2010 PLP 3101 (YLR)

IJAZ-UL-AHSAN, J.

The appellant filed a suit against the respondent alleging that the respondent was owner of land measuring 17 Kanals, 13 Marlas situated in Mauza Sharam Kot Tehsil Pasrur District Sialkot. The land in question had devolved upon the respondent as legal heir of her mother Mst. Kaneez Fatima, deceased. It was alleged in the plaint that the respondent had executed a written agreement to sell with the appellant on 17-7-2009. Through the said agreement, she allegedly agreed to sell the aforesaid property to the appellant in consideration of Rs.32,00,

000. It was averred in the plaint that the respondent had received a sum of Rs.30,00,000 in cash in the presence of marginal witnesses of the agreement and had agreed to execute a sale-deed on receipt of the balance amount of Rs.200,000 before 10-11-2009. It was also stated that the appellant had been put in possession of the suit property. It was further maintained that pursuant to the agreement to sell, the respondent had also received an additional sum of Rs.100,000 through a cheque. The appellant thereafter went to Pasrur Court premises for execution and registration of the sale deed and waited for the respondent. She did not turn up and subsequently, on being approached, refused to execute the sale-deed.

2. The respondent contested the suit and raised legal as well as factual objections. She specifically denied execution of the alleged agreement to sell or receipt of sale consideration as alleged. It was contended that she was an illiterate, old and Parda-observing lady. The land in question is situated at Pasroor while she resides at Rahim Yar Khan, with her husband. She alleged that the appellant was her tenant, he was in possession as tenant and she had received a sum of Rs.100,000 by way of lease money. Since the said amount was paid through cheque, the same was fraudulently being shown as part payment of the sale consideration in order to deprive her of her property, fraudulently and illegally.

3. After hearing the learned counsel for the parties and going through the record, the learned trial Court rejected the application filed by the appellant for temporary injunction.

4. The learned counsel for the appellant submits that the findings of the learned trial Court that the appellant had not made any payment through the bank is falsified by the photocopy of the cheque received by the respondent in her bank. He further submits that appellant's prayer for comparison of signature/thumb-impression of the respondent was not decided by the learned trial Court, which has denied him the right to prove the genuineness of the document. He argues that the appellant is a co-sharer in the Khata and any alienation by the respondent in favour of the stranger would lead to unending litigation between the parties.

5. The learned counsel for the respondent has contested the assertions made by the learned counsel for the appellant. He submits .that the agreement to sell is yet to be proved. Further, there is no evidence on record that how and by what mode a huge sum of Rs.30,00,000 was paid to the respondent. He points out that admittedly the property is situated in Pasroor while the respondent permanently resides at Rahim Yar Khan. He has drawn my attention to the stamp paper on which the alleged agreement to sell was written. He points out that the same was purchased from Lahore, for which no plausible explanation is forthcoming and raises serious doubts about the genuineness of the agreement. He further submits that payment of Rs.100,000 through cheque is being cleverly misinterpreted to create an impression that the said amount was paid toward part payment of the sale consideration, which is patently incorrect. He submits that the suit is patently fraudulent and an attempt to deprive a simple illiterate lady of the property that had been inherited by her.

