2004 PLP 1026 (CLC)

Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324; Imam Ali Shah and others v. Ahmad Shah and others PLD 1977 Kar. 688; Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1.055; Janat Bibi v. Sikandar Ali and 2 others 1982 CLC 2076; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Sh. Allah Ditta v. Mst. Zainab Begum and 4 others 1993 CLC 234 ref. Ch. Muhammad Ashraf Mohandra for Petitioner. Through this civil revision, the impugned judgment and decree, dated 14-2-2004 passed by learned Additional District Judge, Rahimyar Khan, by which the appeal of the plaintiff-petitioner against the judgment and decree, dated 14-5-2002 of the learned Senior Civil Judge, Rahimyar Khan was dismissed, has been called in question.

2. To be concise on the facts, Muhammad Rasheed, petitioner had filed a suit for specific performance on the basis of an alleged agreement to sell, dated 10-1-1998, regarding the lands, measuring 6 Kanals, 12 Marlas situated in Chak No.75/P, Tehsil and District Rahimyar Khan, allegedly settled for Rs.40,000 out of which Rs.39,000 were allegedly paid by the plaintiff to his sister Mst. Saleema Bibi, the defendant respondent upon appearance in the Court, the defendant contested the suit by filing a written statement, in which she had categorically asserted that document of agreement to sell, dated 10-1-1998 and the receipt of even date were fictitious, collusive and based on fraud and were forged documents in their nature. It was averred in the aforesaid written statement that the defendant had never agreed to sell the land in dispute and had not received any sale amount. The defendant pleaded in the written statement that Ghulam Mustafa, her real son had earlier committed a fraud with her and got those lands transferred in his name against that son she had proceeded. During those proceedings, the plaintiff had got thumb-marked upon two stamp papers and one plain paper. As the defendant was an illiterate lady, so the fraud was committed upon her. Issues were framed and the parties had produced their respective evidences. Muhammad Rasheed, plaintiff appeared as P.W.1, Manzoor Hussain, P.W.2 and Abdul Majeed, P.W.3 were produced by the plaintiff as his witnesses, while Rizwan Ali and Ghulam Mustafa had appeared as D.W.1 and D.W.2 on behalf of the defendant. The learned Senior Civil Judge, Rahimyar Khan dismissed the suit with costs on 14-5-2002, after appreciating and evaluating the evidence on the record. The appeal filed by Muhammad Rasheed before the learned District Judge was, heard by the learned Additional District. Judge, Rahimyar Khan, who also dismissed the appeal on 14-2-2004.

3. The learned counsel appearing on behalf of the plaintiff- petitioner submits that the execution of the agreement to sell and the receipt were proved when the defendant had thumb-marked upon two stamp papers and one plain paper. Laying great stress, he has also referred to Dil Murad and others v. Akbar Shah 1986 SCMR 306 and Ghulam Rasool v. Bashir Ahmad and 4 others 2001 CLC

138. According to the learned counsel, once the thumb-marks upon a document is admitted, the burden of proof shifts upon the person admitting the thumb-marks upon the document. As defendant had failed to prove the forged and fictitious nature of the documents in dispute, therefore, learned Courts below had misapplied the law.

4. I have considered the arguments of the learned counsel for the petitioner and perused the record.

5. Both the learned Courts below have concurrently found that execution of agreement to sell was not proved by the petitioner as no cogent direct evidence with regard to the payment of sale price was; brought on the record by the plaintiff. These findings which relate to the domain of findings of facts, are not amenable to the exercise of this revisional jurisdiction except that there are proved exceptional circumstances showing misreading and non-reading, of material evidence'' on the record. The learned counsel for the petitioner has failed to point, out any such illegality.

6. It may be clarified here that the defendant had unequivocal asserted in her written statement that she was an illiterate lady and the plaintiff who was her brother had committed fraud with her. In other words, the defendant had denied the execution of the document. In these circumstances, when a transaction was being made with an illiterate lady, I then more care and caution than the ordinary man was to be shown by the beneficiary from the document. It had to be proved on record; through unshakable evidence that the afore-mentioned lady had got an independent advice and had settled the bargain with conscious mind of alienating/transferring the property in dispute in favour of the petitioner. Mere thumb-marking and especially of an illiterate lady is not sufficient to prove that the transaction contained in the document was understood, by her. A person who is in a position to exert pressure or has got a relation of great confidence to wield influence upon the illiterate lady, if gets a transaction executed in his favour, that has to be seen with great doubt and in such case, the beneficiary of the document has to prove that the executant was emancipated from the above influence and had acted with an independent advice, with his free will and consent. Petitioner being real brother and acting as an assistant in the retrieving of the lands from the son of the alleged executant was in a position of holding great influence. In such case, it was necessary for the petitioner to prove the above ingredients. Precedent law on these points has been found in abundance in the following law journals:-- (1) Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324, (2) Imam Ali Shah and others v. Ahmad Shah and others PLD 1977 Kar. 688, (3) Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1055, (4) Janat Bibi v. Sikandar Ali and 2 others 1982 CLC 2076, (5) Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and (6) Sh. Allah Ditta v. Mist. Zainab Begum and 4 others 1993 CLC 234.

7. The fact of illiteracy of defendant has not been denied by the plaintiff-petitioner. Therefore, the plaintiff was bound to prove that an independent advice was available to the defendant before she was made to thumb-mark the alleged disputed agreement to sell. I have myself appraised the evidence and have found an important omission in the evidence of the plaintiff in the shape of non-payment of alleged sale consideration of Rs.39,000 asserted by the petitioner having not been proved on the record. Not a single witness has deposed that such an amount was paid before him. The alleged marginal witnesses of agreement to sell P.W.2 Manzoor Hussain and P.W.3 Abdul Majeed have admitted in their statements that Rs.39,000 were not paid before them. Whereas the agreement to sell gives an impression of payment of Rs.39,000 at the time of execution of the aforesaid documents. So the most vital ingredient of payment of sale consideration having been found deficient in the case, the judgments of the leaned Courts below are not C reversible. The concurrent findings of fact are, therefore, not liable to be disturbed as no special circumstances have been found by me from the record. Accordingly, the civil revision is dismissed in limine with no order as to costs. M.A.W./M-210/L. Revision dismissed.