P L D 2009 Lahore 41 (PLP)

SYED HAMID ALI SHAH, J.

Through this common judgment, Civil Revision No.716-D-1991 and Civil Revision No.715 1991, being on identical subject matter, are decided together.

2. Respondent Mst. Khurshid Bibi, through instituting suit against the petitioners, sought declaration to the effect that she is owner in possession of the suit land and that Mutation No.91, sanctioned on 16-12-1974, is the result of fraud and collusion. The suit was contested by the defendants, who controverted the assertions of the plaint and raised various preliminary objections. Learned trial Court, framed 8 issues, out of the divergent pleadings of the parties, recorded evidence and on conclusion of the trial, dismissed the suit vide judgment and decree dated 05-05-1991. On appeal, the judgment and decree of learned trial Court was reversed and through appellate decree dated 10-12-1991, the suit was decreed, in favour of the plaintiff (respondent herein). Hence this revision petition against the judgments at variance.

3. The connected Civil Revision No.715-1991 has the similar facts and law point. Mst. Barkat Bibi instituted the suit, sought declaration and assailed Mutation No.90 sanctioned on 16-12-1974 before the civil Court and her suit was dismissed vide judgment and decree dated 5-5-1991.On appeal, the judgment was reversed and the suit was decreed vide appellate decree dated 10-12-1991.

4. The case of the respondent is that she, being an absentee and parda nashin lady, kept receiving share of produce of her land from her tenant (petitioner No.2). She has defied that she sold her land vide mutation No.91, dated 16-12-1974 and claimed that the petitioners, in connivance with marginal witnesses, manoeuvred a fake sale through impersonation. The respondent has denied that she ever sold her property to the petitioners, through impugned mutation, against the consideration of Rs. 40,000.

5. The petitioners, on the other hand, have emphasized that they purchased land in dispute against the consideration of Rs.40,000 and at the time of mutation, she was identified by Sher Muhammad and Safdar Ali, while Jehangir, the real brother of vendor, was present at the time of mutation. The possession was delivered to the vendees, after completion of the sale.

6. Learned counsel for the petitioners has contended that the lower appellate Court has not comprehended the question of limitation. The plaintiff had asserted in the plaint that she came to know about the impugned mutation, two years prior to the filing of the suit and the suit was filed on 29-9-1987. It was vehemently contended that no specific date was mentioned as to the knowledge of sale and thus, there remains no justification for assuming the date of knowledge. Each day's delay has to be explained and such exercise is possible only, when a specific date is mentioned in the pleading. In the absence of any specific date, period of limitation cannot be computed. Learned counsel has placed reliance on the case of "Noor Muhammad v. Sarwar Khan" (PLD 1985 SC 124). Learned counsel has further submitted that the respondent, her sister and her mother, sold their land through Registered Deed No.798 dated 18-6-1978 (Exh.D-2), wherein it has been incorporated that the vendors have sold their entire land in the village. Learned counsel has added that the vendors have admitted the earlier sale, in favour of the petitioners. Similarly, another sale-deed was registered on the same day, with regard to the land in dispute. It was urged that it is beyond comprehension that another sale registered, on the same day, was not in the knowledge of the respondent. Learned counsel went through Para 14 of the judgment of learned trial Court and submitted that it was rightly observed by the trial Court and that, at the time of sale of property through Exh.D-D-2, getting a copy of Fard Malkiat is a necessary requirement. There is no reason that the respondent remained unaware of the sale of their land through impugned mutation. It was emphasized that finding of learned trial Court, has not been considered and discussed by the appellate Court.

