P L D 2006 Lahore 371 (PLP)

MIAN SAQIB NISAR, J.

Suit for the declaration filed by the predecessor-in-interest of respondents Nos.1-A to 1-C, seeking the declaration of being the owner in possession of the suit property measuring 844 Kanals and 17 Marlas situated in Mauza Dab Kalan, Shorkot, (described in more detail in the plaint) and also challenging the sale of the said land through the registered sale-deed dated 10-4-1973 (Exh.D-5), in favour of the petitioners, was dismissed by the learned trial Court vide judgment and decree dated 24-10-1992. But respondent/plaintiff's appeal has been accepted vide judgment and decree dated 17-4-1999 and the suit has been decreed by setting aside the judgment and the decree of the learned trial Court; hence this revision.

2. Briefly stated the facts of the case are that on 21-7-1985, Mst. Kurshid Begum, the predecessor-in-interest of respondents Nos.1-A to 1-C brought a suit for the declaration against the petitioners as also respondent No.3, her husband, stating in the plaint that on account of the estate left by her deceased father, she inherited the suit property; on account of the education of her children, most of the time, she was residing at Lahore, but the suit property remained in her possession through tenants. It is alleged that a month before the institution of the suit, petitioners/defendants attempted to illegally take the share of the produce from the tenants, upon which, the plaintiff got examined the Revenue Record, when it transpired that the petitioners in collusion with her husband/defendant No. 3, have prepared the disputed sale-deed dated 10-4-1973 (Ex.D-5), therefore, she challenged the transaction and the sale instrument, on the basis of the fraud, misrepresentation in the execution and registration of the sale-deed dated 10-4-1973; she also sought the declaration of being the owner in possession of the suit property; her reasons of challenge to the deed are highlighted in paragraphs Nos.6 and 7 of the plaint, which broadly are that the plaintiff is a pardanashin lady; the transaction is the result of fraud committed by the petitioner, in collusion with her husband and his manager namely Abbas Hussain Jaffari, she never appeared before the Sub-Registrar; never thumb-marked the sale-deed or any other agreement; the entire transaction was kept secret from her, which she discovered recently; that the transaction is hit by the MLR 64/115.

3. Respondent No.3, her husband, despite service did not appear and has been proceeded ex parte; whereas the present petitioner contested the matter and in their written statement, they have explained, how the final transaction was arrived at, as the plaintiff earlier had agreed to sell to them the suit-land in two parts, firstly she agreed for the sale of the land measuring 586 Kanals and 12 Marlas for a total consideration of Rs.2,10,000 and had executed the registered agreement to sell dated 1-3-1973, in favour of the vendees/defendants; she at that time, received an amount of Rs.1,50,000 as a part of the consideration, before the local commission appointed by the Sub-Registrar for the purpose of registration of the above agreement, while the balance amount was payable at the time of the registration of the sale-deed for which the parties had agreed 28-3-1973 as the target date thereafter, the plaintiff had further agreed to sell the land measuring 258 Kanals and 5 Marlas in favour of the defendents for an amount of Rs.92, 456 and another agreement dated 21-3-1973, was executed; out of the consideration amount, Rs.72,000 was received by the plaintiff, whereas, the balance amount of Rs.20,456 was to be paid to her at the time of the registration of the sale-deed and she subsequently, received the total consideration and thus executed the sale-deed for whole of the suit land measuring 844 Kanals and 17 Marlas within the extended period, as agreed between the parties through Ex.D-4. The petitioners/defendants denied of any collusion between them and the plaintiff's husband or any element of fraud, etc. in achieving the transaction, and/or any . violation of M.L.R. Out of the pleadings of the parties, learned Civil Judge framed the following important issues: (2) Whether the suit is within time? OPP(3) (3) Whether the plaintiff is estopped by her act and conduct from filing this suit ? OPD (8) Whether the sale-deed registered dated 10-4-1973 deed No.381 is illegal, against facts, based on fraud, forged, collusive, void, without consideration and ineffective against the rights of the plaintiff? (9) Whether the plaintiff is owner in possession of the land in dispute? OPP The plaintiff Mst. Khurshid Begum, examined one Rustam P. W .1, who is her cousin and deposed that no sale was made by her in favour of the petitioners. P.W.2, Salehon has also deposed to the same effect; P.W.3 is Khadim Hussain, who has appeared as an attorney of the plaintiff on the strength of power of attorney dated 6-2-1988 and his statement was recorded by the trial Court on 29-3-1988; besides the oral evidence, four documents were tendered in evidence by the respondents/plaintiff i.e. power of attorney Ex. P- t ; Mutation No.486 pertaining to some other land Exh.P-2; two Jamabandi for the year 1973-74 and 1969-70 Exh.P-3 and Ex.P-4 respectively.

