2021 PLP 1098 (CLC)

MUHAMMAD AMEER BHATTI, J.

Declaratory suit in hand filed by the respondents was dismissed by the learned trial Court; the appeal whereof was allowed and the suit stood decreed by the learned first appellate Court vide impugned judgment dated 30.11.2011; hence this revision petition.

2. The facts of the case, put in brief, are that the predecessor-in-interest of the respondents filed a suit for seeking declaration to the effect that her owned land, detail whereof has been given in the plaint, was got transferred by the respondents by means of fraud and misrepresentation. The respondents repelled the plea through their written statement on the premise that the impugned piece of land owned by the plaintiffs along with share of her four real sisters was purchased through their brother for a consideration of Rs.16,00,000/-. From the divergent pleadings of the parties, issues were condensed and the parties were called upon to adduce their evidence, in consequence whereof, the learned trial court dismissed the suit. However, the appeal filed by the plaintiffs/respondents was accepted and suit was decreed by holding that the requisite evidence to prove the factum of a valid mutation was not produced. Resultantly, the impugned mutation to the extent of share of the plaintiffs was set-aside.

3. The learned counsel for the petitioners has reiterated that the evidence produced by the petitioners to prove that the mutation was sanctioned in the presence of parties on their advice by the Revenue Officer has not been considered in its true perspective, therefore, the judgment impugned is not sustainable and a nullity in the eye of law.

4. On the other hand, learned counsel for the respondents vehemently supported the impugned judgment passed by the learned first appellate Court.

5. I have heard learned counsel for the parties and gone through the record of the case.

6. It is manifestly clear from the record that the learned first appellate Court was constrained to decree the suit on account of withholding the plausible evidence of the Revenue/Officials, who were instrument to sanction the mutation, as mandatory requirement to prove the factum of mutation.

7. It is settled law that the beneficiary of a transaction in general and the one involving a female in particular, has to substantiate validity of a transaction, if so objected to. It is noteworthy that in case of illiterate pardah observing lady; adequate evidence is also essentially liable to be brought on record to prove that she had an independent advice of her relatives such as husband or son having no conflict of interest with her and transaction was duly explained to her.

8. There are no two opinions that the predecessor-in-interest of the respondents/plaintiffs was an illiterate pardah observing lady who filed declaratory suit alleging therein that she did not appear before the Revenue Officer rather she had even no knowledge of the transaction in question nor she received any consideration amount in this regard. In the presence of this stance of the female owner of land, the first and foremost responsibility of the defendants/petitioners/beneficiaries of the transaction was to produce overwhelming evidence to prove that the execution of mutation was carried into effect in the presence of the lady who had the independent advice of her relatives such as husband or son with no adverse interest on their part. I have gone through the record of the case and did not find even iota of evidence regarding any independent advice forthcoming from her husband or son at the time when the impugned mutation was sanctioned. When confronted to this anomaly, learned counsel for the petitioners has candidly admitted such deficiency of evidence and came out with a version that although husband and sons were not present, yet female owner's real brother was present at the time of the sanction of sale mutation who had identified and witnessed the receiving of consideration amount along with other sisters. It goes without saying that brother was a party of the given transaction; hence, I am afraid that it could not be safely presumed that he had no conflict of interest, therefore, it is obvious that illiterate pardah observing lady had no independent active advice of any of her relative i.e. husband or son, necessary in peculiar circumstances of this case, as was required by Hon'ble Supreme Court of Pakistan as well as this Court in numerous judgments reported as Mst. Hafiza Bibi v. Ali Hussain and others (1994 SCMR 1194), Khan Muhammad v. Muhammad Din through LRs (2010 SCMR 1351), Muhammad Saee v. Mst. Sharaf Elahi and another (2010 SCMR 1358), Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225), Muhammad Afzal v. Muhammad Zaman and others (PLD 2012 Lahore 125), Mubashir Hussain through Special Power of Attorney v. Syed Hussain Abbas and 3 others 2019 CLC 1417 [Lahore], Syed Tabassam Hussain Shah v. Sakina Bibi through Special Attorney and 2 others 2020 YLR Note 32 [Lahore], Zahid Islam v. Mst. Rehmat Bibi and others (2020 CLC 54), Osman Yasin v. Defence Housing Authority through Administrator and 7 others 2018 YLR 3 [Sindh], Lashkar v. Fazal (2012-14 GBLR 187), Mst. Surraya Bibi v. Imtiaz Ahmad and 3 others 2018 CLC 1640 [Lahore], Mst. Azmat-e-Bibi v. Noor Muhammad and 3 others 2012 YLR 1765 [Lahore), Karam Bakhsh and another v. Mst. Saira Bibi 2000 MLD 318 [Lahore], Mst. Anwar Kalsoom and 2 others v. Ghulam Raza and another (2018 YLR 1028), Jameel Ahmad Zahid v. Rasheeda Begum and others 2019 MLD 485 (Lahore), Muhammad Din, through Legal representatives v. Mst. Fatima Bibi and another 2008 YLR 881 [Lahore], Mst. Waris Jan and another v. Liaqat Ali and others (PLD 2019 Lahore 333), Abdul Qadeer v. Ashiq Ali and 2 others 2006 YLR 2900 [Lahore], Mst. Manna v. Muhammad Akhtar and 3 others 2000 YLR 2417 [Karachi] and Arif Zaman v. Pir Dost Ali Shah through Legal Heirs and others 2005 MLD 98 [Lahore]. Therefore, I am of the considered view that the absence of her relatives for independent advice in the alike cases, such as husband and son, is fatal and enough to fizzle out the validity of the transaction, in that, a tangible evidence of irrefutable character is required to prove that all the codal formalities have been duly fulfilled, particularly when validity of the transaction for the transfer of the property/land of an illiterate pardahnasheen lady is challenged. It is abundantly evident from the record that the petitioners who were under legal obligation to prove the factum of transaction miserably failed to bring on record any persuasive evidence of the cogent nature, as is contemplated in afore-mentioned numerous esteemed judgments of Hon'ble Supreme Court of Pakistan. The absence of pre-requisite concomitant evidence on this aspect of the case on record has sufficiently persuaded this Court to hold that the suit of the respondents was rightly decreed by the learned first appellate Court. The petitioners have failed to point out any illegality or infirmity in the impugned judgment of the learned first appellate Court. Thus this petition having no merits is hereby dismissed. No order as to costs. SA/I-8/L Petition dismissed.