Chaudhry Imran Mehmood VS Learned ADJ etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.1886 of 2021 Chaudhry Imran Mehmood Versus The learned Additional District & Session Judge and others Date of Hearing: 22.02.2022.

Petitioner by: Haider Syed, Advocate.

Respondents by: Mr. Raheel Aslam and Ch. Muhammad Javed Gujjar, Advocates for respondent No.3.

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.1886/2021 and 1859/2021 since they entail certain common features.

2.Through writ petition No.1886/2021, the petitioner, Chaudhry Imran Mehmood (“Ch. Mehmood”), impugns the judgment and decree dated 22.03.2021 passed by the Court of the learned Additional District Judge, Islamabad, whereby the appeal filed by respondent No.3 (Safia Bibi) against the judgment and decree dated 16.11.2019 passed by the Court of the learned Civil Judge, Islamabad, was allowed and the suit for declaration, possession, cancellation, permanent injunction and recovery of household articles filed by her, was decreed. Vide the said judgment and decree dated 16.11.2019, the learned Civil Court had dismissed the suit.

3.Through writ petition No.1859/2021, the petitioner, Muhammad Shafa, impugns the judgment and decree dated 22.03.2021 passed by the Court of the learned Additional District Judge, Islamabad, whereby his appeal against the judgment and decree dated 16.11.2019 passed by the Court of the learned Civil Judge, Islamabad, was dismissed. Vide the said judgment and decree dated 16.11.2019, the learned Civil Court had dismissed the suit for declaration, cancellation, permanent and mandatory injunction filed by Safia Bibi.

4.The record shows that on 30.06.2011, Safia Bibi instituted a suit for “declaration, possession, cancellation, permanent

injunction and recovery of household articles etc.” against Ch. Mehmood before the Court of the learned Civil Judge, Islamabad. Her case was that she was an old illiterate lady and lawful owner of House No.40/37, situated in Junejo Colony, Tarlai Kalan, Islamabad (“the suit house”) which had been allotted to her by the Government of Pakistan. Her husband and son had proceeded to Afghanistan for work and she had not been in contact with them for a long time. Ch. Mehmood had close relations with Safia Bibi’s husband and was treated him like a son. Ch. Mehmood’s offer to help Safia Bibi had been accepted by her from time to time. In paragraph 8 of the suit, it was pleaded that on 07.08.2010, Ch. Mehmood took Safia Bibi to the hospital for treating her kidney pain and injected her with an intoxicating injection. Thereafter, he took Safia Bibi to the District Courts in Islamabad and took her thumb impression on different documents while she was unconscious. On 10.08.2010, while Safia Bibi was out of city, Ch. Mehmood took possession of the suit house by breaking its locks. He also took possession of Safia Bibi’s documents including her Passport, CNIC, cheque books and original documents of the suit house. On Safia Bibi’s return, Ch. Mehmood beat her up and threw her out of the suit house. These are the bundle of facts on which Safia Bibi sought a declaration to the effect that she is the lawful owner of the suit house and that Ch. Mehmood’s status is that of a trespasser.

5.After Safia Bibi came to know that Ch. Mehmood had sold the suit house to Muhammad Shafa, an amended plaint was filed wherein Muhammad Shafa was impleaded as defendant No.2.

6.Ch. Mehmood contested the said suit by filing a written statement. The position taken by Ch. Mehmood was that Safia Bibi had transferred her rights over the suit house to him by executing written acknowledgments of receiving consideration. It was also asserted that Safia Bibi had sold the suit house with her own free will to Ch. Mehmood and handed over its possession to the latter in presence of the neighbours.

7.Muhammad Shafa had also filed a written statement wherein it was pleaded that he had purchased the suit house

from Ch. Mehmood through sale agreement dated 09.10.2012 (Exh.D/2) and had paid sale consideration amounting to Rs.8,50,000/-. He asserted that when he purchased the suit house, it was in a dilapidated condition therefore, the same was demolished and a single-storey house was constructed by him.

