This revision petition is directed against the judgment and decree passed by Civil Judge, Banda Daud Shah in Suit No,8/1 of 1994 dated 16-11-1996 which were also upheld in Appeal No,17/13 of 1997 dated 18-9-1998 by the District Judge, Karak.
2. Respondents No,1 and 2 brought a suit against their real brothers, the petitioners, their mother (now dead) and respondents No,3 to 173 (some of them were impleaded as legal heirs on the death of original defendants). The relief sought was declaration of their title in the land fully described in the heading of the plaint with consequential relief. In the averments of the plaint, it is alleged that their father Mian Dad was owner of landed property in Alimadi Banda and Barbara Banda. He was also mortgagee of certain lands fully mentioned in the heading of the plaint. On the death of Mian Dad his Inheritance Mutation No,2336 respecting landed property situate in Ahmadi Banda, Inheritance Mutation No,831 respecting property situate in Barbara Banda were entered and attested on 23-8-1966 in favour of the plaintiffs, the petitioners and their mother, then alive, being legal heirs. Subsequently, the petitioners while entering into collusion with the Revenue Staff without the knowledge and consent and permission of the plaintiffs, their share was transferred to the names of the petitioners. The transfer was made on the fictitious Sale Mutation 2358 by the plaintiffs and their mother in respect of their ownership of the landed property in Ahmadi Banda for sale consideration of Rs,400 while their title in Barbara Banda were alienated through sale Mutation No,859 for a sale consideration of Rs,2,000 and Sale Mutation No,860 for Rs,1,666.65 regarding the lands mentioned therein. The plaintiffs alleged to have not sold the said lands to the petitioners and had not received any sale consideration. They did not appear before the Revenue Officer for attestation of the aforesaid three sale mutations and even their statements were not recorded in this respect by any body. One Fazal Amin, Member, Union Council and also related to the plaintiffs and contesting respondents was appointed as local commission by orders dated 28-3-1967 and 29-3-1967. Since the said local commissioner did not enter into collusion with the petitioners, he was replaced by Girdawar Circle who recorded the fictitious statements of the plaintiffs and their mother on 4-6-1967 regarding their consent of attestation of sale mutation in favour of the petitioners and the sale mutations based on collusion were accordingly attested. The attestation was not made in the concerned Revenue estate but in Revenue estate of Mauza Teri.
3. The petitioners filed their written statements jointly with the other defendants wherein they raised a number of preliminary objections and denied the factual assertions of the plaintiffs. Pleadings of the parties were culminated in the following issues:--
(1) Have the plaintiffs got a cause of action?
(2) Are the plaintiffs estopped?
(3)Is the suit within time?
(4)Is the suit incompetent in its present form?
(5)Is the suit bad for mis-joinder or non-joinder of parties?
(6)Is the suit false and the defendants are entitled to special costs?
(7)Is the suit bad for mis-joinder of causes of action?
(8)Are the Sale Mutations Nos. 2358, 859 and 860 from the plaintiffs in favour of the defendants Nos.1 and 2 fraudulent and ineffective on plaintiffs' rights?
(9) Are the alienations made by the defendants inter se fraudulent and ineffective on the plaintiffs' rights?
(10) Are the,plaintiffs entitled to the decree as prayed for?
(11) Relief. Both the parties adduced evidence as they wished to adduce and in the conclusion of the trial, suit of the plaintiffs was decreed: The two petitioners herein feeling aggrieved from the decree preferred an appeal to the Court of District Judge which was also dismissed. Thus, the instant revision has been filed against the concurrent findings of the two Courts below
4. I heard the learned counsel for the parties and perused the record. The petitioners have also moved Civil Miscellaneous No,427 of 2003 wherein they have offered a special oath under section 8 of the Oaths Act, 1873 in the terms mentioned in the Civil Miscellaneous. They have also offered to take Oath in case the plaintiffs refused to do so. The learned counsel for the plaintiffs-respondents refused the offer and prayed for disposal of the revision petition on merits.
5. The law provides for disposal of civil disputes on taking special oath covered by the provision of Oaths Act, 1873 (Act X of 1873) and also through special oath under Article 163 of the Qanun-e- Shahadat Order, 1984. Section 8 of Act X of 1873 reads as follows;-- "8. Power of Court to tender certain oaths.----If any party to, or witness in, any judicial proceedings offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him."
The provision contained in the aforesaid section of law reveals that if a party or witness to the proceedings make an offer for disposal of dispute on special oath, it will be obligatory and not mandatory for the Court to accept it. The offer of taking a special oath can only be accepted if it is not repugnant to justice and decency. In the present case, the petitioners never offered for disposal of the suit on taking special oath by the plaintiff or in the alternative by them. Even at the appellate stage the petitioner did not offer special oath and both the parties relied upon the evidence adduced by them' in the trial Court. In these circumstances, it would be against the interest of justice and decency particularly when the plaintiffs-respondents have refused to accept the offer, to accept the Civil Miscellaneous for disposal of the litigation on special oath.
