1991 PLP 1545 (MLD)

Date of hearing: 6th February, 1991. Mst. Azizan filed a suit for declaration that she was owner in possession of the suit land and that her step-father, namely, Ghulam Ahmad had got Mutation of Sale No. 1997, dated 30-7-1964 confirmed in his name through misrepresentation and that she had neither effected the sale nor received any consideration nor appeared before any Revenue Officer/Commission nor delivered possession to him.

2. Ghulam Ahmad contested the suit. According to him the suit was barred by res judicata. In the year 1964 a suit was filed by her husband, namely, Muhammadaya against (Ghulam Ahmad) and MstAzizan in respect of the suit land. In the written statement filed by Mst. Azizan she had admitted the claim of Ghulam Ahmad appellant that she had sold the suit land to him the maintainability of the declaratory suit was also questioned, for, Mst. Azizan was stated to be out of possession. On the pleadings of the parties, the following issues were framed:-- (1) Whether the plaintiff continues to be the owner of the suit land? OPD. (2) Whether the plaintiff is out of possession and the suit cannot proceed in the present form? OPD. (3) Whether the suit is barred by the principle of res judicata? OPD (4) Whether the plaint and the vakalatnama filed by the plaintiff's counsel does not bear the thumb-impression of the plaintiff, if, so, to what effect? OPD. (5) Whether the suit property is not properly described? If so, its effect? OPD. (5-A) Whether the suit is barred by limitation? OPD. (6) Relief. After recording evidence of the parties learned Senior Civil Judge, Mianwali decided issues Nos.1 to 3 and 5-A against Ghulam Ahmad appellant and decreed the suit in favour of Mst. Azizan plaintiff/respondent. Feeling aggrieved, Ghulam Ahmad preferred an appeal which was dismissed by Mr. Muhammad Amir Malik, District Judge, Mianwali (as he then was) vide judgment and decree dated 31-3-1980. Hence this second appeal.

3. It is contended that the learned District Judge did not give any finding on issue No.2 which was on the point of maintainability of the suit in the present form after determination of the question whether Mst. Azizan was out of possession. It is further contended that the judgments of the Courts below are against law and fact and have caused grave miscarriage of justice. Declaratory suit was not maintainable as Mst. Azizan was out of possession., since 1966, it is added. It is contended on behalf of Mst. Azizan respondent that Ghulam Ahmad appellant had himself got the suit titled Muhammad v. Ghulam Ahmad and Mst. Azizan instituted fictitiously to create supporting evidence for the fraud committed by him in getting the sale Mutation No.1997 dated 30-7-1964 Exh.D-1 sanctioned in his favour.

4. An important question that falls for determination is whether in the above suit Mst. Azizan respondent had filed any written statement through counsel. In this connection the evidence of Mr. Abdul Hameed Khan Niazi, counsel for Mst. Azizan (DW.1) respondent and Ghulam Ahmad appellant is verv material. According to him he did not know Mst.Azizan previously and that she did not take off her veil when she thumb-marked the written statement of the' said case. The powers of attorney in favour of Mr. Abdul Hameed Khan Niazi, counsel for Mst. Azizan and Muhammad Ramzan Khan counsel for Muhammad (plaintiff of the said case) were sent to the Finger Print Expert for comparison of the thumb-impressions of Muhammad and Mst. Azizan appearing thereon with their specimen thumb impressions and he reported that the disputed thumb- impressions on the powers of attorney were not of Mst. Azizan or Muhammad. In these circumstances it was rightly concluded that the suit allegedly riled by Muhammad in 1964 was not filed by him, nor the written statement admitting the claim of Ghulam Ahmad was thumb-marked by Mst. Azizan respondent.

5. The Courts below rightly observed that since Mst. Azizan was aged about 20 years, and was living with her mother in the house of Ghulam Ahmad appellant whom he had re-married at the time of the alleged sale she was under the influence of the appellant and as such it was for him to show that the transaction of sale was bona ride and the appellant had not taken any undue advantage of his position.

6. Admittedly, Mst. Azizan had not appeared before any Revenue Officer to confirm having made the sale in question in favour of the appellant and her statement was recorded by Ashiq Hussain Girdawar DW.5 as Commission. According to Ashiq Hussain the vendor (Mst. Azizan) was identified before him by Ghulam Muhammad Lambardar but the said Lambardar was not produced by the appellant, There was yet another circumstance which weighed with the Courts below in not considering the disputed sale of mutation proved in favour of the appellant. According to Ashiq Hussain DW.5 Mst. Azizan appellant and other attesting witnesses had affixed their thumb-impressions and signatures below their statements made before him which according to him were not now available as that portion of the paper on which they appeared was torn. Ashiq Hussain D.W.5 further stated that the woman who had made statement before him was pardanasheen and remained in Burqa throughout. Musa Khan DW.7 who was examined by the appellant to prove the sale of the land in his favour though related to both the parties was considered to be an interested witness inasmuch as his two sons and a daughter were married to the sons and daughters of the appellant. There was yet another ground for discarding his evidence as according to him Mst. Azizan was 15 years of age when her statement was recorded by Ashiq Hussain aforementioned (DW.5.).

7. The question about the possession of the suit land was decided by the learned Civil Judge on 21-2-1976. According to him the evidence showed that the property in dispute was joint and a portion of it was in possession of the husband of Mst. Azizan as tenant. The question of limitation was decided in favour of Mst. Azizan, for, the suit land was found to be a part of the common holding and some of the area under cultivation of her husband.

8. During the pendency of the appeal in this Court an application was submitted under Order 41, Rule 27, C.P.C. for production of additional evidence on behalf of the appellant. According to him Mst.Azizan respondent had executed a relinquishment deed on 25-1-1965 in his favour and her husband had also executed a document to that effect in her favour admitting the institution of the previous suit against her and that the said document being material for the proper adjudication of the matter in issue between the parties may be allowed to be produced in evidence. The purpose of leading additional evidence appears to be to prove the filing of the suit by Muhammadaya the husband of Mst. Aziran and relinquishment of his interest in favour of the appellant and Mst. Azizan respondent. The appellant had already led oral and documentary evidence to prove the institution of the declaratory suit by Muhammadaya against Mst. Azizan and Ghulam Ahmad and on proper consideration of the evidence the Courts below found that it was fictitiously and fraudulently got riled by the appellant. In this view of the matter, I do not think that there is any substantial cause for bringing on record the evidence sought to be produced at this stage and the judgment, can be pronounced on the material already available on the record. Accordingly, the application is rejected.

9. There is a concurrent finding of fact and law by the Courts below, the impugned judgments are well-reasoned and are supported by evidence. The appellant wants to question the soundness of findings pertaining to the Mutation of Sale No.1997 dated 30-7-1964 and the question about the respondent being out of possession. Since these are questions of fact they cannot be interfered in the second appeal. The appreciation of evidence by the Courts below was correctly made and no miscarriage of justice has taken place. Accordingly, the appeal being without any merit is dismissed with costs. AA./G-436/L. Appeal dismissed.