7. Learned counsel for the respondent, on the other hand, has submitted that the mutation of sale, was incorporated without specific mention of actual nature of transaction between the parties and the terms of sale. Learned counsel has referred to the statement of DW-1, who had deposed that mutation was entered on 14-2-974 and was sanctioned on 16-12-1974. No justification for delay has been brought on record that why the attestation of mutation was delayed for 10 months. The delay gives rise to the suspicion that the period of 10 (ten) months was consumed to play fraud with parda nashin ladies. Learned counsel has submitted that mutation is always entered at the instance of vendor, but Abdur Razzaq, Patwari (D.W.2) has admitted that mutation was entered at the request of Faiz Muhammad (vendee). Learned counsel has pointed out that DW-2 has stated that vendor's thumb-impression is taken in routine on Fard Patwar but he admitted that he had not brought Pert Patwar and Pert Sarkar with him. The witness has stated that the mutation was entered at the site, while other witnesses have stated that mutation was entered at the `Dera' of Babu Muhammad Hussan. The witness then changed his stance and stated that mutation was entered at Patwar Khana of Abdur Razzaq. The witness has admitted that he had not brought with him and that Mst. Khurshid Bibi, was not known to him and according to him, was a pardanashin lady. He has also stated that he cannot state with certainty that the one who appeared before him, was Khurshid Bibi, but he was told that Khurshid Bibi appeared before him, at the time of attestation of mutation. Learned counsel then went through the statement of Sardar Ali (DW-3), who admitted that he was not the resident of the village. Khurshid Bibi was wearing Burqa and at the time of attestation of mutation, her brother was not present. He has also admitted that Umar Wadda was Lamberdar and he had not appeared as witness. Learned counsel has submitted that DW-3 is identifier and has admitted having no visiting terms, with the vendor at her house and was unaware of her residence. He had shown ignorance about the sale consideration and admitted that he was not present at the time of bargain. Learned counsel went on to appraise the evidence of Faiz Muhammad (D. W.4) and submitted that according to his statement, sale consideration was paid in presence of Sher Muhammad and Jehangir. Jehangir did not appear as a witness, while Sher Muhammad has stated that mutation was sanctioned three days after it's entry. Learned counsel has referred to section 42(7) of Land Revenue Act and submitted that the witnesses who appeared to support the mutation, do not fall within the categories of witnesses, as is required under subsection (7) of the above provision. Learned counsel has submitted that name of Sher Muhammad was added subsequently in Exh.P-I and at it's back there are thumb impressions. The names of the persons, who put their thumb impressions, are written below the thumb impressions, while in the instant case, the names are at the top of the thumb impressions. Learned counsel has submitted that the objection of the petitioners regarding limitation, has already been answered by the apex Court in a case of Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591, which has identical facts. Learned counsel, to further support his contention that his case is within limitation, has referred to the cases of Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 and Walyat v. Mst. Kaneez Fataima 1994 MLD 1955. Learned counsel then referred to the cases of Muhammad Akram and another v, Altaf Ahmad PLD 2003 SC 688 and Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1 to contend that fraud vitiates most solemn proceedings.

8. Learned counsel for the respondents, contesting the application for additional evidence of the petitioners, has submitted that the petitioners had moved his application, seeking permission to lead additional evidence, after 6 years, which is not to be entertained. He has placed reliance upon the case of Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671, in support of this contention.

9. Heard learned counsel for the parties and record perused.

10. Barkat Bibi and Khurshid Bibi, who have specifically asserted in their suits/plaints that they are pardanashin ladies, living permanently in District Kasur, far away from the land in dispute and that they have not appeared before the Revenue Officer for sanction of the impugned Mutations Nos.90 and 91 dated 16-12-1974. Issue No.1 was stuck in this regard and while framing the issue, learned trial Court placed onus of proof of this issue, on the plaintiff/respondent instead of defendants/petitioners. Learned appellate Court, while passing the impugned judgment and decree, has observed that, where a party wants to derive a benefit from the transaction, where a Parda Nashin lady is a party, in which transaction, then it is for the opposite party to prove that the Parda Nashin lady actually entered into transaction and consented to the sanction of mutation. Lower appellate Court was right in observing so. Onus is never static and shifts during trial. While holding so, I am fortified by the dictum of Hon'able Supreme Court in the case of Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642.

11. The respondents/plaintiffs have claimed that they are Parda Nashin ladies and the petitioners, through impersonation, produced some one else, in their place, to effect mutation in the revenue record and got it sanctioned. The factum of their being Pardanashin ladies, is evident from the statement of D.W.3, who deposed that Khurshid Bibi was covered in veil and her brother was not accompanying her. Two persons have identified these ladies/vendors namely Sardar Ali son of Mian Muhammad Kharal (D.W.3) and Ghulam Rasool son of Noor Muhammad. Ghulam Rasool appeared as P.W.3 and stated that he does not know Mst. Khurshid Bibi/Barkat Bibi. He has totally denied the identification of Mst. Khurshid Bibi, at the time of attestation of mutation. He has also denied that he appeared before the Tehsildar or Patwari to identify Mst. Khurshid Bibi. Sher Muhammad son of Jamal Din appeared as P.W.2 and categorically stated that he has not identified the plaintiff. D.W.3 Sardar Ali was admitted that vendor was not known to him and it was Faiz Muhammad, the vendee, who had informed him that lady clad in Burqa, is the vendor. D.W.3 has shown total ignorance about the children of vendor, name of her husband and place of her residence.

