Mst Jindan etc. vs Abdul Razzaq etc.

Stereo. H C J D A 38

JUDGMENT SHEET

LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C. R. No. 754-D of 2015

Mst. Jindan and another

VERSUS

Abdul Razzaq and another

JUDGMENT

Date of Hearing 24.10.2022 Petitioners by: Rana M. Nazir Khan Saeed, Advocate Respondent No. 1 by: Nemo Respondent No. 2 by: Mr. Azmat Islam, Advocate

ABID HUSSAIN CHATTHA, J. This Civil Revision is directed against the impugned Judgment dated 31.05.2011 passed by Civil Judge, Dera Ghazi Khan to the extent of dismissal of suit against Respondent No. 2 and impugned Judgment & Decree dated 19.05.2015 passed by Additional District Judge, Dera Ghazi, Khan, respectively.

2.Respondents No. 1 & 2 were initially proceeded exparte vide Orders dated 16.02.2021 and 18.03.2021. However, both the Respondents were duly represented through their counsels on 19.10.2022 when the case was heard and relisted for 24.10.2022 for provision of case law. Today, counsel for Respondent No. 1 did not appear, however, the required case law was submitted for and on his behalf by learned counsel for Respondent No. 2.

3.Precisely, the Petitioners instituted a suit for declaration contending therein that their deceased father, Ahmed was owner-in-possession of suit property measuring 48 Kanals situated in Mauza Tibbi Esran, Tehsil and District Dera Ghazi Khan fully described in head note of the plaint (the “Property”) who died at the age of 90 years. He was mentally feeble and unable to understand the consequences of his actions on account of

C. R. No. 754-D of 2015

his old age. Exploiting his old age and compromised mental state of mind, their real brother, Respondent No. 1 by exerting undue influence successfully got alienated the land measuring 44 Kanals in his favour out of the Property through gift mutation No. 581 and land measuring 04 Kanals out of the Property in favour of Respondent No. 2 through sale mutation No.

580.It was asserted that the Petitioners are owners-in-possession to the extent of their Sharia shares in the Property. Accordingly, the aforesaid mutations were assailed being against the law and facts and result of undue influence and or through impersonation. It was prayed that the impugned mutations are ineffective qua the rights of the Petitioners and are liable to be set-aside. The permanent injunction was also prayed for as a consequential relief.

4.Respondents No. 1 & 2 filed their separate written statements controverting the factual assertions contained in the plaint and by raising a number of preliminary objections. Respondent No. 1 asserted that age of his father was 60 to 61 years and he was physically and mentally healthy person who undertook the transactions by fully understanding their nature and effect. He further stated that part of the Property was gifted to him by his deceased father with his free will and consent for rendering personal services to him, whereas, 04 Kanals out of the Property was alienated by his father in favour of Respondent No. 2 by way of sale after receiving the sale consideration. Respondent No. 2 in his written statement submitted that he is bona fide purchaser and had purchased part of the Property after paying the consideration of Rs. 100,000/- and at the time of sale mutation, the deceased Ahmad was enjoying good health and was aged around 70 to 72 years. It was prayed that the suit be dismissed.

5.It is importantly noted that initially the suit was filed by Mst. Pathani, Mst. Ayesha, Mst. Jindan, Mst. Hajran and Mst. Farzana but later the suit was dismissed as withdrawn to the extent of Mst. Pathani, Mst. Ayesha and Mst. Farzana, whereafter, an amended plaint was filed by the present Petitioners after deleting the names of other three claimants.

6.The Trial Court out of the divergent pleadings of the parties framed the following issues:-

C. R. No. 754-D of 2015

(i)Whether the plaintiffs have no cause of action to file this suit?

OPD

(ii)Whether the suit is insufficiently stamped for the purpose of court fee, if so, what is its proper valuation? OPD

(iii)Whether the suit is maintainable in its present form? OPD

(iv)Whether the suit is based on mala fide and is liable to be dismissed? OPD

(v)Whether defendant No. 2 is bona fide purchaser without notice?