6. Under Article 163 of the Qanun-e-Shahadat Order, 1984, the Court can competently dispose of a dispute on the basis of oath taken by the plaintiffs in support of their claim and the defendants when called upon to deny the claim either take oath in denial or refuse to take oath. Article 163 has been enacted for an eventuality where the plaintiffs could not establish their claim through evidence for cogent reasons. In such circumstances, the plaintiff may offer to take oath in support of his claim. If the plaintiff taken oath, then the Court shall call upon the defendant to deny the claim on oath. If the defendant refuses to take oath in denial the Court may consider the statement on oath by the plaintiff in support of his claim and pass a decree. But if the defendant opted to take oath in denial of the claim, then the suit of the plaintiff shall be dismissed. Article 163 will come into play only when the plaintiff could not substantiate his claim through evidence but when a claim could be established through evidence, there will be no occasion for the disposal of the suit on taking oath by the plaintiff in support of his claim and oath by the defendant in denial of the claim.
Only in a situation where both the parties agreed upon B disposal of the suit on the basis of general or special oath and both of them reduce their consent in this regard into writing and determining the terms of oath, in such circumstances, the suit could be disposed of by taking oath in the terms settled by the parties and compliance of the oath, parties shall be bound by it and the Court shall dispose of the matter in the same manner. In the present case, the plaintiffs had not offered disposal of the suit on the basis of oath as they were confident to establish their claim by means of evidence.The offer made by the defendant-petitioners was also denied and thus without an agreement between the contesting parties for disposal of the dispute through special or general oath, the Court cannot force the plaintiff-respondent to take oath in support of their claim or to accept the offer of the petitioner-defendants for taking oath in rebuttal of the claim of the plaintiffs-respondents. In these circumstances, the prayer made in the Civil Miscellaneous Application cannot be granted, thus dismissed.
7. In support of their claim, plaintiffs-respondents 1 and 2 have produced Patwari Halqa and A.D.K.
In addition to the statement of Mst. Noor Jehan P.W.3, one of the plaintiff. They have established through evidence that the suit land was originally owned by Mian Dad which was devolved upon the plaintiffs being daughters, petitioners being sons and Mst.Noor Namula being widow. The Inheritance Mutation No,831 was attested on 21-2-1967 and Inheritance Mutation No,2336 attested on 23-8-1966 in favour of all the aforesaid legal heirs of Mian Dad. The lands transferred to the plaintiffs-respondents through Inheritance Mutation was subsequently transferred to the petitioners through sale mutation mentioned above. The petitioners who are beneficiaries under the sale mutation have produced Laiq Zada, the petitioner-defendant as solitary witness of the defendants. He has admitted that his father died in 1966 and his legacy was devolved upon his two sons, two daughters and a widow. Subsequently, in 1966, the plaintiffs and their mother Mst.Noor Namula sold away their entire holding to the petitioners and the plaintiffs being Pardanashin ladies were examined by Girdawar Circle as local commission. Thereafter, the sale mutations were attested. The plaintiffs as vendors were identified by Subedar Major Rahim Dad, their maternal uncle. The petitioner-defendants have neither produced Rahim Dad identifier of the vendor of the disputed sale mutations nor the Girdawar Circle who allegedly recorded the consent of the vendors who were Pardanashin ladies in support of transfer in petitioners' favour. The solitary defence witness has stated that the entire sale transaction was completed through the said Rahim Dad who happens to be father-in-law of petitioner No,2. The sale consideration of Rs,2,000, Rs,400 and Rs,1,666.65 as mentioned in the three sale mutations were paid to the plaintiffs through Rahim Dad in presence of Girdawar Circle who was appointed as local commission. Rahim Dad was stated to have died on the day of recording statement of D.W.1 but his name or the Girdawar Circle who was appointed as local commissioner were not mentioned in the list of witnesses produced by the defendants and the defendants even did not bother to produce any secondary evidence to prove the genuine sale in their favour through the disputed mutations.
8. It is undisputed that the suit land owned by Mian Dad, father of the contesting parties, was correctly devolved upon all his legal heirs in accordance with Shariah and the inheritance mutation in this regard was properly entered and attested. The share of plaintiffs-respondents was subsequently mutated in petitioners' favour through sale mutation which are the subject-matter of the dispute. It is also an .Admitted fact that the plaintiffs are the real sisters of petitioners and they are Parda-observing ladies. The validity of the sale deeds in favour of the petitioners was questioned on the basis of fraud. In identical situation, the case of Mst. Miraj Bibi and others v.
Province of Punjab (2001 SCM R 1591) came before the august Supreme Court and it was held: "It is now well-settled that in cases where pleas of fraud, deception and misrepresentation have been taken by illiterate Pardanashin ladies in the alleged disposal of their property, the onus in such cases lies on the person who takes advantage of the transaction to prove the genuineness and bona fide of the documents through which transaction has been executed and that the contents of such documents were fully conceived and understood by executing independently and freely." Reference may also be made to the case of Mst. Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642).
