2021 PLP 19 (SCMR)

IJAZ UL AHSAN, J.

Leave to appeal is sought against a judgment of the Lahore High Court, Lahore, dated 09.10.2019. Through the impugned judgment, a Regular Second Appeal bearing No.53646 of 2019 filed by the petitioner was dismissed.

2. Briefly stated the facts necessary for disposal of this lis are that Respondent No.1 was a legal heir of Mst. Mehtab Bibi and was entitled to a share in her estate. However, through inheritance mutation No.1687 dated 27.12.2003 the petitioner manoeuvred to add the name of Mst. Saira Bibi, who allegedly sold the share of the Respondent Zohran Bibi through an oral sale mutation No.1695 dated 19.01.2004. The Respondent alleged that another woman had appeared in her place before the Revenue Officer and both entries in the revenue records/mutations were patently illegal and fraudulent. The Respondent also claimed that she was an illiterate and parda nasheen lady and had been deprived of her lawful share in the estate of her mother through fraudulent means. She filed a suit seeking declaration to the effect that the mutations had fraudulently been made and that she was entitled to her share in the estate of her deceased mother. The suit was decreed vide judgment and decree dated 25.04.2018. An appeal filed by the petitioner was dismissed vide judgment and decree dated 08.07.2019. A regular second appeal filed by the petitioner also met the same fate vide impugned judgment dated 09.10.2019. Hence, this petition.

3. The learned ASC for the petitioner submits that the judgments of the lower fora suffer from patent illegalities insofar as the judgment of this Court reported as Pakistan Refinery Ltd. v. Barrett Hodgson Pakistan (Pvt.) Ltd. (2019 SCMR 1726) has not been followed. He further maintains that another judgment of this Court reported as Sikandar Hayat Sughran Bibi (2020 SCMR 214) has also been ignored insofar as the Revenue functionaries have not been impleaded as Respondents.

4. We have heard the learned counsel for the petitioner and gone through the record. It is clear and obvious to us that the Respondent is a parda nasheen lady. She alleges fraud and being deprived of her lawful right in the estate of her predecessor in interest Mst. Mehtab Bibi. It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. None of the said parameters had been met in the case in hand. Further, it was established through documentary evidence that the Respondent who was admittedly a legal heir of Mst. Mehtab Bibi was named Zohra Bibi and the name of Mst. Saira Bibi had fraudulently been entered in the inheritance mutation for fraudulent and ulterior motives. Thereafter, the same person who was either fictitious or an impersonator was used by the petitioner for the purposes of executing a sale mutation in his own favour which was found by all the three lower fora to be fraudulent, questionable and patently illegal. We have carefully gone through the judgments cited by the learned counsel for the petitioner and find that the same are distinguishable on law as well as the facts.

5. As far as Sikandar Hayat's case ibid is concerned, the same has been rendered in the specific facts and circumstances of that particular case. It does not lay down the entire law on the subject and does not have general and universal application in terms of its ratio. Even otherwise, it is also distinguishable on questions of law as well as facts of the case in hand. It has been held by this Court in various pronouncements that impleading the Revenue Officials in every case is not a rule of the thumb. It depends upon the peculiar facts and circumstances of each case and in the event the concerned Court comes to the conclusion that Revenue functionaries need to be impleaded to enable it to arrive at a just conclusion, appropriate orders can be passed giving the concerned party an opportunity to implead them. They can also be summoned by either side or if considered necessary even as Court witnesses.

6. In the case in hand, irrefutable documentary evidence was placed on record in order to establish fraud and in the facts and circumstances of this case imleading of the Revenue officials was neither necessary nor essential for determination of the questions before the Court. In our opinion sufficient documentary as well as oral evidence was available to establish fraud and dislodge the mutations which had clearly been manoeuvred on the basis of fraud, impersonation and misrepresentation. Further, it requires no reiteration that where a transaction is challenged by an illiterate and parda nasheen lady, the onus to prove that the same was voluntarily done, with free consent, in awareness of implications and consequences and availability of objective and independent advice of a lawyer or a close male relative is squarely upon the beneficiary. The petitioner in the present case miserably failed to discharge such onus. The judgment of Pakistan Refinery Limited ibid has no application to the facts and points of law involved in the case in hand, is totally irrelevant and does not in any manner advance or help the case of the petitioner.

7. No other point has been urged by the learned counsel for the petitioner to persuade us to interfere with the concurrent findings of fact recorded by all the lower fora. Even otherwise, the impugned judgment does not suffer from any legal, procedural or jurisdictional defect, error or flaw nor has any misreading or non reading of evidence or other material on record has been shown or even pleaded. 7(sic.) For reasons recoded above, we do not find any merit in this petition. It is accordingly dismissed and leave to appeal is refused. MWA/G-17/SC Petition dismissed.