2004 PLP 223 (YLR)

(5) Whether the plaintiff is estopped to sue? (6) Whether the suit is improperly valued for the purpose of court‑fee and jurisdiction? (7) Whether sale consideration has not been paid to the defendants? (8) Whether the plaintiff is entitled to decree as prayed for? (9) Relief.

4. Bahadar Sher, plaintiff in order to prove his case examined six witnesses in all including Jamal Shah, A.D.K. and Imroz Khan and Said Rehman, Patwaris Halqa Akora Khattak. As against this, six witnesses were also examined on behalf of the defendants.

5. Bahadar Sher (P.W. 3) stated that he purchased suit‑land in the sum of Rs.60,000 from defendants. The statements of the defendants were recorded through commission. They thumb‑impressed the statements and thereafter mutation was attested. It is in his cross‑examination that sale price was paid through Faqir Hayat. He denied the suggestion that the thumb- impressions of the defendants are forged and manipulated.

6. Faqir Hayat (P.W.4) admitted his relationship with the plaintiff and stated that his mother and sisters (defendants) sold the suit‑land to plaintiff for a sum of Rs.60,000 and payment was made through him. He also stated that statements of the defendants were recorded through the commission namely Ghaniur Rehman. The attesting witnesses were Malik Hassan Khan, Numbardar, Shahzad Gul and Faqir Hayat himself.

7. Qazi Muhammad Shaukat (P.W. 5) stated that Malik Muhammad Hassan Khan, Numbardar, has correctly signed the mutation. He is son‑in‑law of Malik Muhammad Hassan Khan, who is dead now.

8. Ghaniur Rehman (P.W. 6) stated that in 1983 he was working as Office Kanungo Nowshera. He was appointed as commission to record statement of Mst. Dawa Jan, Mst. Basraj Begum, Mst. Amir Begum, Mst. Bas Pari and Mst. Shaukat of village Akora Khattak. He recorded their statements on the identification of Hassan Khan, Numbardar, Shahzad Gul and Faqir Hayat. He recorded the statements and they correctly thumb‑impressed on Mutation No.5852. Hassan Khan, Numbardar put his signature as marginal witness whereas Shahzad Gul and Faqir Hayat thumb -impressed on the statement.

9. Rawa Jan (D.W. 1) stated that she has sold her share of land in favour of the plaintiff and her daughters were witnesses of sale. The daughters have thumb -impressed the mutation as marginal witnesses to sale. The sale consideration was not paid to her daughters. One of her daughters namely Mst. Shaukat was not present and another woman namely Mst. Riaz had thumb‑impressed the mutation in her place. Her daughters have not sold their share and they are marginal witnesses to the mutation.

10. Mst. Siraj Begum, Mst. Shaukat Begum, Mst. Amir Begum and Mst. Bas Pari daughters of Mst. Dawa Jan also gave more or less the same statement and denied having sold their share to the plaintiff.

11. Nawab Ali Khan (P.W. 6) special attorney of the defendants stated that defendants are marginal witnesses to the mutation and they have not sold their share in suit‑land. Under the cross‑examination he denied the suggestion that defendants are repudiating the transaction at his instigation.

12. Upon consideration of the evidence, a resume of which has been given above, learned Civil Judge/Judicial Magistrate, Swabi, who tried the suit, through his judgment and decree dated 4‑11‑1999 partially decreed the suit holding that defendant No.5 namely Mst. Dawa Jan had only sold her share in suit‑land in favour of the plaintiff. The claim of the plaintiff regarding the remaining land was dismissed. An appeal was preferred there-against before the learned District Judge, Nowshera, who accepted the same vide judgment dated 11‑7‑2000 holding that the entire suit‑land was sold by Mst. Dawa Jan and her daughters in favour of the plaintiff.

13. Feeling aggrieved, instant revision petition has been filed under section 115 of the Code of Civil Procedure (Act V of 1908) principally on the ground that decision of the learned District Judge runs contrary to the material on record oral as well as documentary and thus the impugned judgment dated 11‑7‑2000 is not sustainable.

14. I have heard at length Mr. M. Aman Khan, Advocate for the petitioners and Mr. Shahabuddin Burq, Advocate for the respondent. I have also gone through the record of the case with their assistance.

