2007 PLP 522 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners-plaintiffs, namely, Mst. Rashida Bibi and Mst. Ruqayya Bibi are the sisters of Ghulam Ghaus respondent-defendant. The petitioners impugn the appellate judgment and decree, dated 4-4-2006, whereby the decree of the learned trial Court, dated 15-9-2005 was reversed and, as a consequence, the declaratory suit filed by the petitioners-plaintiffs was dismissed.

2. The facts of this case are straightforward. The petitioners along with the respondent inherited agricultural land from their father Riaz Din. Subsequently, vide sale Mutation No.94 (Exh.P-1) sanctioned on 28-6-2000, the land inherited by the petitioners measuring 23 kanals, approximately, was purportedly sold by them to the respondent-defendant. The petitioners, upon coming to know of the alleged sale, filed their declaratory suit, out of which this petition has arisen. According to the petitioners, they did not make any sale in favour of the respondent and nor did they receive any consideration from him. It was stated by the petitioners that the respondent had obtained their thumb-impressions with the object of getting identity cards prepared for them.

3. The suit was resisted by the respondent-defendant. The learned trial Court framed three issues of which issue No.2 is dis-positive of this case. This issue was framed in the following terms: "Whether the impugned mutation of sale No.94, dated 28-6-2000 is forged and fictitious documents as the plaintiffs never appeared in the same, said mutation is liable to be set aside? OPP.

4. Parties led evidence on the above issue, which was considered by the learned trial Court. As noted above, the suit was decreed by the trial Court. Learned counsel contends that the well-reasoned judgment of the learned trial Court has been reversed by the learned appellate Court without valid basis.

5. Here it may be added that Bashir Ahmad Lamberdar, who was one of the witnesses to the impugned mutation (Exh.P-1), appeared as P.W.2. He deposed that the respondent had told him that he and his sisters were entering into an exchange and the mutation was in respect of such exchange. This is a material circumstance because it detracts from the authenticity of the sale alleged by the respondent.

6. The respondent appeared as his own witness and also produced Rana Maqsood Ahmad as D.W.2, who was the other witness to the mutation. D.W.2 deposed that no consideration had passed in his presence. He also sated that the petitioners were not observing pardah at the time when the mutation was sanctioned. On this score, he was contradicted by the respondent himself, who appeared as D.W.1 and testified that the petitioners were in pardah at the time.

7. The rapt Roznamcha was not produced on the record by the respondent and neither the Halqa Patwari or the Revenue Officer were examined by the respondent-defendant to prove the mutation.

8. In the above circumstances, it was contended that the discrepant testimony of the D.Ws., read with the statement of Bashir Ahmad Lamberdar as P.W.2, was sufficient to show that no sale was made by the petitioners in favour of the respondent-defendant. The learned appellate Court, however, has mainly proceeded on the premise that the thumb-impressions of the petitioners on the mutation had been proved. Learned counsel contended that the circumstances, in which the thumb-impressions of the petitioners were placed on certain documents and their explanation was sufficient to prove the case of the petitioners-plaintiffs. I may add that mere affixation of thumb impressions on the mutation, could not per se, be treated as proof of sale.

9. It is also apparent from the testimony of the respondent as D.W.1 that two other sisters of the petitioners, namely, host. Razia and Mst. Safia had given their share of the property inherited by them to their mother, who had, in turn, transferred it to another brother of the parties, namely, Abbas. According to learned counsel for the petitioners, this was also a motivation for the respondent to grab the property of the petitioners.

10. Learned counsel for the respondent was not in a position to advance any strong argument to controvert the above submissions. He, however, referred to the cases titled Aman Ullah Khan v. Abdul Majeed Khan and others (1995 CLC 1) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293) to contend that where signatures or thumb-impressions were admitted, the learned Courts deciding the said precedent cases, had held that the parties were bound by their signatures/thumb-impressions.

11. I have gone through the cited precedents and find the same to be clearly distinguishable on facts. In the said cases the parties involved were independent contracting parties unrelated to each other. There was no occasion for one of the parties to sign documents which were blank. In the present case, the petitioners, being the sisters of the respondent, were justified in reposing their trust in him and putting their thumb-impressions on Exh.P.1 on the latter's asking. In this view of the matter, the case-law cited on behalf of the respondent does not advance his case.

12. In the foregoing circumstances, I find that the impugned appellate decree is a result of material irregularity in the exercise of the Court's jurisdiction. The same is not sustainable legally and is, therefore, set aside. As a result, the decree of the learned trial Court, dated 15-9-2005 stands restored. The petitioners shall also be entitled to their costs throughout. F.B./R-67/L Petition allowed.