2006 PLP 831 (YLR)

MIAN SAQIB NISAR, J.

Both the C.R.No.1037 of 1989 and C.R. No.1038 of 1989, are being disposed of together through this single judgment, as the facts and circumstances of the matters are identical.

2. Mst. Bakhan, Mst. Muradan and Mst. Ghulam Fatima, the petitioners in both these petitions, are the real paternal aunts of Ahmad Yar son of Sikandar, the respondent. They through registered sale? deeds dated 31-12-1980 respectively, allegedly sold their lands measuring 7 Kanals and 14 Marlas each, in favour of Ahmad Yar for a consideration of Rs.9,

000. However, subsequently, the three ladies brought two separate suits, one by Mst. Bakhan and the other by Mst. Muradan and Mst. Ghulam Fatima, claiming that the sales in favour of Ahmad Yar are fraudulent; without consideration; invalid for misrepresentation, and are the result of manoeuvring on part of Sikandar, their brother, to deprive them of their inherited property.

3. It may be pertinent to state here, that in the case of Bakhan, besides Ahmad Yar, Ghulam Hussain (the other son of Sikandar), who is a marginal witness of these deeds and has appeared as D.W.2; and Saad Ullah, Lambardar, the other marginal witness of the deeds and the one who identified the ladies are arrayed. Whereas in the other case, in addition to the above, Sikandar was impleaded as one of the defendants.

4. The matters were resisted by the defendants Ahmad Yar and perhaps his brother and father as well. But Saad Ullah, who was duly served, he opted not to appear and was proceeded ex parse. Anyhow, issues were framed, parties were put to trial and the learned Civil Judge vide judgment and decree dated 5-1-1986 allowed both the suits. Aggrieved of this judgment and decrees, the respondent preferred the appeals, which have been accepted and the learned Additional District Judge has reversed the finding of the trial Court, by holding that Ahmad Yar has proved the genuine sales, for valid consideration in his favour. This judgment and decrees of the learned appellate Court was challenged through these civil revisions, which were decided against the petitioners vide judgment dated 11-12-2000, and were dismissed. However, the petitioners approached the Honourable Supreme Court; their appeals have been accepted, judgment of this Court has been set aside and the matter has been remanded for a decision afresh.

5. Learned counsel for the petitioners contends that Sikandar, the father of the respondent is/was the real brother of the petitioners; it is he, who in the usual customary manner, in order to deprive the sisters, has manoeuvred the sales by producing some other lady, both at the time of execution, and the registration of the sale deeds and also the mutation; the petitioners were never aware of any alleged transaction of sale, and the moment they got the knowledge, the sales were challenged accordingly. It is also submitted that in case where a transaction/alienation is alleged to have been made by Pardanashin illiterate lady, the burden of proving, that such lady by independent application of mind, on an independent advice of some male member of her family, for a lawful consideration, had agreed to make the alienation of her property, is on the shoulder of the alienee. But the proofs of all these facts, which are sine qua non for the validity of the sales in-question, are conspicuously missing in the present case. Therefore, the learned appellate Court has not only grossly misread the evidence on the record, but has also failed to follow the law laid down in the judgment of the Honourable Supreme Court of Pakistan' reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). It is further submitted that, when Mst. Bakhan and Mst. Muradan had appeared in the witness-box in their respective cases and deposed that they had. never sold the property, or executed the deeds, or appeared before the Sub-Registrar or the Patwri, being the Pardanashin illiterate ladies, the onus initially on their shoulders, stood discharged and it had become incumbent and the duty of the respondent, in positive terms, to prove that the sales were agreed and accomplished in the manner as alleged; the consideration was paid and the ladies had executed the sale-deeds with conscious application of mind, that they were selling their land in favour of the respondent. And that too under the advice of any of their adult family member. It is further submitted that D.W.1 Iqbal is not the witness of the sale-deeds. He only claims that a day before the registration of the deed, Mst. Bakhan, Mst. Muradan and Mst. Ghulam Fatima acknowledged that Sikandar was their real brother and they were giving him the property. It is further submitted that Ghulam Hussain, though is the witness of the sale-deed, but he is the real brother of Ahmad Yar; he being an interested witness, his statement cannot be given much evidentiary value. Further it is argued, that Saad Ullah Khan, Lambardar, who identified the ladies before the Sub-Registrar, is not the Lambardar of the same village; even otherwise, as conceded by Ghulam Hussain?? P.W.2, the said Lambardar is friend of Sikandar and was on visiting terms with his family and also came to the office of the Sub-Registrar at the request of Sikandaf; he was made a party to the suit, but was proceeded ex parte. All these facts taken together, according to the learned counsel, leads to an irresistible conclusion, that the sales in favour of the respondent, are manoeuvred and fraudulent, because the petitioners never sold the property for any lawful consideration, which as mentioned above, has not been proved by the respondent. It is reiterated that there is no evidence about the payment of the sale consideration to the petitioners and thus, in the absence thereof, the sales are void ab initio.