OPD

(vi)Whether ancestor of plaintiffs and defendant No. 1 was very healthy at the time of sanctioning of alleged mutation, he was well aware of his profit and loss and he was not under influence of any one? OPD No. 1

(vii)Whether the plaintiffs are owner in possession of the suit property mentioned in the head note of the plaint and defendants have no concern with the same? OPP

(viii)Whether mutation No. 581 dated 22.8.03, mutation No. 580 dated 22.8.03 and entries in the revenue record are against law and facts, same are result of under influence, forgery and misrepresentation, based on malafide and are liable to be cancelled? OPP

(ix)Whether the plaintiffs are entitled to get the decree for declaration alongwith mandatory injunction as prayed for? OPP

(x)Relief.

7.The evidence of the parties was duly recorded by the Trial Court. The Trial Court partially decreed the suit in favour of the Petitioners and against Respondent No. 1 and set aside the impugned gift mutation No. 581. However, the suit of the Petitioners to the extent of Respondent No. 2 was dismissed. The following reasons were advanced by the Trial Court while deciding the suit:-

C. R. No. 754-D of 2015

(i)Petitioner No. 1 (PW-1) deposed that at the time of death of her father, he was 90 years old, mentally feeble and had acute eyesight and hearing abilities, as such, was unable to walk and understand his actions or was not in a position to appear before any revenue officer for attestation of the impugned mutations;

(ii)Allah Wasaya appeared as PW-2 and corroborated the stance of PW-1. He deposed that the impugned mutations were result of fraud and collusiveness of the Respondents with the revenue officials;

(iii)After shifting the initial burden of proof placed on the Petitioners, it was required by Respondents No. 1 & 2, respectively to prove the transactions / impugned mutations separately being beneficiaries of the same;

(iv)Respondent No. 1 appeared as DW-3 and recorded his testimony. He also produced the concerned Revenue officials to prove his assertion that gift mutation was lawfully attested. However, he could not prove that possession of part of the Property was delivered to him by his father which is an essential ingredient of gift and as such, he failed to prove the valid attestation of gift mutation in his favour; and

(v)Respondent No. 2 produced both the marginal witnesses who categorically deposed that mutation No. 580 was attested in his favour after receiving the sale consideration of Rs. 100,000/- by deceased Ahmad. The revenue officials produced as witnesses also testified this fact and as such, Respondent No. 2 was able to prove the valid execution of sale mutation attested in his favour.

8.The Petitioners preferred an Appeal against the Judgment & Decree passed by the Trial Court to the extent of dismissal of their suit against Respondent No. 2. Interestingly, no Appeal was filed by Respondent No. 1. Respondent No. 2 filed cross objections in the Appeal preferred by the Petitioners. The Appellate Court dismissed the Appeal of the Petitioners and

C. R. No. 754-D of 2015

accepted the cross objections filed by Respondent No. 2 and in consequence thereof, the impugned Judgment & Decree dated 31.05.2011 passed by the Trial Court was set aside resulting in the dismissal of the suit in its entirety. The Appellate Court rendered its decision based on the following reasons:-

(i)The pleas of undue influence and fraud in terms of misrepresentation or impersonation taken by the Petitioners in their plaint are self-contradictory to each other;

(ii)Since both the impugned mutations were attested on the same date, therefore, if deceased Ahmad was not in his senses on the date of their attestation, then both the mutations are result of undue influence and if plea of fraud and misrepresentation is taken as correct, it would mean that deceased Ahmad did not appear before the revenue officer and thumb marked the mutations and as such, both of them are result of fraud. Hence, validating one mutation and setting aside the other mutation was as erroneous finding;

(iii)PW-2 (Allah Wasaya) is the husband of Petitioner No. 1 (PW-

1)and they orally stated that deceased Ahmad was mentally ill person with weak eyesight and hearing abilities but no independent evidence was tendered regarding his medical condition;

(iv)The Petitioners having admitted the attestation of the impugned mutations by assailing the same on the basis of undue influence or fraud were first required to prove the same before the onus would have shifted upon the beneficiaries to prove the genuineness of the transactions which was otherwise admitted by the Petitioners. However, the Petitioners did not prove the undue influence or fraud regarding the alleged transactions;

(v)PW-1 deposed that her father was 90 years of age at the time of his death, whereas, PW-2 deposed that he was 100 years of age. No CNIC of the deceased was produced to prove his age. No medical prescription or any other medical record was produced

C. R. No. 754-D of 2015

to prove his physical and mental condition as alleged by the Petitioners;

