is agreeing with the proposals and these proposals are accepted on 20-8-1963.
10. Any power of attorney as-special or general has not been produced by the defendants, then how Jhanda who had the sale-deed registered in his favour on 28-9-1963 was appearing as attorney on behalf of the plaintiff and betting the land confirmed in her name on 20-8-1963. At that time none of the allottee was present and the land measuring 193 Kanals, 16 Marlas was allotted to the legal heirs of Naseer-ud-Din deceased. All these documentary evidence was ignored by the learned trial Court while non-suiting the plaintiff on the point of suit being time-barred. The suit is tiled on 23-12-1980. The plaintiff herself appeared and she has produced 9 witnesses in her support.
P.W.1 is Ali Ahmad. He stated in the examination-in-chief that the registry dated 28-9-1963. Is in respect of the total property. P.W.2 is Naqsh Muhammad, Record-holder who produced the Mutation No.334 dated 14-12-1963 and Mutation No.379 dated 11-2-1969 and stated that these mutations are in respect of the sale-deed dated 28-9-1963. On a question put in cross--- examination he stated that:- The observation given by the learned Appellate Court that the property which was to be allotted-in future was executed by the sale-deed dated 28-9-1963 and such a transaction is illegal, is correct.
P.W.3 is Muhammad Khan, who brought register RL-II of the Mauza and stated that the property in respect of the heirs of Naseer-ud---Din through Mutation No.19 was allotted to Mst. Salamat widow of Naseer-ur-Din 1 /4th share, Mehdi Hassan, the son 1/2 share and Mst. Ruqayya 1/4th share in Khata No.120 dated 26-10-1954 and in Khata No.196/120 the retaining units from the Khata No.120 were allotted in Khata No.196 on 20-9-1963 and it appears a note that vide order of the D.R.C. Dated 16-5-1961 Mst. Salamat Bibi was allotted 1/4th share out of the inheritance of Naseer-ud-Din and Mehdi Hassan 1/2 share and Mst. Ruqayya Bibi 1/4th in Khata No. 120 land measuring 106 Kanals, 12 Marlas and in Khata No. 196 land measuring 193 Kanals and 16 Marlas. Mst. Ruqayya appeared as P.W.3 and stated that she gave this property 18/19 years before on "Patta" to Jhanda etc. The total property was 9/10 acres. She received, first time, Rs.2,400 and the same amount for the second time. This money was paid by Sardar, Nazir and Bashir' and they got her thumb-impression at Purani Tehsil in confirmation of this "Theka" and she had not entered into any transaction of sale. In cross-examination she admitted that she filed a criminal proceedings under section 420, P.P.C.
Against the predecessor-in---interest of the defendants. In cross---examination she also denied that she entered into any transaction of sale, in fact her thumb-impressions were taken on the transaction of "Patta". P.W.4 is Siraj Din which is incorrectly written by the learned Appellate Court as Sardar which is a clerical mistake. This witness is the marginal witness of the sale-deed Exh.D.2. He stated that he knows Boota, the predecessor-in-interest of Jhanda. The property which was inherited by Mst. Ruqayya and the other units were given 20 years before to Jhanda, Boota and Lal on "Patta". The "Patta" was written for 10 years at Tehsil and his evidence was endorsed on that "Patta" and he witnessed the same before the stamp vendor. He was called to sign for "Patta" and no transaction of sale took place in his presence. There is nothing to disbelieve the evidence of this witness, who is a marginal witness of Exh.D.2. However, he stated that he does not know whether Mehdi Hassan signed the same and he did not see Mst. Ruqayya there. No question in respect of any enmity with the defendants is put to this witness to prove that whatever he was deposing is as false. Mehdi Hassan is P.W.5. He supported the plaintiff's version that the property was obtained by the defendants on lease and his signatures were taken on white paper. In cross-examination he has admitted that in this respect a criminal case is pending before the criminal Court and he is a witness thereto and when he thumb-marked the same Siraj Din was present. This is the witness Mehdi Hassan in respect of which Mst. Ruqayya as a witness has submitted that a fraud was committed with Mehdi Hassan his brother in respect of his share of inherited property by the same defendants and he filed a civil suit which was decreed in his favour and this factum is admitted by the D.Ws. P.W.8 is Heera. He stated that the property was given on lease and the defendants had come to the plaintiff's house to pay Rs.2,400 as money of "Theka". Mehdi Hassan wrote the receipt and he and Ahmad are also witnesses to the same. In his presence 11/12 years before Rs.2,400 were given and Imdad wrote the receipt. This witness was not cross---examined.
11. Now keeping in view all the documentary as well as oral evidence on record the findings of the learned Appellate Court are found to be well-reasoned and passed after due appraisal of the evidence on record while reversing the findings of the learned trial Court who has failed to apply its judicious mind to the material evidence produced by the parties oral as well as documentary evidence, on record. The limitation of this case will run from the discovery of fraud and the explanation is given by the plaintiff that in the year 1978-79 when the defendants refused to pay Lagan and as she was still owner of the suit land she filed a suit while challenging all the transaction of sale as the defendants had stopped to pay her the Lagan. It is also admitted that she is living at a, sufficient distance from the place where disputed property is situated. The most important factor which was altogether ignored and non---read by the learned trial Court was that the index units which were still to be confirmed were shown to be sold and sale was executed in respect of the property which was yet to be allotted to the petitioners and such a transaction is not voidable as the learned counsel for the petitioner has stated but is an illegal transaction altogether and the defendants have failed to explain the same in their rebuttal. Siraj Din P.W.4, Mehdi Hassan P.W.5 and Heera P.W.8 are supporting that the transaction was a transaction of "Patta" and during the time of the sale-deed a son was born from Mst. Ruqayya. Therefore, the limitation will start from date of knowledge of the discovery of fraud. It is also not explained by the learned trial Court that how two Mutation No.334 dated 14-11-1963 and Mutation No.379 dated 11-2-1969 admittedly about the same sale--deed dated 28-9-1963 are recorded on different dates. Rahim Bakhsh Lumberdar identifying Mst. Ruqayya is not produced.
The most important factor which is also ignored by the learned trial Court is the consideration of the sale-deed. The petitioners/defendants have miserably failed to prove the consideration of Exh.D.1 and Exh.D.2, the sale-deed. They have not produced any receipt of payment to Mst. Ruqayya.
They have also not produced any witness in front of whom they paid the consideration of the sale- deed of the disputed property and they have also failed to bring on record the reasons why the receipt of payment of sale transaction was not obtained by them as they were stranger to Mst.
Ruqayya. In this way they have failed to discharge onus that the transaction of sale was not tainted with fraud and misrepresentation. Therefore, the judgment passed by the learned Appellate Court is unexceptionable and not liable to be interfered in instant case. The instant civil revision is dismissed.
12. No order as to costs.