2017 PLP 1331 (MLD)

ALI AKBAR QURESHI, J.

This civil revision is preferred against orders dated 15.12.2015 and 10.06.2015 by which both the learned courts below rejected the plaint of the suit, filed by the petitioner, under Order VII, Rule 11, C.P.C.

2. On 25.10.2012, the petitioner, Zahida Bibi, who is an illiterate lady, filed a suit for declaration with permanent injunction contending therein, that she inherited an agricultural piece of land measuring 12 Kanal 13 Marla; the husband of the petitioner, on the pretext to obtain a loan to fulfill his need, persuaded the petitioner to mortgage the suit land; the petitioner having no option being the wife of the respondent went to the revenue office; the respondent obtained the thumb marks of the petitioner fraudulently and subsequently transferred the land in his own name by playing fraud and misrepresentation; the oral sale mutation No.22 sanctioned on 22.12.1999 is product of fraud and misrepresentation, therefore, the same be cancelled and the suit property along with the possession be handed over to the petitioner; the fraud committed by the respondent came into the knowledge of the petitioner when the petitioner was living in the house of her brother namely, Safdar Ali, whereupon the petitioner filed the suit for declaration; the respondent came to the house of her brother and took the petitioner along with him with the promise, that the sale mutation will be cancelled and he will transfer the land in the name of the petitioner; on the assurance of the respondent, the petitioner withdrew the earlier suit filed against the respondent on 21.12.2009, and thereafter on 03.09.2012, the respondent divorced the petitioner. Lastly prayed, that the petitioner is an illiterate and old lady and because of the sacred relation of husband and wife always depended on the respondent who played a havoc fraud with her, therefore, the suit be decreed.

3. The suit was contested by the respondent through written statement wherein the respondent stated, that earlier a suit for specific performance was filed by the brother of the petitioner namely Safdar Ali; the petitioner while filing the written statement admitted, that she has transferred the suit land in favour of the respondent and secondly, the earlier suit filed against the respondent was withdrawn by the petitioner, therefore, the petitioner is precluded to file the instant suit. On merits, the replies of the material paras of the plaint are evasive which shall be discussed later on.

4. The respondent also filed an application under Order VII, Rule 11, C.P.C., which was replied by the petitioner. The learned trial court firstly framed the issues out of the contentious pleadings of the parties on 22.06.2013 and subsequently framed following two additional issues on 19.03.2014 on application under Order VII, Rule 11, C.P.C.:-- "

1. Whether the present suit is barred to the principle of res judicata because the previous suit was dismissed as withdrawn? OPA

2. Whether the present court lacks jurisdiction to adjudicate present lis? OPA"

5. After recording evidence of the parties, the learned trial court accepted the application and rejected the plaint, against which an appeal was filed which too was dismissed, hence this civil revision.

6. The following controversies have arisen out of the instant case, which require adjudication:-- i) Whether the respondent has proved the oral sale in question through independent evidence irrespective of the execution of the oral sale mutation; ii) Whether the respondent discharged his onus through any independent evidence when the petitioner pleaded that she is illiterate, simple, house wife and old lady; iii) Whether at the time of entering and sanctioning the oral sale mutation, any male member of the family of the petitioner accompanied her, who was the identifier and who was the attesting witness of the mutation; iv) What is the effect of the evasive denial made by the respondent in the written statement filed by him before the learned trial court; v) Whether the learned courts below were not under legal obligation to peruse and examine the record, particularly the sale mutation alleged to have been executed by the petitioner and its validity.

7. As regard the first point, admittedly the respondent has claimed that the suit land was transferred in his name by the petitioner through oral sale and on the basis of the oral sale, the oral mutation was entered. It is settled proposition of law, that the oral sale is to be proved independently irrespective of the sale mutation entered in the revenue record by giving the time, date and place and the names of the witnesses, in whose presence the oral sale was made. After careful perusal of the record it is found, that the respondent has failed to prove the transaction of oral sale in any manner whatsoever and even the time, date and place and the names of the witnesses have not been mentioned by the respondent while filing the written statement. It was otherwise necessary and the onus was upon the respondent to prove the oral sale, particularly in the circumstances when the petitioner specifically claimed and mentioned in the plaint, that she is illiterate and aged lady. Reliance is placed on Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L. Rs. and others (2013 SCMR 1300) and Rana Sarbland Khan v. B. K. Enterprises through Director (PLD 2015 Lahore 681).

8. This is the most important aspect of the case and the law has given full protection to the illiterate lady. The respondent while filing the written statement has not denied this fact, therefore, the respondent was legally bound to prove, that the male family member of the petitioner was present at the time of executing the alleged oral sale mutation and the petitioner was identified by a responsible person of the village. The record is completely silent on this point and further the respondent while filing the written statement and appearing in the witness box has miserably failed to prove this important aspect of the case. The oral sale mutation, when perused with the assistance of learned counsel for the parties, it is found, that no male member of the petitioner's family was present, the name of the identifier is not mentioned, the identity card number of the petitioner is not mentioned in the mutation and even the names of the attesting witnesses are not visible, therefore, it can conveniently be held, that the alleged oral sale mutation is a sham transaction and is product of fraud and misrepresentation.