4. As against the above, the petitioners examined ten witnesses, the important are D.W.2 Muhammad Iqbal, Senior Clerk Naib Zari Engineer, who stated that two tube-wells were got installed by the petitioners at the site. Muhammad Jamil Hashmi (D.W.3), is the official from the Registration Office, who has deposed about the registration of the sale-deed Nos.381 and

382. D.W.4, Haji Muhammad Islam Patwari, stated about the possession of the petitioners over the suit property since the time of the sale-deed and the mutation; Bashir Ahmed (D.W.6) is the scribe of the agreements to sell Exh.D-1 to Exh.D-5, which includes the extension of the agreement and the impugned sale-deed. Noor Muhammad, Advocate, was examined as D.W.7, he is the local commission, who was appointed by the Sub-Registrar for the purpose of the completion of the formalities for the registration of the documents/agreements. Faiz Bakhsh, (D.W.8) is the marginal witness of Exh.D-2 to Exh.D-5, whereas, the other marginal witnesses of Exh.D-5 namely Ghulam Sarwar and Abbas Hussain Jaffari, had died by that time. D.W.9 is Muhammad Amin, one of the petitioners/defendants and D.W.10 is Ashiq Hussain, who at the relevant time asserts to be the "Kardar" of the plaintiff. Besides the above oral evidence, the important documents adduced by the petitioners are Exh. D 1, the Temleeqnama made by the plaintiff in favour of his son namely Fazal Abbas Haider; this transaction was purportedly made to avoid the violation of the MLRs; Exh.D-2 to Exh.D-3 are the agreements to sell executed between the petitioners and the plaintiff, which are prior to the sale-deed; Exh.D-4 is the agreement about the extension of time and Exh.D-5 is the sale deed. Exh.D-14 and Exh.D-16 are the three judgments in the suit filed by a third party Ghulam Abbas, against the petitioners, challenging the above sale through the pre-emption cause. Exh. D-17 is the ex party decree, which was passed in a suit filed by the plaintiff lady against her son Fazal Abbas Haider Shah, challenging the Tamleegname Exh.D-1, which was allowed and the decree was passed by setting aside the said documents; Exh.D-20, is the mutation of sale in favour of the petitioners, whereas Exh.D-21 is the judgment in the declaratory suit filed by Muhammad Nawaz, etc, regarding the portion of the suit-land; Exh.D-22 to Exh.D-24 are the jamabandi for the year 1970-71, 1973-1974,1977-1978,1985-1986 and Exh.D-25 is the Girdawari for the years 1985 to 1990.

5. As mentioned earlier, the suit of the plaintiff/respondent was dismissed by the learned trial Court, vide judgment and decree dated 24-10-1992, but on her appeal, which was allowed on 17-4-1999, this judgment and decree has been set aside. Hence this revision.

6. For the purpose of brevity, the pleas raised by the learned counsel for the parties, are not being distinctly and specifically recorded; but the arguments shall duly reflect in the course of discussion made in this decision.

