2006 PLP 1685 (MLD)

MUHAMMAD AKTHAR SHABBIR, J.

Muhammad Hanif plaintiff- petitioner had instituted a suit for possession through specific performance of an agreement with regard to the land measuring 16-Kanals situated in khewat/khattoni No.18-21/58 to 65 in mauza Ghanwal, Tehsil Shakargarh, on the basis of an agreement to sell, dated 16-11-2000 for a consideration of rupees two lacs (paid) and also prayed for consequential relief of injunction, averring in the plaint that defendant had mortgaged her suit property measuring 31-Kanals, 17-Marlas for rupees one lac and sixty thousand with the plaintiff vide mortgage agreement, dated 9-2-2000 and thereafter through an agreement to sell, dated 16-11-2000 sold 16 kanals land out of mortgaged property in his favour and the defendant received remaining price of Rs.40,

000. The suit was contested by the defendant/respondent, who, filed her written statement, denying the averments of the plaint with specific assertion that she had not made any agreement with the plaintiff and the said agreement to sell is a result of fraud and fabrication. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame various issues.

2. After recording and appreciating the evidence of the parties, pro and contra, the Court vide, its judgment and decree, dated 8-3-2003 decreed the suit. Feeling aggrieved thereby, the defendant/respondent filed an appeal which came up for hearing before Additional District Judge, Shakargarh, who, vide his impugned judgment and decree, dated 17-5-2003 accepted the same, reversing the findings of the trial Court, dismissing the suit filed by the plaintiff-petitioner.

3. Learned counsel for the petitioner argued that the plaintiff-petitioner has proved the disputed agreement to sell by producing scribe and marginal witnesses of the agreement; that the evidence of the petitioner had not been controverted by the defendant-respondent; that reasons assigned by the lower appellate Court in its judgment are not sufficient and worth-consideration to reverse the findings of the trial Court; that the respondent has failed to establish that she is a "Parda nasheen" lady. To meet with the argument of lower appellate Court that in his previous suit the petitioner had not mentioned the execution of agreement to sell in dispute, learned counsel submitted that had this fact been mentioned in that suit then the suit for declaration was not competent and the petitioner was obliged to file a suit for specific performance.

4. On the other hand, learned counsel for the respondent has vehemently opposed the arguments of learned counsel for the petitioner, contending that defendant had denied the execution of agreement to sell in dispute and onus to prove the agreement shifted on the petitioner, who is a beneficiary of the same and that the thumb-impression of the defendant had not been sent to the expert for verification.

5. I have heard the learned counsel for the parties and perused the record.

6. The question that boils down for determination in this case is, that whether the agreement to sell, dated 16-11-2003 had been executed by the defendant-respondent and she had received Rs.40,000 from the petitioner, or not. It is settled proposition of law that where there is alienation by a "Pardanasheen" lady or ignorant or illiterate woman through document or mutation, the burden of prove qua the execution of said document would be on that person who was claiming title under said document. In this context, reference can be made to the cases of Janat Bibi v. Sikandar Ali (PLD 1990 SC 642), Baggo reported as (1996 MLD 377) and Badsha Begum v. Ghulam Rasul (PLD 1991 SC 1140).

7. The execution of such type of document allegedly executed by illiterate, `Pardanasheen' lady has to be proved beyond any shadow of doubt by that person who relied upon such document and the Court had to satisfy itself that document executed by such lady and its subject-matter was within her full knowledge and comprehension and that she understood about the nature and effect of transaction with independent application of mind and that execution of such documents was independent and voluntary and in absence of such ingredients document in question would not be deemed to be genuine. Reliance in this respect can be made to case of Amazai v. Khan Sher (1996 MLD 1235).

8. In the case in hand, the onus to prove the execution of document (agreement to sell) was on the petitioner who is beneficiary of the same. From the perusal of this document agreement to sell (Exh. P1) it reveals that one of the marginal witness of this document Muzaffar Hussain is real son of the present petitioner and this fact was admitted by this witness as P.W.4, stating in his cross-examination as under: - Urdu Page 1687

9. Muhammad Hanif plaintiff/P.W.2 had also admitted that P.W.4 is his real son. P.W. 1 Muhammad Tufail scribe of the document had admitted that he had not entered the NIC number of the executant in the agreement to sell (Exh.Pl). Furthermore, the second marginal witness of the agreement Jalal Din was inimical to the defendant. He admitted that sister of the defendant got registered a theft case against him. The defendant had categorically denied the execution of agreement to sell and the thumb-impression of the executant had not been sent to the expert for its verification. The testimony of P.Ws.1, 3 and 4 is not worth-reliance as the one is real son of the petitioner and the other is inimical towards the defendant-respondent. The NIC number of the petitioner had not been entered in the agreement to sell. The petitioner had also not proved that at the time of execution of said document, the lady was within the knowledge and comprehension that she understood the nature and effect of transaction with clear independent application of mind. The above circumstances are sufficient to infer that the petitioner had failed to establish the execution of agreement to sell beyond any shadow of doubt.

10. As to the argument of the learned counsel for the petitioner that defendant is not a parda-observing lady, it has been laid down in case of Mst. Shahnaz Bibi v. Muhammad Ikhlaq Khan (1996 MLD 1060) that every Muslim woman would be presumed to be a pardanashin lady unless otherwise proved and it has further been observed in case of Taleh Bibi v. Maqsooda Bibi (1997 SCMR 459) that law regarding the disposition of property of pardanashin ladies which is equally applicable to illiterate and ignorant women is fairly well-settled that it is for the person claiming the benefit of such disposition to establish affirmatively by the strongest and most satisfactory evidence that the transaction was real, genuine and bonafide.

11. From the minute scrutiny of the record it is quite clear that there is no evidence on record to disclose that any special care or precautions had been taken by the petitioner and the scribe of the deed or marginal witnesses. The allegation of forged and fabricated document is un-rebutted on the record and the findings of the lower appellate Court in dismissing the petitioner's suit are unexceptionable and call for no interference by this Court in exercise of its revisional jurisdiction.

12. The another aspect of the case is that the petitioner had earlier filed a civil suit for declaration with injunction against the defendants-respondents on 29-6-2001 which had been withdrawn on 24-11-2001 while in this suit there is no mention about the agreement to sell, whereas the date of execution is 16-11-2000, had the agreement to sell been executed or in existence, it should have been mentioned in the earlier suit. The earlier suit was dismissed as withdrawn on 24-11-2001 and at that time the agreement to sell had allegedly been executed in favour of Muhammad Hanif plaintiff-petitioner who kept silent and concealed this fact from the Court, reasons best known to him. Whether the defendant-respondent had paid Rs.2,00,000 less Rs.1,60,000 already paid as mortgaged money, while the stand of the respondent is that she had made payment of Rs.1,60,000 to the petitioner for the redemption of her property, why, this fact was not disclosed by the petitioner in his previous suit. This only fact is sufficient to infer that impugned agreement to sell was under clouds.

13. Learned counsel for the petitioner has miserably failed to establish that the impugned judgment and decree of lower appellate Court is suffering from any infirmity or illegality and call for interference by this Court. No other point has been urged by the learned counsel for the petitioner at the time of final arguments.

14. For the foregoing reasons this revision petition being devoid of force is dismissed. M.I./M-112/L Revision dismissed.