12. The statements of P.W.2, P.W.3 and D.W.3 negate the story of presence of the ladies at the time of sanction of mutation, as put forth by Faiz Muhammad. The Lumberdar or a local councillor was not called to identify her. The absence of a close relative at the time of attestation of mutation to identify the vendors, supports the stance of the respondents that the impugned Mutations Nos.90 and 91 were attested through impersonation.

13. Admittedly, the alleged sale consideration was paid, without receipt thereof. D.W.4 Faiz Muhammad (vendee), has stated that the whole amount of the sale consideration, was paid, at the time of sanction of the mutation, but the mutation speaks otherwise. It. is incorporated in the mutation that it is sanctioned for consideration of Rs.40,000, without mentioning that this amount was paid at the time of sanctioning of the mutation. No. witness of the defendant, came forward to state in the witness box that the sale consideration was paid in his presence, at the time of attestation of the mutation. DW-2 has neither produced Fard Patwar nor Pert Sarkar. He has admitted that Roznamcha Waqiati is also not available. In the absence of material record of Revenue department, the veracity and genuineness of the impugned mutation, has not been established.

14. Now I will advert to the question of limitation. Respondents have challenged mutation dated 16-12-1974 through filing suit on 29-9-1987. The suit has been filed, after 12 years, 9 months and 14 days of the attestation of the impugned mutation. The respondents have justified the delay on the plea that the property in dispute was in possession of the tenant Mehr Hazar Khan, who had been paying them share of produce. Mehr Hazar Khan is now, through another sale, in possession of a part of the property, being beneficiary of impugned sale, who had kept the respondents in dark about the impugned mutation. This aspect cannot be ignored. The suit was filed within three years of the disclosure of the fraudulent transaction of alienation of the land of the respondents, through the impugned mutations.

15. The petitioners, on the other hand, have asserted that sanction of impugned mutations was in the knowledge of respondent, as they appeared before Revenue Officer at the time of attestation. They had admitted in sale deed (Exh.D-2) that they have sold their entire land in the village and that at the time of sale through registered deed they had procured Fard from Patwari. The had not filed the suit within the period of limitation, which was rightly dismissed by the trial court.

16. I am not convinced with the stance of learned counsel for the petitioners that the respondents had the knowledge of sale for various reasons. Firstly, the vendors are Parda Nashin ladies, they are illiterate and have put their' thumb impressions on various documents. They have no capacity or understanding about the contents of registered sale deed. Secondly, Exh.D-2 was executed through their special attorney and not by the vendors themselves. They sale, through attorney, justifies the ignorance of the vendors about the impugned mutation. At this stage, reference to the case of Mst. Raj Bibi (supra), requires specific mention, where two illiterate women were deprived of their land and the purported sale, which was held valid by the courts, ignoring that they were not identified by their close relatives and were residing in different villages; sale consideration was not paid before the Tehsildar, at the time of attestation of the impugned mutation nor the sale was incorporated in Patwari's record; Roznamcha Waqiati did not bear the thumb-impressions of two women, was held a fraudulent transaction and the apex Court, observing that fraud vitiates most solemn proceeding or transaction. Such transaction, which is based on fraud, is void. Notwithstanding the bar of limitation, such matters can be considered on merits, so as not to allow fraud to perpetuate. The facts and circumstances of the case in hands, are identical to the case of Mst. Raj Bibi (supra) and the same are required to be treated in the same manner. The impugned mutation effected through fraud and misrepresentation, is a void transaction. Parda Nashin ladies, who are ignorant, weak and infirm, cannot be deprived of their valuable rights on the basis of a transaction, which is improbable and unnatural. Such transaction does not attract the provisions of Limitation Act and can be challenged and the period to challenge such transaction, runs from the date of knowledge of such transaction. The suit was filed within three years of the knowledge of the fraudulent transaction, thus, it was within time and rightly held so by the appellate Court.

17. An application has statedly been filed for permission to produce additional evidence. The documents, sought to be produced in additional evidence, was available with the petitioners. It was not produced at the time of recording of evidence and it's permission is sought, at the time when an adverse order has been passed against the petitioners. Thus, such document cannot be allowed at this belated stage. It has been held by the apex Court in the case of Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 that an unsuccessful party cannot be allowed to adduce additional evidence at belated stage.

18. For the foregoing, no instances of misreading or non-reading of evidence, is found in the impugned judgments. They are devoid of any illegality or infirmity and do not call for interference in the revisional jurisdiction of this Court. These petitions have no force or merit and are accordingly dismissed, with no orders as to the costs. M.H./F-29/L Petitions dismissed.