8.Vide order dated 19.11.2016, the learned Civil Court issued an injunction restraining the defendants in the suit from alienating / transferring and changing the nature of the suit house. From the divergent pleadings of the contesting parties, the learned Trial Court framed the following issues:- “1. Whether the defendant No.1 has duly purchased the suit house by making payment of consideration of Rs.600,000/- to the plaintiff? OPD

2.Whether the defendant No.1 has obtained the possession of suit house with the free will of plaintiff? OPD 3. Whether the defendant No.1 has prepared forged and fabricated documents regarding the purchase of suit house, if yes, then the documents are liable to be cancelled? OPP

4.Whether the plaintiff is entitled to the decree for declaration, possession and permanent injunction, as prayed for? OPP

5.Whether the suit of plaintiff is not maintainable? OPD 6. Whether the plaintiff has no cause of action or locus standi to file the present suit? OPD

7.Whether the plaintiff has not come to the court with clean hands? OPD

8.Relief.”

9.Safia Bibi gave evidence as PW.1. She produced a copy of the allotment letter as Mark-A and utility bills as Mark-B, Mark-C and Mark-D. She also produced a copy of the application to the Senior Superintendent of Police, Islamabad as Mark-E and a list of the household articles as Exh.P/1.

10.Syed Ali Musa, Advocate (DW.1), who was the scribe and witness of the sale agreement dated 07.08.2010 produced the same as Exh.D/1. Ch. Mehmood appeared as DW.2. Ghulam Yasin, who was the second attesting witness of the sale agreement dated 07.08.2010 (Exh.D/1) and who lived in the neighborhood, appeared as DW.3 whereas Muhammad Shafa / defendant No.3 appeared as DW.4 and produced the agreement to sell dated 02.10.2012 as Exh.D/4 and sale deed dated 09.10.2012 as Exh.D/3.

11.Vide judgment and decree dated 16.11.2019, the learned Civil Court dismissed Safia Bibi’s suit. She preferred an appeal against the said judgment and decree which was allowed by the learned Appellate Court vide judgment and decree dated 22.03.2021, which has been assailed by Ch. Mehmood in writ petition No.1886/2021 and by Muhammad Shafa in writ petition No.1859/2021.

12.Learned counsel for the petitioners, after narrating the facts leading to the filing of these petitions, submitted that Ch. Mehmood had purchased the suit house from Safia Bibi for valuable consideration; that the suit house was purchased through sale agreement dated 07.08.2010 (Exh.D/1); that Safia Bibi had handed over possession of the suit house to Ch. Mehmood in the presence of neighbours; that Safia Bibi’s allegation that Ch. Mehmood had intoxicated her and had obtained her thumb impression on different papers while she was intoxicated is totally untrue; that Ch. Mehmood had paid Rs.6,00,000/- to Safia Bibi as consideration for the suit house; that initially Rs.2,00,000/- was paid by cheque but subsequently it was substituted with cash payment; that Ch. Mehmood had produced the scribe and one witness of the agreement dated 07.08.2010 (Exh.D/1) in support of his case; that the learned Appellate Court could not have decreed Safia Bibi’s suit on the basis of her sole testimony; that the learned Appellate Court erred by not appreciating that there were material contradictions between Safia Bibi’s suit and her evidence; that in her suit, Safia Bibi did not plead that she was a pardanashin lady; that in her evidence, Safia Bibi resiled from her stance that Ch. Mehmood had taken her to the hospital and had intoxicated her; that in order to prove his bonafides, Ch. Mehmood had filed an application for the petitioner’s thumb impressions to be forensically examined but the same was dismissed by the learned Civil Court vide order dated 05.11.2019; and that the judgment and decree dated 16.11.2019 passed by the learned Civil Court is not suffered from any legal infirmity. Learned counsel for the

petitioners prayed for the writ petitions to be allowed in terms of the relief sought therein.

