2004 PLP 1658 (YLR)

5. Since the parties in both the suits are the same and so are the facts and propositions of law therefore, both the civil revisions are decided together through this judgment.

6. The learned counsel for the petitioner argued that the learned Courts below had misread as well as ignored the essential evidence on record and had also failed to attend to the fact that the respondents being beneficiaries of the sale transactions were obligated to prove the same in accordance with the provisions of repealed Evidence Act/Qanun‑e‑Shahadat by presenting two witnesses. And that the respondents failed to present two witnesses of the transactions therefore, the learned Courts below committed a legal error in adjudging that valid transactions had been made. And that the essential evidence of Sughran Bibi (P.W.4) and that of the petitioner herself as P.W.3 read with other evidences had been ignored by the learned Courts below, while determining the question of insanity/schizophrenia of deceased Muhammad Ameer. Further that the entry in the death certificate of Muhammad Ameer (P‑11) regarding cause of death as mental disease had also been disregarded by the learned Courts below. Contrarily, the learned counsel for the respondents supported the impugned judgments and decrees by stating that Article 17 of Qanun‑e‑Shahadat did not apply because the sale transactions incorporated either in the mutations or in the registered sale‑deed were complete transactions and did not involve any incomplete financial or future obligations. He further stated that the impugned judgments and decrees had been validly passed by the learned Courts below by recording their concurrent conclusions on questions of fact upon proper analysis of evidence wherefor this Court has no jurisdiction under section 115 of the Civil Procedure Code to interfere therein as a Revisional Court

7. I have heard the learned counsel for the parties at length and have also examined the record/evidence placed by the parties alongwith these civil revisions. There is no doubt that major thrust of the case of the parties was on the insanity and impersonation of the deceased Muhammad Ameer as executant of the transactions. It was admitted by the learned counsel for the parties that the entire controversy in these civil revisions was now restricted only to the unsoundness of mind of Muhammad Ameer and fraud, impersonation, misrepresentation and absence of consideration qua the sale transactions. It is note‑worthy that the learned trial Court incorporated the above controverted questions in Issue Nos.1, 2 and 16 in one case and Issues Nos.1 and 2 in the other case. The said issues related to the insanity and proof of validity of the sale transactions. The onus thereto of Issues Nos.1 and 2 was placed upon the petitioner‑plaintiff while onus of Issue No.16 was placed upon the respondent defendants.

8. The learned counsel for the petitioner very appreciably stated that the question of onus has become irrelevant because both the parties have led thread bare evidence on the above controverted questions. Be that as it may, to my mind Issues Nos.1 and 2 are the dominant issues in which onus to prove unsoundness of mind of Muhammad Ameer at the time of sale transactions in question and that of fraudulent transaction had been placed upon the petitioner‑plaintiff: The learned counsel read out his entire evidence to support petitioner's plaint and to allege that she had discharged the heavy burden of proof placed upon her.

9. Dealing with the question as to whether the petitioner‑plaintiff has been able to discharge onus of issues placed upon her or not, the reference to her evidence is obviously required. I am conscious of the fact that the learned Courts below have rendered concurrent findings on the above said litigated questions of fact yet examination and reference to the petitioner's evidence is necessary to determine any misreading, non‑reading or excess of authority committed by the learned Courts below. It was the admitted case of the parties that the deceased Muhammad Ameer was acquitted by the High Court in a murder case on the probability of insanity and had also remained in the Mental Hospital from 1974 to 1980 for a period of six years. Muhammad Ameer deceased was released therefrom in 1980 upon a bond of Ghulam Shabbir (his real brother). It was also admitted by the learned counsel for the parties that from 1980 to 1991 (till the date of his death) Muhammad Ameer remained in the village and was never confined to any mental asylum or hospital. Also that Muhammad Ameer was never given any treatment for insanity, unsoundness of mind or schizophrenia. Witnesses of both the parties had deposed to this effect.

10. The learned counsel for the parties stated that the period relevant for determination of insanity/unsoundness of mind or schizophrenia of the deceased Muhammad Ameer (the vendor) was the period of 1989 when the transactions in question were made. And that the period uptil 1980 or period prior to 1989 is irrelevant. for determination of this question. In view thereof, evidence of P.W.1, Tahir Majeed Record Keeper of Government Mental Hospital and that of P.W.2, Dr. Ayyaz Chaudhary. Medical Officer of Mental Hospital from 1974 to 1983 are of no help because they relate only to the period of confinement of deceased Muhammad Ameer in the Mental Hospital from 1974 to 1980. After release from the hospital he stayed in the village. P.W.3, Hayat Bibi (the petitioner‑plaintiff), P.W.4, Zohra Bibi (widow of Muhammad Ameer) and P.W.5, Ahmad Khan tenant made their depositions in endeavour to prove that even after release from the hospital, Muhammad Ameer deceased continued to be of unsound mind. The petitioner, Hayat Bibi in her deposition as P.W.3, stated that after release from the hospital deceased Muhammad Ameer was not given any treatment although he was of insane mind and used to become violent and that her uncle used to look after him, as he was unable to look after himself or his land. And that the affairs of the land were looked after by her as sole heir. And that her `Chucha' Ghulam Shabbir, D.W. committed a fraud by selling the land in question to the respondents.. She admitted in the cross‑examination that Zohra Bibi P.W.4 was her sister‑in‑law and was married in June, 1982 to her father late Muhammad Ameer when she was also simultaneously married to the brother in "Watts, Satta. She, admitted that her marriage and her father's marriage were incorporated in "Nikah Namas" (Exhs.P.13 and P.14). In her Nikah Nama i.e. Exh.P.13. Muhammad Ameer had signed as her "Waqeel " and in Exh.P.14, he had signed as bridegroom.

