2004 PLP 1148 (YLR)

Mst. Rasheea Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref. (d) Specific Relief Act (I of 1877)

S.39

Document, cancellation of

Suit for

Suit for cancellation of mutation of exchange was a suit under S.39 of Specific Relief Act, 1877 and such a suit could be filed even where the plaintiff was not in possession of the land in dispute. Fateh Ali Shah and others v. Muhammad Bakhsh and others AIR 1928 Lah. 516 and 1999 Indian Cases 165 (1936) page 625 ref. Mohsin Raza for Petitioner This civil revision assails judgments and decrees dated 23-5-2003 and 10-11-2003 passed by Civil Judge and Additional District Judge, Sheikhupura, whereby suit of the respondent was decreed and appeal of the petitioner was dismissed, respectively.

2. A short factual background of the case is that the respondent Surraya Bibi, filed a suit for declaration on 25-2-1996, claiming that she is owner in possession of 17 Kanals, 16 Marlas of land, out of which one acre of land was agreed to be exchanged by her with the petitioner, against his we acre of land but instead the petitioner fraudulently got included her entire land in Mutation No.492 sanctioned on 18-10-1994 which was sought to be adjudged by her being illegal, void and ineffective of her rights.

3. The petitioner being a defendant in the suit contested it by controverting the assertions of the respondent in her plaint through his written statement and controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter, after doing the needful on the basis of due appraisal of his evidence vide his judgment and decree dated 25-5-2003, granted the respondent decree as prayed for. The petitioner aggrieved of this decision, filed an appeal before the Additional District Judge, Sheikhupura, but remained unsuccessful as his appeal was dismissed on 10-11-2003. Now she has come in revision before this Court for setting aside to concurrent judgments and decrees.

4. Learned counsel for the petitioner submits that suit by the respondent which was simplicitor for declaration, was not maintainable, at law, as the respondent was not in actual physical possession of the land in question. He further submits that execution of agreement of exchange, and attestation of mutation, on the basis thereon, was duly proved by the petitioner, but a contrary view of the two Courts below is not in accordance with the evidence on the file. He further elaborates his arguments by saying that respondent is not an illiterate lady as she signs fluently and thus, cannot be graded as Pardanasheen lady. It is also his argument that exchange transaction could not be annulled as it was proved to have undertaken with free consent of the parties. Learned counsel for the petitioner also contends that findings of the two Courts below that agreement to exchange is not proved on the file is contrary to decision of this Court whereby it was held that one marginal and a scribe in support of an agreement, is enough to prove execution, thereof.

5. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record. It was the case of the respondent that agreement between the parties was with regard to exchange of one acre to one acre of land but instead the petitioner fraudulently got included in the mutation of exchange, her entire land, as such, proof of mutation, her appearance before the Attesting Officer or her thumb marking, The alleged agreement or the mutation in question is not enough to disentitle her of the relief claimed. The respondent very clearly asserted these facts in her plaint and denied the transaction, as asserted by the petitioner, while appearing as P.W.1. After' denial by the respondent, onus heavily shifted on the shoulder of the petitioner to prove not only the transaction of exchange, as a matter of fact, but also to show that before this transaction, the respondent had some advice to her disposal. The respondent being, undeniably, a villager lady, not exposed to public, especially to the working of revenue officials in Tehsils and Court's premises in the area, was entitled to some independent, matured advice, in this behalf. The assertion of the petitioner that since the respondent fluently signs cannot be considered as a Paradanasheen lady, has no legal substance in it. It is to the knowledge of a common man that ladies living away from big cities, are not trained and intelligent enough to deal and handle themselves, the acts of execution of agreements and attestation of mutations. Respondent No.1 is not working lady, and as such, I have no doubt in my mind that she may not be wearing the veil, is a parda observing lady, and is protected under law. Good conscience of the transaction was to be proved by the beneficiary i.e. the petitioner but there is not an iota of evidence that she was accompanied by any male member of her family, she had, some independent advice or she was made to understand the transaction, in absence or which transaction in question, can in no manner be graded as lawful, even if it is proved to the hilt, though not in the case in hand. My this view gets support from along chain of judgments consistently holding that parda observing ladies are protected and the beneficiary are required to prove good conscience of the, transaction. A few of those judgments are in the cases of Mst. Mahmooda begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and others PLD 1990 SC 661: Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402 and Baggu v. Mst. Rehman Bibi 1996 MLD 377.

6. The petitioner produced D.W.1. Qaiser Waheed, Naib Tehsildar, who attested the mutation in question. D.W.2. Muhammad Nazir, Patwari, who produced roznamcha containing the fact of exchange. D.W.3, Muhammad Rafiq, Patwari, who recorded the Roznamcha produced by D.W.2. D.W.4, Muhammad Siddique, scribed of agreement (Exh.D.1) regarding exchange and he himself appeared as D.W.6. None of these witnesses including marginal witnesses of the agreement or its scribe deposed regarding transaction, having been settled in their presence. Their statements with regard to thumb marking of these documents by respondent were of no: help to the petitioner because, as noted) above, transaction of exchange of two acres of respondent's land with one acre land of the petitioner, was to be proved but there is not a single word in the evidence with regard to such exchange, even execution of agreement of exchange is not proved because both of the marginal witnesses of this document were not produced which was a requirement of Article 79 of Qanun-e-Shahadat Order, 1984. The judgments' relied by the learned counsel for the petitioner in support of his formulation that one marginal witness and scribe of the document is enough to prove' the execution are not applicable to the case in hand because the documents in those cases were executed before promulgation of Qanun-e- Shahadat Order, '1984, and those were to be proved according to old Evidence Act. This agreement of exchange was executed after coming into force of Qanun-e-Shahadat Order, 1984, and thus, was to be proved according to provisions of its Article

79. In this behalf, I have a backing of an alighted judgment of Honourable Supreme Court of Pakistan in the case of Mst. Rasheea Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089. Similarly report of Finger Print Expert (Exh.D.1) or his statement as D. W .6 would not help the petitioner, as noticed in the earlier part of this judgment.

7. Respondent filed suit for cancellation of mutation of Exchange No.492 dated 18-10-1994 which in its nature was a suit under section 39 of the Specific Relief Act, 1877 and such-like suit can be filed, even where the plaintiff in not in possession of the land in dispute hence, I find the objection of the petition in this behalf, is of no worth. In similar situation where adverse entries in the Revenue Record, as against the plaintiff were challenged without praying possession of the land, this Court held that suit for simplicitor "Declaration" was competent. A reference can be made to the case of Fateh Ali Shah and others v. Muhammad Bakhsh and others AIR 1928 Lahore 516 and 1999 Indian Cases 165 (1936) page 625.

8. For what has been discussed above, I am of the considered view that both the Courts below have returned findings which are absolutely in consonance with the evidence and the law. No evidence on the file, is asserted or proved, to be misread or non-read by the Courts, below, in absence of which, no interference in revisional jurisdiction of this Court, is permissible, under law. No illegality or irregularity is shown to have been committed by the Courts, who have also not exercised their jurisdiction arbitrarily or fancifully. This revision petition has no merit in it, is, accordingly dismissed in limine. There will be no order as to costs. M.A.W./W-1/L Petition dismissed,