1989 PLP 803 (CLC)

5. On these contentions the trial Court framed the following issues for consideration:‑ (1) Whether the plaintiff has got a cause of action? O.P.P. (2) Whether the suit is not maintainable in its present form? O.P.D. (3) Whether the plaintiff is estopped to sue? O.P.D. (4) Whether the suit is within time? O.P.D. (5) Whether the suit is bad for non‑joinder of necessary parties? O.P.D. (6) Whether the plaintiff is entitled to the decree as prayed for? O.P.P.

7. Relief. .

6. On the evidence produced on these issues, the trial Court rejected the claim of the plaintiff‑respondent that she was unaware of the sale mutation and had not received the sale consideration. It held discussing issues Nos. 1 and 6 that she was required to prove that she was not there when the mutation was attested nor had the consideration passed to her. To this effect she produced no satisfactory evidence. Even as her own witness she failed to appear, leaving her stand in the plaint as totally unsubstantiated the trial Court observed. Also she did not care to examine the identifying and attesting witnesses in her support. Therefore, the trial Court concluded that she was not entitled to the relief claimed and as a result it dismissed the suit.

7. The plaintiff preferred an appeal questioning the finding of the trial Court to the effect that the transaction was genuine and the mutation had been validly attested and was with her consent. The learned appellate Court accepted the contention that plaintiff was a 'Pardanasheen' lady and it was for the other side to prove that she knew full well about the transaction and had given consent to the mutation, after it had been explained to her and she was made to understand its impact. This from the record did not appear proved to the appellate Court and seeing no satisfactory evidence to that effect on record it reversed the lower Court's verdict and passed a decree as prayed. Hence this revision petition.

8. Learned counsel for the petitioner contended that the plaint was totally silent as to the fact that the plaintiff was a 'Pardanasheen' lady. Also there were no details given in the plaint with regard to the fraud alleged. Under the law she had to setup a claim that she was a 'Pardanasheen' lady and then the law would extend its protection to her. She having made no such claim the learned appellate Court on its own could not have extended the benefit available to a 'Pardanasheen' lady. Accordingly a patent error had occurred on the part of the learned appellate Court in shifting the burden of proof to the defendants‑petitioners. They in no case would be required to prove the case of the other side. Assuming, he further contended, that she was a 'Pardanasheen' lady, she would not be absolved of the responsibility as such to disclose details of the fraud due to which she had claimed to have suffered. Not only she disclosed no such details, she examined no evidence as well to establish fraud. Accordingly, he maintained, the learned trial Court was right in refusing to follow the ratio of P L D 1965 Dacca 531.

9. Learned counsel for the plaintiff‑respondent in reply submitted that undoubtedly there was no assertion in the plaint to the effect that the plaintiff was a 'Pardanasheen' lady, but on record it stood proved that she was such a lady. Defendant No.l having disclosed as a witness that she and the other sisters who were party to the mutation, were all 'Pardanasheen' ladies and, therefore, a commission was issued by the attesting officer to record their statements. As such, he contended, no extra proof was required to establish that the plaintiff was a 'Pardanasheen' lady. And once it was accepted that she was such a lady the benefit available to her, as such, would require to be extended, notwithstanding the fact that she had made no such claim in her plaint. Accordingly, the learned appellate Court was justified to hold that the defendant‑petitioners had to supply evidence in proof of the mutation that it was a genuine one and the same being not there it struck down the mutation.

10. That the plaintiff is a 'Pardanasheen' lady cannot be denied. In the evidence of defendant‑petitioner 1 himself the fact stands admitted clearly. While explaining how the mutation was attested, he A disclosed as D.W.1 that his sisters alongwith his mother expressed a desire to relinquish their shares in the land to him and his brother. Accordingly, a mutation was entered. Since his mother as well as sisters were all 'Pardanasheen' women the Tehsildar appointed Qamar Zaman, Circle Girdawar to take down their statements as a Commission in the face of this candid admission from a person no less than a defendant in the case who was contesting the claim, what other proof will be necessary to have to find that plaintiff was a 'Pardanasheen' lady. Once it is settled that plaintiff was a 'Pardanasheen' lady the burden to establish genuineness of the impugned mutation will automatically shift to the other side. Even otherwise the burden should be on the other side because what the defendants had claimed was of positive nature and evidence to prove it was available.

11. It is noticeable that the defendants‑petitioners did not make any serious efforts to examine the available evidence, except the Circle Girdawar who acted as a Commissioner. The evidence of the Commissioner though in detail is far from satisfactory. He did not know any of the ladies as to who was who. Accordingly he took two witnesses, namely, Junab Gul son of Khani Gul and Shala Mir son of Reza Gul to identify them to him. On their identification he took statements of the ladies and forwarded the same to the attesting officer. His statement accordingly is to the same effect. Same, unless supported by Junab Gul and Shala Mir, the identifying witnesses, will not appear to have any significance in proof of the fact that plaintiff was there among the ladies, who consented to attestation of the mutation. It is regrettable that both of the said witnesses though alive had not been produced. Other evidence from the side of the defendants‑petitioners comprises the testimony of Lal Shahadat Khan defendant and Mst. Zewar Jana, their mother. Same cannot be termed as disinterested and of the standard required to establish the case. In fact, as it appears, they had endeavoured to develop a different case than the one disclosed in the written statement. It was claimed in the written statement that the plaintiff had received the sale consideration. In evidence it was shown that, in fact, it was a transfer by way of 'Bakhshish' (gift) and only a small amount of Rs.400 was paid to each of the ladies in order to please them. This makes the whole affair dubious. Accordingly, I feel inclined to agree with the learned appellate Court and find that the plaintiff did not consent to the disputed mutation. She was unaware of it and filed the suit as soon as she got to know of it.

12. An objection was also raised that the suit was not filed within time. It was stated that the suit should have been filed within three years and not six years, though the prayer was for a declaratory decree, because Article 95 of the Limitation Act will govern the suit which provides only a period of three years. I am afraid to such suits as the instant one the residuary Article of the Limitation namely 120 will apply wherein the period laid down is six years from the date of knowledge. Within this period the suit had been brought Then there is also a prayer for possession of the land for which the period prescribed is twelve years. Accordingly, the suit was well within time. For these reasons I see no merit in the revision petition and dismiss it with costs. A . A . /694/P Revision dismissed.