(vi)PW-1 deposed that she gained knowledge of the alleged fraud after 3 to 4 months from the death of her father, whereas, PW-2 deposed that he got knowledge of the same about 15 to 30 days when deceased Ahmad was being taken to hospital by Respondent No. 1 on Rikshaw. As such, there were material contradictions in the testimonies of the witnesses of the Petitioners. In contrast, the marginal witnesses of the impugned mutations were produced as DW-1 and DW-2, respectively who fully supported the respective version of the Respondents. The revenue officials were produced as DW-4 to DW-6 to testify that deceased Ahmad appeared before the revenue officer in the presence of witnesses and alienated his land through impugned mutations. They were cross examined but they remained consistent in their depositions;

(vii)DW-1 and DW-7 deposed that deceased Ahmad had gifted the property to Respondent No. 1 against his personal services for him. The ingredients of offer and acceptance are clear from their statements. No copy of Khasra Girdawari was produced by either side to prove the fact of possession and as such, inference drawn by the Trial Court in this respect was unfair and unjust; and

(viii)The withdrawal of suit by two sisters and niece of the Petitioners also strengthened the version of the Respondents that impugned mutations were attested in accordance with law.

9.Learned counsel for the Petitioners submitted that Respondent No. 1 did not prove the three ingredients of gift, i.e. offer, acceptance and transfer of possession. He relied upon case law titled, “Abdul Rehman v. Mst. Mujeedan Bibi alias Mujeedan” (2017 SCMR 1110); “Fareed and others v. Muhammad Tufail and another” (2018 SCMR 139); “Shaukat Ullah and 2 others v. Gul Umar through L. Rs. and 5 others” (2022 YLR 628); and “Mst. Gul Bibi and another v. Mst. Sajida Bibi” (2000 CLC 399). He also

C. R. No. 754-D of 2015

contended that Respondent No. 1 did not file any Appeal regarding cancellation of his gift mutation No. 581 against the Judgment & Decree dated 31.05.2011 passed by the Trial Court and as such, it had attained finality. However, the Appellate Court erred in law by accepting the cross objections of Respondent No. 2 who had only challenged the findings of the Trial Court with respect to the said mutation. As such, the Appellate Court erred by reversing the entire Judgment & Decree passed by the Trial Court. He also relied upon case law titled, “Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others” (2014 SCMR 1365) to contend that cross objections were not meant for the purpose of challenging the decree as a whole or for having the same set aside but the same were only relevant and meant to challenge the finding on a particular issue which had been decided against a party to the lis while supporting the decree in favour of the party filing cross objections. Finally, he contended that the Appellate Court did not discuss all the issues separately as was required in terms of Order 20 Rule 5 read with Order 41 Rule 31 of the Code of Civil Procedure, 1908 (the “CPC”). Reliance was placed on case titled, “Syed Iftikhar-ud-Din Haidar Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others” ( 1996 SCMR 669). At the end, he importantly conceded that he does not press the validity of the impugned sale mutation in favour of Respondent No. 2 and would be satisfied if the decision of the Trial Court is upheld.

10.Conversely, learned counsel for the Respondents supported the impugned Judgment passed by the Appellate Court. It was submitted that an Appeal is continuation of the suit and since the Petitioners had preferred an Appeal against the Judgment & Decree passed by the Trial Court, therefore, there was no need for Respondent No. 1 to file a separate Appeal since being a Respondent in that Appeal, he had every right to put forward his contentions against the Judgment & Decree passed by the Trial Court and the Appellate Court was fully empowered to set aside the Judgment & Decree of the Trial Court. It was further stressed that it was never alleged in the plaint that the ingredients of gift were never completed and as such, no evidence was required to prove the gift transaction since the allegation upon

C. R. No. 754-D of 2015

Respondent No. 1 was with respect to exerting undue influence on his father or having committed a fraud in terms of misrepresentation regarding which the marginal witnesses and revenue officials were produced to rebut the allegations leveled in the plaint. It was emphasized that main issues were issues No. (v) to (viii) which were inter-connected and have been adequately dealt with by the Appellate Court in terms of joint reasoning and as such, there was no need for separate findings on each and every issue. It was added that Respondent No. 2 was a bona fide purchaser for value and had duly proved the impugned sale mutation in terms of payment of consideration and its due attestation through production of marginal witnesses and concerned revenue officials. Reliance was placed on cases titled, “Messrs Galadari Cement (Gulf) Ltd. v. District Judge Khuzdar and 6 others” (1986 CLC 10); and “Muhammad Anwar v. Dr. Gohar Ali” (2007

CLC 621).