6. I have heard the learned counsel for the parties and examined the entire record. In the first place, in filing the present appeal, the mandatory provisions of Order XLIII Rule 3, C.P.C. have not been complied with. Nothing has been produced on record to indicate that a notice of filing of this appeal was sent to the respondent. The learned counsel for the respondent has drawn my attention to copy of the notice that was allegedly sent to the respondent. Strangely enough, it is addressed to the appellant. The agreement to sell on the basis of which the suit in question has been filed, is yet to be proved. There is no explanation available on record regarding purchase of the stamp paper at Lahore while the parties reside at Pasroor/Rahim Yar Khan. It is also open to question as to how a sum of Rs.30,00,000 was paid by the appellant to the respondent in cash without obtaining a any receipt or other document indicating such payment. The assertion that the payment of Rs100,000 was made through cheque in the account of the respondent and the said fact should form basis of establishing that she has received a sum of Rs.30,00,000 neither sounds logical nor appeals to reason. It is hard to understand why the payment of Rs.100,000 was made through a cheque while a much higher amount i.e. Rs.30,00,000 was paid to an old and illiterate lady without even obtaining a receipt. On the contrary the explanation that the aforesaid amount of Rs.100,000 constituted the lease payment, appears to be more logical and reasonable. The arguments advanced by the learned counsel for the appellant that the application of the appellant for comparison of the thumb-impression of the respondent was not decided and therefore, his case has been prejudiced, does not carry much weight. It is obvious that the suit is in its initial stages and the question of genuineness of the signatures/thumb -impression would be decided by the learned trial Court after recording evidence at the appropriate stage.

7. On perusal of the record, I find that the appellant neither managed to establish a prima faice case nor was he able to convince me that he would suffer irreparable loss in case the injunction was not granted in his favour. Even otherwise, the appellant is adequately protected by the principle of lis pendens in case the property is alienated during pendency of the litigation. It is settled law that in order to be entitled for interim relief, the claimant must establish all three ingredients for grant of interim relief in his favour. To my mind the appellant has not been able to establish any one of the three ingredients for grant of interim relief.

8. There is another aspect of the matter. The respondent is an illiterate and Parda-observing lady. It is settled law that in case where the executant of a document is pardanasheen or illiterate woman, notwithstanding the fact that she is known to the vendee or is a stranger to him, if she denies the execution of document, the party placing reliance on such document must prove its execution and the burden of proving the negative fact is shifted to such a woman, executant, if the initial burden of proving the genuineness of document is discharged. The identification of an illiterate or paradanasheen woman, vendor, must be established beyond doubt and Court must be vigilant in taking extra care to ascertain the genuineness of a registered document which is alleged to have been executed by an illiterate or Parda-observing lady. Reference in this regard may be made to Abdul Hameed through L.Rs. and others v. Shamsuddin and others (PLD 2008 SC 140), Khawas Khan v. Sabir Hussain Shah (2004 SCMR 1259), Ghulam Muhammad v. Farooq Ahmed and others (2002 SCMR 1801) and Arshad Khan v. Mst. Reshman Jhan and others (2005 SCMR 1589).

9. It has further been held that a document purporting to create a right in property must be proved to have been executed by a person, who allegedly executed such document. If the executant was an illiterate person and without being aware of contents of the documents, put his/her thumb impression on it at the instance of a third party, even an admission of such thumb impression would not ipso facto raise a presumption of its being a genuine document. Reliance in this regard may be placed on Abdul Hameed v. Mst. Aisha Bibi and another (2007 SCMR 1808).

10. Admittedly, the respondent is an old, illiterate and Parda observing lady. She has specifically denied having executed the agreement to sell or having received any sum by way of sale consideration from the appellant. The receipt of a sum of Rs.100,000 has adequately been explained as lease money from the appellant, who is admittedly in possession as a tenant. This is evident from copies of the revenue record, which have been examined by me. In view of these facts and circumstances, I find that the learned trial Court has rightly concluded that the case for grant of interim relief was not made out.

11. There is no misreading or non-reading of evidence. The learned counsel for the appellant has not been able to show any illegality or material irregularity in the order passed by the learned subordinate Court. It is noted that the learned subordinate Court has correctly appreciated and appraised the relevant facts and circumstances of the case and applied the correct principles of law to the same.

12. For the aforesaid reasons, this appeal is found to be without substance and it is accordingly dismissed. It is, however, clarified that all observations made in this order are of a tentative nature only. These shall not prejudice the final decision of the suit, which will be decided by the learned trial Court on merits in accordance with law and on the basis of the evidence before it. H.B.T./M-424/L Appeal dismissed.