7. First of all, I shall dilate upon issues Nos.3, 8 and 9; as these issues are inter-linked and thus should be decided together. According to the clear averments made in the plaint, the plaintiff claims to be the owner in possession of the suit property; she has challenged the sale-deed Ex.D-5 in favour of the petitioners, primarily on the ground of fraud between the petitioners, her husband and Abbas Hussain Jafari, the Manager of her husband. But through her evidence, she has badly failed to prove her possession over the suit property; only oral, unsubstantiated and uncorroborated statements have been made by P.W. who is her cousin; P.W.2 her tenant in the same mouza, but not the cultivator of the suit-land and P.W.3 her attorney in this behalf. These witnesses have made very brief and sketchy depositions about the plaintiff's possession. For example, P.W. in the examination-in-chief stated that: P.W.2 deposed that:-- P. W.3 her attorney stated:-- From the above, it is clear that no details or the particulars about the possession have been given, though P.W.3 states that the plaintiff's possession is through the tenants, but without specifying their names and the terms of lease/tenancy. Anyhow, these witnesses, when subjected to the cross-examination by the petitioners, have not been able to sustain their above bald assertions. Besides, the plaintiff has deliberately omitted to produce any Revenue Record i.e. the jamabandis for the relevant period or the khasra girdawari to establish either her physical or the possession through the tenants. No proof of the payment of the land revenue was given by her. It is also not established, as to who were the tenants of the plaintiff cultivating the land; from whom the petitioners demanded the share of produce, as is alleged in para. No.6 of the plaint. Neither any tenant, who was cultivating the land under the plaintiff has been examined nor any lease/tenancy agreement in this regards has been produced by her. As against the above: the the petitioners have tendered in evidence the jamabandi for the years 1970-71, 1973-74, 1977-78, 1985-86 (Exh.D-22 to Exh.D-24), as also the khasra girdawari for the entire period from 1985 to 1990, Exh.D-25, which proves that the sale deed A has been given due effect in the record of rights and it is the petitioners, who are recorded as the owners in possession of' the property; besides, D.W.2, who is the Senior Clerk Naib Zarri Engineer Well-drilling Jhang, deposed that it is the petitioners, who on 16-5-1982 had applied for the subsidy grant on tube-well to his department, which was allowed and as per the record, the tube-well was purchased through the department and was installed at Square No.48, killa No.2, i.e. part of the suit-land. D. W.4 is the Patwari of the mouza, whereas , D. W.10 is the ex-Kardar of the plaintiff-respondent; both or them in their examinations-in-chief clearly and categorically stated about the possession of the petitioners over the suit property, particularly, D.W.10, deposed that it was so delivered on the day of the registration of the sale-deed, but these statements have not been subjected to the cross-examination. Moreover, the sale in favour of the petitioners, was challenged by Ghulam Akbar and Muhammad Nawaz, through pre-emption action initiated on 8-4-1974, which was contested by the petitioners and through the judgment Exh.D-14 dated 25-1-1981, the suit was dismissed. Ghulam Akbar Khan, etc. filed an appeal, which met the same fate and was dismissed on 27-4-1987 (Exh.D-15); both the judgments were challenged before this Court in R.S.A. No.122 of 1987, which was disallowed on I-11-1988. From the perusal of these judgments, which are hotly contested matters, it stands satisfactorily proved that the possession of the suit property was with the petitioners. Their possession is also confirmed through the judgment dated 28-10-1987 Exh. D-21, passed in the suit for declaration, filed by Muhammad Nawaz, etc., who have challenged the sale in favour of the petitioners, in which the plaintiff was a party and this suit was ultimately dismissed. But as mentioned earlier, against this overwhelming evidence, the plaintiff has only led oral evidence, which is inadequate and dearthy to prove her possession. Therefore, it stands convincingly established on the record that the plaintiff was not in possession of the property and her assertion in this behalf, made in the plaint remains unsubstantiated. Therefore, the findings of the appellate Court in this behalf, which are contrary to the above aspects and are the result of misreading and non-reading of the evidence, cannot sustain and are hereby set aside. It may be pertinent to state here that despite the above, the plaintiff did not seek the relief of possession and resultantly, her suit was also bad on account of the proviso to section 42, which was an essential consequential relief, but was not claimed for.

8. The other main proposition of the case are:--If the plaintiff has been defrauded in the sale transaction; no consideration was received by her; the transaction was hit by M.L.R. 64/115; therefore, the sale-deed Exh.D-5 should be annulled. The initial onus of this issue/proposition, was upon the plaintiff, her evidence has been scanned; P.W. and P.W.2 have not contributed much to the case of the plaintiff in this behalf, B because they have not stated anything about the fraud, etc., which is the mainstay of the plaintiff's case as set out in the plaint. This also is a very critical deficiency in the statement of P.W.3, Khadim Hussain, who has appeared as the attorney for the plaintiff. The obvious legal consequence of such lapse is, that though the plaintiff has structured her case on the foundation of fraud, but without proving the same and it is settled law that the pleading is not the proof of any assertion. Reliance in this regard, can be placed upon the judgments reported as Mst. Khair-ul-Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 at 31; Faqir Muhammad and others v. Abdul Momin and others PLD 2003 SC 594 at 601; Mst. Zareena and 5 others v. Syeda Fatima Bi PLD 1995 Karachi 388 at 391; Bakht Baidar and others v. Naik Muhammad and another 7.,QU4 MLD 341 at 351; K.A.H.Ghori v. Khan Zafar Masood and others PLD 1988 Karachi 460 at 463; Anjuman-e-Islamia, Sialkot v. Haji Muhammad Yonas PLD 1997 Lahore 153 at 157. 9 and 10(sic)