9. The petitioners who are beneficiaries under the disputed sale mutations were legally burdened to prove the genuineness of the sale transaction. The petitioners have miserably failed to establish that the suit land was genuinely sold to them against the sale considerations mentioned in the sale mutations. It was not established that the plaintiffs were duly examined by the Girdawar Circle as local commissioner and also the petitioners have miserably failed to establish transfer of sale consideration to the plaintiffs. It is unrebutted evidence of the plaintiffs that initially one Fazal Azim, Member of the Union Council and also closely related to the parties from whom the plaintiffs were not observing Parda was appointed as local commissioner through order in writing dated 26-3- 1967 and 29-3-1967 but he was subsequently replaced by Girdawar Circle for examination of the plaintiffs as local commissioner. The alleged identifier of the plaintiffs as vendors was though equally related to the contesting parties being maternal uncle but he was more closer to petitioner No,2 in relation being his father-in-law. Even no attempt was made to produce the said identifier although he had died during the proceedings as stated by the solitary witness of the defendant in his statement but there is no evidence to show that at the time of submission of list of witnesses by the defendants side he was not alive and even no attempt was made to produce D secondary evidence due to the death of identifier. There is no corroborative evidence whatsoever of the solitary deposition of one of the petitioners-defendants in the trial Court although sufficient opportunity was afforded to them to establish the genuineness of sale mutation in their favour.
10. As redards the illiterate Pradanashin ladies, in a case where male members of the family were claiming adverse possession against Pardanashin ladies, the august Supreme Court has observed in Ghulam Ali and others v. Mst.Ghulam Sarwar Naqvi (PLD 1990 SC 1) as follows:-- "Dealing particularly with females it is to be noticed that: Where one is concerned with Pardanashin Muslim females, different considerations apply from those that apply between adult males even as regards adverse possession. In the latter case if the possession is neither obtained by force nor by fraud nor in secret, it does not matter that it is in fact not known to the person against whom adverse possession is alleged, the law is satisfied if that person would have known had he been acquainted with what was going on in the world. In their case it is necessary to find not mere adverse possession but ouster."
The law and practice for administration of justice has drawn a line in the case where Pardanashin lady is a party than the case in between adult. In case where Pardanashin lady is party to a suit. It would be the burden of male contestants to establish the ouster of the Pardanashin lady from ownership or possession or any other right allegedly transferred to the male party. In the present case, the petitioners-defendants who claim to be the vendees of the plaintiffs' share in the legacy of their father have miserably failed to adduce any cogent evidence to establish the genuineness of the sale mutations or to rebut the assertion of fraud or to ouster the Pardanashin illiterate female plaintiffs.
11. 'Yet in another case where gift by the illiterate female in favour of her brother as donee was made sub judice before the Court, the said case is titled Fateh Sher v. Sharif Khasun and others (1986 CLC 320) and the Court arrived at the following conclusion: "We cannot also lose sight of the fact that the donors in this case are illiterate peasant women.
They are sisters of the donees and are thus so related to them. In the case of gift allegedly made by them strictest proof of the factum of gift has to be insisted upon. The petitioners unfortunately have not been able to lead evidence of that standard."
11. The learned counsel for the petitioner lastly submitted that the plaintiffs-respondents have claimed declaration of their title in respect of their share and have questioned the legality of sale mutation on their behalf only while the sale mutation to the extent of their mother Mst.Noor Namula could not be challenged by them, but the two Courts below have decreed the suit of plaintiffs- respondents and have cancelled the sale mutations in toto which also include the share of Mst.Noor Namula. The learned counsel representing the plaintiffs-respondents did not controvert the contention and submitted that the sale mutations were challenged to the extent of share of the plaintiffs allegedly sold to the petitioners through the said mutations. The contention of the learned counsel for the petitioners is misconceived in the sense that plaintiffs/respondents have sought the declaration of their title to the extent of their share and have questioned the legality of sale mutations to the extent of their share only. Mst.Noor Namula, mother of the plaintiffs was arrayed as defendant No,3 who has filed a joint written statement with the petitioner and have not denied her transaction with the petitioners regarding her share. The trial Court has granted decree to the plaintiff against the defendants and the effect of the disputed sale mutation was considered qua plaintiffs only. Mst.Noor Namula is now dead and the petitioners and plaintiffs-respondents are admittedly their Shari heirs. If any property is found left behind her on the day of her death would be devolved upon her Shari heirs and the disputed sale mutations shall stand cancelled to the extent of share of the plaintiffs/respondents,.
12. In view of the aforesaid facts and circumstances and taking guidance from the quoted case- law, I arrive at conclusions that the concurrent findings of the two Courts below are neither suffering from any jurisdictional or any other legal infirmity, or misreading or non-reading of evidence immune from interference by this Court under its revisional jurisdiction. Resultantly, this revision petition is dismissed alongwith the Civil Miscellaneous with no order as to costs.