11. She denied the suggestion that her father was of sound mind. She however, admitted that subsequent vendees in one case were in possession of 22 Kanals about which the second mutation was made. P.W.4, Zohra Bibi in her examination in chief stated that she was married to Muhammad Ameer deceased who was insane and the marriage was not consummated wherefor she lived only for three or four days in her husband's house and thereafter came to her parent's house because her husband was insane. She admitted in the cross‑examination that she at the time of marriage knew him to be of insane mind, but entered into marriage because the marriage was arranged by her parents and in obedience to the wish of her parents. She admitted that respondent No. 1 was their opponent and the petitioner plaintiff, she and Ahmad Yar, P.W. 5, were one party. She also admitted that the petitioner‑plaintiff's husband was her real brother and the marriages took place in "Watts Satta". She further stated in the cross‑examination that income of the property of the deceased was received by the brothers of the deceased. She also admitted that deceased Muhammad Ameer had sold his old house in his lifetime but denied that he was a man of sound mind. P.W.5, Ahmad Khan, tenant over the suit land only stated that deceased Muhammad Ameer used to suffer from lunatic intervals. And that at times he was OK and at times he had to be tied down because of his insanity.

12. The above analysis of evidence of the petitioner‑plaintiff clearly and categorically reveals the following facts:‑‑ (i) That no statement whatsoever was made by the petitioner‑plaintiff or any of her witnesses that any one impersonated Muhammad Ameer before the Revenue Authorities at the time of entering or sanctioning of the mutation or before the Joint Registrar (Rights) at the time of registration of the sale‑deeds. The learned counsel seems to be taking advantage of her general and bald statement that her father never sold the land to the respondents and that fraud had been committed by her uncles who sold the said property to the respondents. This contention is not acceptable. None of the uncles of the petitioner‑plaintiff or brothers of Muhammad Ameer was impleaded as parties in the suits. Furthermore in para.3 of the plaint it was specifically pleaded by the petitioner‑plaintiff that some one else had been produced at the time of mutation before the relevant authorities but neither she nor any of the P.Ws. had made a statement regarding impersonation which like fraud had to be particularized and specifically proved through the evidence. In my opinion the evidence of impersonation is totally absent. (ii) None of the P.Ws. had made a credible or consistent statement that at the time of sale‑transactions deceased Muhammad Ameer, was incapable of understanding the ingredients of transactions of sale because of his insanity. The learned counsel for the petitioner during arguments did not press the claim of insanity but instead throughout contended that deceased Muhammad Ameer suffered from schizophrenia which was incurable. He relied upon the Oxford Textbook of Psychiatry Chapter‑9 on Schizophrenia to contend that:‑ "In acute schizophrenia the predominant clinical features are delusions hallucinations, and interference with thinking. Features of this kind are often called positive' symptoms. Some patients recover from the acute illness, whilst others progress to the chronic syndrome. By contrast, the main features of chronic schizophrenia are apathy, lack of drive, slowness, and social withdrawal. These features are often called `negative' symptoms. Once the chronic syndrome is established, few patients recover completely. " I am afraid, the selective reliance placed by the learned counsel for the petitioner on Chapter‑9 of the above Textbook is not a comprehensive picture of schizophrenia, which in the same Chapter has been symptomatized having `positive' symptoms as well as `negative' symptoms Positive symptoms are treatable and most patients recover from acute illness. It is about the negative symptoms and chronic syndromes which are stated to be the diseases from which, few patients recover completely. There is no evidence about the nature of schizophrenia or syndrome of the purported illness of deceased Muhammad Ameer. Be that as it may, schizophrenia has been defined as leading to apathy lack of drive, slowness, delusions, hallucinations and interference with thinking. As such schizophrenia cannot be equated with insanity and unsoundness of mind leading to incapacitated thinking and total incapability of the mind of the patient. P.W.5 clearly and categorically admitted that Muhammad Ameer used to go into lunatic intervals only on some occasions. Furthermore, P.W.4, Zohra Bibi (to whose evidence a lot. of weight was sought to be placed by the learned counsel for the petitioner) only stated that she lived in the house of Muhammad Ameer for three or four days and thereafter she went away to her parent's house. This is an admission that four days after her "Nikah" in June, 1982 Zohra Bibi never lived with Muhammad Ameer to have knowledge of the purported illness at the time of transactions in 1989. Even the petitioner as P.W.3, did not depose that she was living with her father even after her marriage in 1982. She neither particularized nor specified the state of illness of Muhammad Ameer or his incapacity to apply his mind in 1989 at the time of sale transactions. (iii) Furthermore the onus of proving the transactions to be fraudulent was also mainly upon the petitioner‑plaintiff. Her deposition was that her father did not sell the land but it was her uncles who committed the fraud and sold the land to the respondents. Apart from her sole statement, the petitioner failed to present any other witness on the fraudulent nature of the sale‑transactions and also failed to sue her uncles as the persons committed the fraud. None of the prime witnesses appearing as P.W.4 and P.W.5 made any statement in their examination in chief regarding .the sale transactions. Contrarily P. W.5 controverted the case of the petitioner‑plaintiff and stated that the brothers of the deceased used to look after the suit‑land while the petitioner of P.W.3 stated that she had always looked after the affairs of the said land.

13. In view of the above observations, I am of the opinion that the concurrent findings of fact rendered by the learned Courts below do not suffer from any misreading or non‑reading of evidence. The learned Courts below have recorded their findings on the basis of due and proper appreciation and evaluation of evidence. They have also come to the concurrent findings of fact that the sale was made by Muhammad Ameer with full application of sense and mind upon receipt of the agreed sale price. Under these circumstances, these civil revisions are dismissed with no order as to costs. M.I./H‑6/L Revisions dismissed.