15. Learned counsel for the petitioners vehemently contended that the Courts below have not read the evidence on record in its true perspective and have acted illegally and with material irregularity which has materially prejudiced the interest of the petitioners. materially prejudiced also submitted that the findings returned against the petitioners are result of misreading and non‑reading of evidence and the Courts below have fallen into error and arrived at wrong conclusion by holding that the entire suit‑land was purchased by the respondent and the petitioners were left with no interest in it. Concluding the arguments, the learned counsel reiterated that tile petitioners were Pardanashin' ladies and had no independent advice and they thumb impressed the mutation in question as marginal witnesses and not as vendors of suit‑land. To argument the contentions, he placed reliance on Suratan Nessa Bibi v. Muhammad Naimuddin Mondal and others PLD 1965 Dacca 531, Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Karachi 324 and National Bank of Pakistan, Karachi v. Dawood Yousuf Mithani and 2 others PLD 1978 Karachi 42.

16. Learned counsel for the respondent, on the other hand, submitted that sufficient material was available on the file in support of the claim of his client to prove that suit‑land was purchased by the respondent from the petitioners in consideration of Rs.60,000 and sale price was paid through Faqir Hayat P.W. son of Mst. Dawa Jan, one of the petitioners and that nothing was produced to dislodge the claim of the respondent.

17. It is true that the judicial pronouncements have woven the clock of protection for 'Pardahnashin' ladies, who are not believed to understand the nature of business transaction but in the present case, it stands proved that statements of the petitioners were recorded through commission and thumb‑impressions were affixed on the mutation in question in presence of witnesses including Faqir Hayat, son of petitioner No.5 and brother of the remaining petitioners. The respondent has also succeeded to show that payment of sale consideration was made to the petitioners through Faqir Hayat P.W. It is not denied that the onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the vendor herself. The party taking advantage, is required to show to the Court that the deed was explained and signed/thumb- impressed by the executant and she adopted it with full knowledge and comprehension. In the instant case, the respondent has brought overwhelming evidence, which has gone unrebutted, to establish that he purchased the suit‑land from the petitioners in consideration of Rs.60,000, the mutation in question was duly thumb‑impressed by the petitioners and others, statement of the petitioners was recorded through commission and that the sale consideration changed hands through Faqir Hayat P.W. There is absolutely nothing on the file to show that a fraud had been played on the ladies and that they had thumb‑impressed the mutation only as marginal witnesses and not as vendors. If the evidence of the parties is weighed in the scale of veracity, the scale tilts in favour of the respondent. He has produced overwhelming evidence. Though his witnesses were subjected to extensive cross‑examination but nothing material could be elicited. The comparative analysis of the evidence led by the parties conclusively reveals that the evidence produced by the respondent is much weighty than produced by the petitioners. No material misreading or non‑reading of the evidence has been indicated to displace the well‑reasoned findings of the learned District Judge. It may not be out of place to mention here that at the trial the petitioners have totally resiled from pleas raised in written statement. The initial stand of the petitioners highlighted in the written statement is that they have entered into no transaction with the respondent and have received no sale consideration whereas subsequently it is asserted that the petitioners thumb‑impressed the mutation in question as marginal witnesses and not as vendors. Petitioners Nos. 1 to 4 are married and residing with their husbands: There was no occasion for them to thumb‑impress the mutation as marginal witnesses and allow their husbands or other male members of their family to stay back.

18. Adverting to the case‑law cited by learned counsel for the petitioners, same is distinguishable and proceeds on different facts. It is not helpful to the petitioners in any manner. In the cited rulings the executants of the document were 'Pardahnashin' ladies, who because of their ignorance, inexperience of business matters and family conditions were not believed to understand the nature of business transaction and the document was found to have been executed without independent and disinterested advice in the matter whereas in the present case, the position is altogether different 'and no fraud appears to have been perpetrated on the petitioners.

19. In the result and for the foregoing reasons, finding no flaw in the impugned judgment of learned District Judge, Nowshera, I maintain the same and dismiss the revision petition with no order as to costs. M.H./930/P Revision dismissed.