9. The petitioner, as evident from the contents of the plaint, clearly narrated the ingredients of fraud and also claimed, that she is illiterate lady. The para wise reply of the plaint, filed by the respondent is evasive, which amounts to admission on the part of the respondent. For facilitation, the relevant paragraphs of the plaint and their reply by the respondent in the written statement are reproduced as under:--

10. The aforesaid replies made by the respondent while filing the written statement are sufficient to understand, that the respondent had no answer and played a havoc fraud with the petitioner lady and after getting the suit land which was the only asset of the petitioner, divorced her.

11. The learned trial court, being the court of first instance, should have taken into consideration all these aspects of the case while accepting the application under Order VII, Rule 11, C.P.C. on technicalities. The learned first Court of appeal in a very casual manner dismissed the appeal filed by the petitioner without examining the record. Both the learned courts below have ignored while rejecting the plaint, that the transaction is oral and the respondent cleverly managed to get the land transferred from the petitioner, who was his wife. Even otherwise, both the learned courts below should have independently scrutinized the oral sale mutation irrespective of the other facts, while accepting the application under Order VII, Rule 11, C.P.C. It would be pertinent to mention here, that the learned trial court conducted a detailed inquiry by framing the issues and recording the evidence of the parties while accepting the application under Order VII, Rule 11, C.P.C. but has failed to take cognizance of the validity of the oral sale mutation.

12. There is another sad aspect of the case that firstly the real brother of the petitioner namely Safdar Ali filed a suit for specific performance and at that time the marriage of the parties to this case was intact and the respondent managed to file written statement on behalf of the petitioner wherein the petitioner stated that she has transferred the suit land in the name of respondent. It appears from whole of the record, that the petitioner who is admittedly an illiterate lady, was totally unaware about the contents of the written statement submitted in the case of specific performance filed by the real brother of the petitioner. On another occasion, when the petitioner was living in the house of her brother, the respondent, being the husband of the petitioner, came to her, took her with him giving an undertaking, that the oral sale mutation in question will be cancelled and the suit land will be restored in the name of the petitioner, the petitioner accompanied the respondent being her husband. After some days, the respondent cleverly managed and succeeded to withdraw the suit filed by the petitioner challenging the sale mutation in question and thereafter the respondent divorced the petitioner.

13. As regard the illiterate lady, I am fortified by the judgment of Hon'ble Supreme Court of Pakistan cited as Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi (2013 SCMR 868), wherein it has been observed as under:-- "6. ....The contention that the general power of attorney was given by the respondent/ plaintiff not to a stranger but to her own son-in-law and that she was not a "Pardanasheen Lady" for which the courts of law have provided protection is not tenable in the facts and circumstances of the instant case, first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerable. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation."

14. It has been seen in many cases, that the women who are weaker segment of the society, are being deprived from their right of inheritance secured and guaranteed by Allah Almighty from their brothers, but in this case firstly the real brother of the petitioner tried to deprive the petitioner from the suit land by filing a suit for specific performance on the basis of an agreement but unfortunately the respondent who was husband of the petitioner succeeded to deprive the petitioner from her legal right on the basis of an illegal and unlawful document i.e. oral sale mutation. Reliance is placed on Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).

15. Needless to mention, that it is well established legal proposition, that the sale of every kind is to be completed on the payment of the consideration to the vendor. In this case, the respondent claimed, that the suit property was transferred in his name in pursuance of an oral sale. In these circumstances, heavy duty lies upon the respondent to prove the payment of consideration through convincing and independent evidence. Since allegedly it is an oral sale and the respondent was bound to prove the payment of consideration through evidence but the respondent, through oral evidence, miserably failed to prove the payment of consideration to the petitioner and even during the cross-examination upon the petitioner, not a single question was put in this regard. Thus, the alleged oral sale claimed by the respondent is otherwise unproved and no sale in the eye of law.

16. Although normally this Court does not interfere with the concurrent findings on facts and law but the Hon'ble Supreme Court of Pakistan has observed in the judgments cited as Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568) and Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCMR 914), where the learned courts below have committed illegality, irregularity, legal infirmity and jurisdictional defect while rendering the findings, this Court can interfere while exercising the revisional jurisdiction conferred by section 115, C.P.C.

17. Resultantly, this revision petition is allowed, the orders dated 15.12.2015 and 10.06.2015 are set aside and the suit filed by the petitioner is decreed with cost of Rs.25,000/- (Rupees fifty thousand only) which shall be paid to the petitioner. ZC/Z-20/L Revision allowed.