2016 PLP 1027 (MLD)

ABDUL LATIF KHAN, J.

This revision petition has been preferred against the judgment and decree dated 21.04.2012, passed by learned District Judge, Charsadda whereby the appeal filed by plaintiff/respondent was allowed and the judgment and decree dated 1.12.2011 passed by trial Court was set aside by reversing the same in favour of plaintiff/respondent. Arguments heard and record perused.

2. A perusal of record reveals that respondent/plaintiff filed a suit for declaration that she is owner of house in dispute on the basis of a sale deed dated 3.11.2000, purchased for sale consideration of Rs.70,000/- and defendant has got no concern with it. It is averred that on 3-5-2010, defendant brought a blank stamp paper and assured her that a compromise with her sons is to be executed and obtained her thumb impression over it. It is pertinent to mention that the defendant remained attorney on behalf of plaintiff in litigation with her two sons. The averment of plaint was fortified by PW.1. Her ownership claim has not been denied by other side rather has been admitted and alleged to have sold the same in his favour by dint of disputed deed scribed on 3.5.2010. The plaintiff was subjected to lengthy cross examination however she was not confronted with the situation that at the time of putting her thumb impression on the document, her sons and other relatives were present on the spot or not. The payment of sale consideration has not been proved by defendant/petitioner. Even a question was not put to her regarding receipt of payment which is the main ingredient of sale and in case of absence of same, no sale can be proved. Though the marginal witnesses of the deed were produced however the scribe, petition writer Nisar Muhammad while deposing as PW.4 has categorically stated that the plaintiff had not appeared before him and the deed was scribed at the instance of petitioner Muhammad Jan. No money exchange hands in his presence. He deposed that the register was handed over to the son in law of the plaintiff which was brought back alongwith defendant to him. DW.2 has stated that sale consideration was paid in his presence and thumb impression of the plaintiff was obtained by son in law and grandson of the plaintiff. The witness happens to be the cousin of Muhammad Jan. He deposed in cross examination that Petition Writer was taken in a vehicle to the house of plaintiff situated at a distance of 2 kilometers. The most important aspect of the case is that he has got no relation with the plaintiff who happens to be an illiterate rusticate villager Parda Nasheen lady. He has admitted that Muhammad Jan happens to be the attorney of plaintiff in earlier litigation. He showed his ignorance about the contents of the deed though it was read over to him. He deposed that no negotiation took place regarding sale in his presence.

3. The scanning of evidence available on file would lead to conclusion that sale consideration has not been proved to have been paid to the plaintiff. The defendant being beneficiary of document has failed to prove through cogent and confidence inspiring evidence that she thumb impressed the deed considering it as a sale deed and instead her plea that thumb impression was obtained on a blank paper as the defendant remained attorney on her behalf in respect of litigation with her sons. Her stance to this effect stands proved through evidence. Even otherwise the marginal witnesses and scribe of the deed were not related to him and free consent of the plaintiff has not been established with respect to the transaction through available record. The learned Court of appeal has decided the lis pending before it with conscious and application of independent mind which is not open to any exception. For the aforesaid reasons, this petition being devoid of merit is dismissed. MM/193/P Petition dismissed.