11.Arguments heard. Record perused.

12.The first aspect of this case is that Respondent No. 1 did not file an Appeal with respect to Decree passed against him and in favour of the Petitioners by the Trial Court. This ipso facto implies that Respondent No. 1 accepted the findings of fact rendered by the Trial Court against him. The Hon’ble Supreme Court of Pakistan in case titled, “Mst. Bibi Fatima v. Muhammad Sarwar” (2022 SCMR 870) held that when no part of the decree is against the defendant, the defendant can argue against the said findings before the Appellate Court in the Appeal filed by the Plaintiff without filing cross Appeal or cross objections and in case a partial decree is passed against the defendant and rest of the suit is dismissed, if the Plaintiff files Appeal against the portion of dismissal of suit, then it is incumbent upon the Defendant to file cross Appeal or cross objections to challenge that part of grant of decree against him. In the instant case, Respondent No. 1 by having failed to file an Appeal or cross objections against the Judgment & Decree of the Trial Court accepted the decision being satisfied with it. It is further observed that suit of the Petitioners was dismissed against Respondent No. 2 with respect to impugned sale mutation consisting of 4 Kanals land out of the Property. He filed cross Objections against some findings of the Trial

C. R. No. 754-D of 2015

Court. In this behalf, learned counsel for the Petitioners aptly relied upon Muhammad Tabish Naeem Khan case (supra) in which it was held that cross objections are not meant for the purposes of challenging the decree as a whole or for having a decree to set aside but those were only relevant and meant to challenge a finding on a particular issue which has been decided against a party to the lis while supporting the decree in favour of the party filing the cross objections. Accordingly, it is noted that Appellate Court erred in law while setting aside the impugned Judgment & Decree as a whole passed by the Trial Court particularly in favour of Respondent No. 1 who had not filed an Appeal.

13.The Judgments passed by the Courts below have been examined in the light of evidence on record. The Petitioners in their evidence categorically deposed that deceased, Ahmad was of old age, suffering from hearing and eyesight disabilities and having a state of physical & mental health in which he was not able to understand the consequences of his actions. It was further deposed that the impugned mutations were attested under undue influence. After the candid and consistent depositions of the witnesses produced by the Petitioners, the onus to prove shifted upon Respondents No. 1 & 2 to prove the gift and sale mutations attested in their favour, respectively. Importantly, the Trial Court had also framed a specific issue No. (vi) by placing the onus to prove upon Respondent No. 1 to prove that deceased, Ahmad at the time of attestation of gift mutation was physically & mentally healthy and in senses to comprehend the consequences of his actions. Respondent No. 1 did not produce any evidence to substantiate his claim that the deceased was about 60 years of age and in good health at the time of attestation of gift mutation. The issue was not pressed at the time of arguments before the Trial Court. Moreover, as beneficiary of the gift mutation, Respondent No. 1 did not prove the valid attestation of gift in his favour by proving offer, acceptance and possession. Possession as an essential ingredient of gift was not proved by producing any evidence and the observations of the Appellate Court to the effect that the same was not required was not in accordance with law as is evident from the case law cited by learned counsel for the Petitioners.

C. R. No. 754-D of 2015

14.The ingredients of gift and sale are altogether different. Respondent No. 2 was able to prove the validity of the sale mutation through the production of marginal witnesses and revenue officials who unequivocally attested the payment of consideration and due attestation of the sale mutation. Hence, the findings of the Appellate Court that since the gift mutation was held invalid by the Trial Court, therefore, it was incumbent to hold the sale mutation as invalid or vice versa was an erroneous finding though both the impugned mutations were attested on the same date. At the cost of repetition, it is reiterated that sale mutation in favour of Respondent No. 2 was not pressed and conceded by learned counsel for the Petitioners during the course of arguments.

15.It is also noted that Judgment of the Appellate Court is also deficient in terms of Rule 31, Order 41 of the CPC as issue-wise findings were not rendered which were required in view of particular facts of the case particularly when onus of proof regarding issue No. (vi) was placed upon Respondent No. 1.

16.In view of the above, this Civil Revision is partially accepted; the impugned Judgment & Decree dated 19.05.2015 passed by the Appellate Court is set aside and the impugned Judgment & Decree dated 31.05.2011 passed by the Trial Court is upheld. No order as to costs.

(Abid Hussain Chattha) Judge *Abu Bakker*