6. Mian Dilawar Mehmood, learned counsel for the respondent has argued, that there is ample evidence on the record that the plaintiffs in both the set of the cases, have voluntarily sold the laud in-question in favour of the respondent and had received the consideration from him. These ladies have thumb-marked the sale-deeds, appeared before the Sub-Registrar, all these facts have been established through cogent and positive evidence in the nature of the statements made by Iqbal P.W. and Ghulam Hussain P.W.2; besides, the stamp vendor and the scribe (whose son appeared because he had died by the time), have deposed that the ladies have duly purchased the papers and also executed the sale-deeds. It has been further pointed out by Mian Dilawar Mehmood, Advocate that in C.R. No.1038 of 1989, which arises out of the suit filed by Mst. Muradan and Mst. Ghulam Fatima. Mst. Ghulam Fatima appeared before this Court on 14-2-2002 and stated that she had sold her land in favour of Ahmad Yar her nephew about 20 years ago and also received the consideration, therefore, it is submitted that to the extent of Mst. Ghulam Fatima, the petition should be dismissed, with the result that her suit also stands dismissed. The record has been perused. The plea taken by Mian Dilawar Mehmood, Advocate, is correct. There is a statement of Mst. Ghulam Fatima, who was present in the Court along with her son Liaqat Ali and had acknowledged, that she had sold her land in favour of the respondent. Accordingly, the petition as also the suit to her extent are dismissed.

7. I have heard the learned counsel for the parties. The evidence in both the cases is identical and seems to be copied verbatim, therefore, instead of referring it separately, the matters are being disposed of for the same reasoning emerging out of the common evidence on the record.

8. Mst. Muradan and Mst. Bakhan in their respective suits, have appeared as P.W.2 and have deposed that they never sold the land; did not receive any consideration; had never thumb-marked the sale-deeds; nor ever appeared before the Sub-Registrar or the Patwari. No significant cross-examination has been conducted to discredit these witnesses and the major portion is in the nature of suggestions, that their depositions are incorrect. Anyhow, as mentioned earlier, when initially discharged by the plaintiffs, the onus to prove the valid sales, for consideration, had shifted upon the shoulders of the respondent. It may be reiterated, that in the cases, Ghulam Hussain brother of the respondent Ahmad Yar, and Saad Ullah Lambardar, who allegedly identified the ladies, had also been made parties to the suit. Saad Ullah, despite service did not appear and has been proceeded ex parte vide order dated 20-10-1981, whereas Ahmad Yar respondent also absented to examine himself, rather his brother Ghulam Hussain who allegedly is the attesting witness of the sale-deeds in this case, was examined as D.W.2. Moreover, one Iqbal alias Baala has appeared as D.W.I, who in cross-examination has admitted the enmity with the plaintiffs of the case. He is also the maternal uncle of Ahmad Yar. He is not a witness of the execution of the sale-deeds, but claims that a day before the execution, some negotiations were held at the house of Mst. Bakhan (the plaintiff of one of the cases) and the consideration was also paid. It is not mentioned by him, as to what was the amount of consideration; who paid, and to whom. His evidence taken into consideration as a whole, is not confidence-inspiring at all. As far as the stamp vendor and the son of the scribe are concerned, they have conceded, that they do not know the plaintiffs, meaning thereby that they could not testify, as to who purchases the stamp papers and were present at the time of the alleged execution.