11. Despite and without prejudice to the above, even if going by the rule that it is the beneficiary of a document, who has to prove its valid execution for consideration by the executant; in my considered view, the petitioners have led ample evidence to establish/prove the sale transaction; the two registered sale agreements to sell Exh.D-2 and C Exh.D-3 and the extension Exh.D-4; as also the sale-deed Exh.D-5 and the tamleeqnama in favour of the plaintiff's son Exh.D-1, have been proved through the best evidence available to the petitioners; D.W.3 , Head Clerk, Registration Office Jhang, has brought the record/register of the documents No.381 (Exh.D-5) and 382 (Exh.D-1), upon which the signatures and the thumb-impressions of the plaintiff have been affixed and she was identified by Ghulam Haider Shah Girdazi, her husband, who in my view was the best and most close and qualified person to identify and advise the plaintiff. Haji Muhammad Aslam Patwari has appeared as D.W.4, who states that on the basis of the Document No.381 (Exh.D-5) Mutation No.493, with regard to the land measuring 844 Kanals and 16 Marlas was sanctioned in favour of the petitioners, whereas, on account of the other bearing No.382 (Exh.D-1), Mutation No.492 was attested in favour of the plaintiff's son. D.W.6, is the scribe of documents Exh.D-1 to Exh.D-5, who has testified about the execution of all these instruments, which according to him were explained to the parties, who thereafter executed the same in his presence, after understanding, these documents are also duly incorporated in the registers maintained by him; he categorically stated that the plaintiff was identified by her husband Sycd Ghulam Haider Shah, whom he know personally. About the sale-deed Exh.D-5, he has particularly stated. D. W.7, Malik Noor Muhammad is the local commission; who was appointed by the Sub-Registrar for the purpose of the registration of the Exh.D-4, he also stated that the document was explained to the plaintiff and after understanding and accepting the correctness of the document, she had executed the same; he further deposed that the plaintiff was identified by Syed Ghulam Haider Shah, the husband of the plaintiff, whom he personally knew. D.W.8, Faiz Bakhsh, is a stamp vendor, who states to have sold the stamp papers of Exh.D-2 to Exh.D-5; he also is the marginal witness of these documents and deposed that the husband of the plaintiff is his neighbour; the above documents were executed by the plaintiff in his presence, which were read over and explained to her. It may be pertinent to state here that the other two marginal witnesses of these documents, admittedly had died by that time; Ashiq Hussain (D.W.10) has stated in his examination-in-chief that he was the Kardar of the plaintiff at the relevant tune; she has entered into the sale agreement with the petitioners; she received the consideration, details whereof are given by him in his statement. He categorically mentioned that: Interestingly, these material depositions made by him, have not been subjected to cross-examination. It has not been suggested to him that in the years 1973, he was not the Kardar of the plaintiff, and that plaintiff personally had not gone to the office of the Sub-Registrar for the purpose of registration of Exh.D-5 and the witness as stated by was not accompanying her.

12. From the above quality and preponderance of evidence led by both the sides, coupled with the attending circumstances of the case such as, lack of plaintiff's possession over the suit property, since the time of its sale, the incorporation of the sale in the Revenue Record and the name of the purchasers appearing in the subsequent jamabandis, khasra girdawaris in the name of the petitioners, since the date of the transaction; delay in filing of the suit, for such a considerable period of time; pre-emption and other litigation about the same property and its outcome; the presence of the plaintiff's husband on each and every occasion as deposed by all the concerned witnesses and there being no denial in this behalf, no allegation made against the husband of being a party to the fraud, as alleged in the plaint, goes to prove that the sale was made by the plaintiff for valid consideration.

13. It may also be added that according to P.W.2, the plaintiff used to come to the village/mauza after every year/six months; it is most improbable that she would not know about the sale of the property, especially in the situation, when it has not been proved by her that she was in possession and was receiving any yield/income from the property.

14. It may also be significant to mention here that the plaintiff has failed to appear personally before the Court and therefore, the presumption can rightly be drawn against her for withholding the best evidence. Reliance in this behalf, can be placed upon the judgments reported as Mst. Farhat Begum and others v. Said Ahmed Shah and others 2002 CLC 1956 at 1969, Feroze Khan and others v. Mst Waziran Bibi 1987 SCMR 1647 at 1648, Shahnawaz and another v. Nawab Khan PLD 1976 SC 767 at 781, Sughran Bibi v. Mst. Aziz Begum and others 1996 SCMR 137 at 144, Abdul Ahad, and others v. Roshan Din and others 1979 SC 890 and 904, Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235, Malik Muhammad Ishaque v. Messrs Crose Theatre and others 1977 SC 109 at 133 and Surat Cotton Spinning and Weaving Mills, Ltd. v. Secretary of State AIR 1937 PC 152 at

157. Therefore, I am of the considered view, that the sale-deed, Exh.D-5 in favour of the petitioners dated 10-4-1973, is not the result of any fraud and E misrepresentation, rather is a genuine transaction for the consideration and the plaintiff has failed to prove the transaction void/voidable. Therefore, on account of the above, the findings of the Court of appeal on issues Nos. 3 and 8 are also set aside.

15. As regards the challenge to the sale on the basis of being violative of the M.L.R. 64/115, Mr. Aamar Raza A. Khan has rightly argued that the civil Court has no jurisdiction in this behalf, which can F only be exercised by a forum constituted under the relevant law. Reliance can be placed upon the cases reported as Ismail and others v. Muhammad Khan 2002 SCMR 1317, Mst. Aisha Bibi v. Nazir Ahmed and others 1994 SCMR 1937 and Muhammad Ashraf v. Abdul Aziz and others 2002 CLC

909. Besides, it may also be mentioned that in order to avoid the violation of the MLR, the plaintiff had executed the gift Tamleeqnama Exh.D-1 of 16 Kanals in favour of her son, but subsequently, on account of the collusive suit and a decree, this Temleeq Exh.D-1 was got set aside by her, this was perhaps done with an object to make a cause to challenge the sale of the petitioners.

16. I am not much convinced by the argument of Mr. Muhammad Ahmed Qayyum, that the plaintiff was a pardanashin lady and that the transaction in question on her behalf' should be adjudged to be void by applying the rule of pardanashin and illiteracy, suffice it to say that the plea of pardanashin lady though has been raised in the plaint, but this has not been so proved through the evidence of the plaintiff; she has been identified by her husband with whom, she has been living throughout, he was the best person to advise and identify the plaintiff at all the levels and the stages; no fraud has been proved against him. It is not established on the record, if the relationship between the husband and wife were sour before or after the transaction, therefore, even if the plaintiff was a pardanashin lady, yet she had independent advise of her husband resultantly, the transaction in question, could not be declared void on that account. It may be reiterated even at the cost of repetition that the fraud pleaded against the husband has not been proved by the plaintiff in her evidence.

17. As regards the issue of limitation is considered, the suit has been filed after more than a period of 12 years and three months; it is a composite suit for the declaration under sections 42 and 39 of the Specific Relief Act. For the suit falling under section 39 of the Act ibid, Article 91 of the Limitation Act, is applicable for which, limitation prescribed is three years. However, if considered that the suit mainly is for the declaration and the relief of cancellation is only an ancillary or incidental thereto, at the most, Article 120 shall be applicable, under which, the limitation is six years from the date, when the right to sue accrues. In the instant case, such right accrued to the plaintiff' on 10-4-1973, when the sale-deed Exh.D-5 was executed/registered, therefore, such suit brought alter more than 12 years was out of limitation. But, if the plaintiff wanted to attain the benefits of section 18 of the Limitation Act, she should have taken such plea in the plaint, which should have been drafted conforming to the provisions of Order VII, Rule 6, P.P.C. however, not only the plaint is lacking in this behalf but also the fraud has not been proved by the plaintiff as held above, thus necessarily, the plaintiff's suit was barred by limitation and has been rightly so held by the learned trial Court. The view taken by the Court of appeal that". The appellant/plaintiff is a pardanashin lady, therefore, this is accepted that she (appellant/plaintiff) carne to know about this fraud when her tenants were removed and she filed the suit for declaration. This issue is decided against the H respondents in favour of the appellant" is absolutely misconceived and has been made beyond the case of the plaintiff; firstly, she has not proved to be a pardanashin lady; she has failed to prove the fraud and it is neither her case, nor proved that her tenants were ever in possession of the property, who were ousted by the petitioners, which event could give her a cause of action to sue for the declaration; this issue thus has been again wrongly decided by the Court of appeal. For what has been stated above, the judgment and decree of the learned Court of appeal is not only based upon misreading and non-reading of the record, but also by misapplication of the law, resultantly, same cannot be sustained, which is hereby set aside, with the result that by upholding the judgment and decree of the learned trial Court, the suit of the plaintiff remains dismissed. This revision is accordingly allowed. M.B.A./M-156/L???????????????????????????????????????????????????????????????????????????????? Revision allowed.