9. Now coming to the statement of Ghulam Hussain, he admittedly is the son of Sikandar and real brother of the respondent; he himself is a party to the suit and allegations of fraud and misrepresentation are also made against him. He besides being an interested witness, has not stated a single word, as to what amount of consideration has been paid to the ladies for the sale of the lands. However, the witness in his examination-in-?chief has admitted, that Saad Ullah is not the Lambardar of the concerned village, of which there are three Lambardars. He has also conceded in examination-in-chief, that his father had brought Saad Ullah for the identification purpose. Except his statement, there is no independent evidence on the record, if these deeds have been executed by the petitioners and they appeared before the Sub-Registrar. Saad Ullah, who is the identifier of the ladies at both the occasions i.e. the execution and the registration, has not been examined. It is stated by Mian Dilawar Mehmood, Advocate that Saad Ullah had died, but the fact remains that Saad Ullah was made party to these suits, but he did not contest the matter, despite service and was proceeded ex parte. Moreover, Saad Ullah is not the Lambardar of the same village and it is not convincingly shown, as to why the Lambardar of the village, who could have been the natural witness to identify the ladies, was not the identifier.

10. The argument of Mr. Dilawar Mehmood, Advocate, that the payment of the consideration has been mentioned in the sale-deed and also acknowledged before the Sub-Registrar, therefore, some sanctity must be given to these admissions, suffice it to say, that the sanctity could only be attached, if it is first proved that the executions of the deeds were effected by the plaintiffs, who appeared before the Sub-Registrar and acknowledged to have received the consideration. Therefore, when the identification of the ladies is not proved on the record, any statement made before the Sub-Registrar by whosoever was produced by the respondent, would have no meaning at all. Resultantly, I am constrained to hold that the respondents have not proved the accomplishment of the sale transactions between the parties; the payment of the sale consideration; the execution of the sale-deed by the ladies and their appearance before the Sub-Registrar for the purpose of registration. As mentioned earlier, onus to prove the above was on the shoulders of the respondent, but he has failed to discharge the same. These aspects have conspicuously escaped the eyes of the learned Court below, and thus, it being a case of misreading and non-reading, the judgment cannot sustain and is liable to be set aside.

11. Mian Dilawar Mehmood, learned counsel for the respondent has laid much reliance upon the statement of Mst. Ghulam Fatima in C.R. No.1038 of 1989, acknowledging the sale. Suffice it to say that, it is settled law that admission of a co-defendant is not binding upon the other. Moreover, the argument that Mst. Muradan in her cross-examination has admitted that the land was sold for the purpose of the treatment of the husband of Mst. Bakhan, it may be pertinent to state here that, reading the statement in its proper context, it cannot be ascertained, if she made the reference to the suit-land or some other. Even otherwise, Mst. Muradan on account of the above statement, cannot be said to have admitted the disputed sales either herself or by Bakhan in favour of Ahmad Yar.

12. Before parting, it may be mentioned that, vide order dated 27-1-2004, I had directed as under: "In the facts and circumstances, I also find that there is a necessity of examining the Finger Print Expert, so as to verify, whether the thumb-impressions of the petitioner lady on the impugned sale-deeds are genuine or otherwise. This definitely would facilitate the adjudication of the case, when such report is considered in the light of other evidence, and is also in the interest of due administration of justice. Resultantly, I intend to record the additional evidence in the shape of opinion of the Finger Print Expert.??????? Thus, let the petitioner appear before this Court on the next date of hearing for the purpose of giving her specimens of thumb-impressions."

13. However, despite opportunities given, the ladies are not present. It has been explained by Mr. Muhammad Farooq Qureshi Chishti, learned counsel for the petitioners that, he despite his best efforts, has not been able to get in touch with the petitioners. Be that as it may, I am not inclined to raise any presumption for the non-appearance of the ladies to comply with the said order, for giving their specimens of the thumb-impression, as has been suggested by Mian Dilawar Mehmood, Advocate, because of the reason that, before hearing the case at full length, I was under the impression, while passing the aforesaid order that one of the questions involved, and which may arise in the matter is, whether the petitioners have thumb-marked the sale deeds or not. But on considering the evidence elaborately, I am of the view that, this question has become irrelevant for the reason that the respondent, neither before the Court of appeal nor before this Court ever agitated G for the additional evidence. I felt the requirement myself at that stage, but now after fully examining the case, I do not feel the necessity of such additional evidence. Resultantly, I am not inclined to raise any presumption against the petitioners for their non-appearance, who on account of lack of contact by their counsel, are not before this Court. In the light of whatever has been stated above, these petitions are allowed and the judgment and decree of the learned appellate Court in both the cases, except to the extent of Ghulam Fatima is set aside, and that of the learned trial Court is restored. As regards Mst. Ghulam Fatima, her petition, as mentioned above, is dismissed, with the result that her suit against the respondent also stands dismissed. F.M./B-55/L??? ??????????????????????????????????????????????????????????????????????????????????? Order accordingly.