13.On the other hand, learned counsel for Safia Bibi submitted that she had not executed any agreement to sell the suit house with Ch. Mehmood; that the sale agreement dated 07.08.2010 (Exh.D/1) is a compulsorily registerable document under Section 17 read with Section 49 of the Registration Act, 1908; that since the sale agreement dated 07.08.2010 (Exh.D/1) is an unregistered document, it cannot create title in the suit house in favour of Ch. Mehmood; that it is well settled that an unregistered document cannot create title; that Ch. Mehmood took undue advantage of Safia Bibi’s illiteracy; and that Safia Bibi never received Rs.6,00,000/- as sale consideration for the suit house from Ch. Mehmood, however, she received Rs.2,00,000/- from him as a loan; and that in Safia Bibi’s examination-in-chief, she deposed that she had never executed any agreement to sell the suit house. Learned counsel for Safia Bibi prayed for the writ petitions to be dismissed.

14.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petitions have been set out in sufficient detail in paragraphs 4 to 11 above, and need not be recapitulated.

15.Ch. Mehmood claims to have purchased the suit house from Safia Bibi through sale agreement dated 07.08.2010 (Exh.D/1). This document is said to bear the thumb impression of Safia Bibi.

16.Ch. Mehmood also claims that he returned the cheque for Rs.2,00,000/- to Safia Bibi and in lieu thereof paid her Rs.2,00,000/- in cash. In support of this plea, Ch. Mehmood produced iqrarnama beh dated 10.08.2010 (Exh.D/2), which according to him bears the thumb impression of Safia Bibi.

17.The thumb impression of Safia Bibi on Exh.D/1 and D/2 would show that she was an illiterate lady. Had Safia Bibi been an educated lady, there was no reason for her not to have signed the sale agreements (Exh.D/1 and D/2).

18.In paragraph 7 of the plaint, it was pleaded that Safia Bibi was an illiterate lady. To the said paragraph, Ch. Mehmood and Muhammad Shafa have made an evasive denial in their written statements. Safia Bibi had given evidence as PW.1 and in her cross-examination, she had deposed that she was an illiterate lady, and that she had no knowledge as to the contents of the plaint. During her cross-examination, it was not suggested to her that she was an educated lady or that she had understood or had been made to understand the contents of the agreements Exh.D/1 and D/2.

19.It is well settled that the beneficiaries of documents executed by ignorant / illiterate / pardanashin lady have to prove by overwhelming evidence, the execution of such documents by ladies and they have to further prove that such transactions and such documents were explained to the executants who had independent advice at the relevant time. It is not sufficient to prove that the document was read over to such an illiterate lady. It must be proved that the document was explained to her and that she understood its nature and effect. Reference in this regard may be made to the law laid down by the Superior Courts in the cases reported as Mian Allah Ditta Vs. Mst. Sakina Bibi (2013 SCMR 868), Sultan Ahmad Vs. Muhammad Yousuf (2011 SCMR 621), Ch. Muneer Hussain Vs. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658), Government of Balochistan Department of Health Vs. Dr. Zahida Kakar (2005 SCMR 641), Muhammad Tufail Vs. Akbar Ali (2004 SCMR 1370), Khawas Khan through legal heirs Vs. Sabir Hussain Shah (2004 SCMR 1259), Muhammad Azam Vs. Mst. Bagbari (2002 SCMR 1081) and Amirzada Khan Vs. Itbar Khan (2001 SCMR 609).

20.Additionally, in the cases reported as Mst. Hawa Vs. Muhammad Yousuf (PLD 1969 Karachi 324) and Ayana Dasi Vs. Arena Bala Dasi (PLD 1961 Dacca 140), it has been held that a person taking advantage of a sale transaction entered into with a pardanashin illiterate lady must show that the contents of the sale deed executed by the pardanashin lady were fully explained to and understood by the executant and she adopted it with full

knowledge and comprehension. Mere physical execution of the deed is not real proof of true knowledge or understanding mind.

21.Now, when the alleged sale agreement dated 07.08.2010 (Exh.D/1) was executed between Ch. Mehmood and Safia Bibi, the law with respect to a purchase of property from an illiterate lady had been well settled. The said sale agreement does not show that Safia Bibi had obtained any independent advice from a relative or from a person well known to her as to the contents of the said agreement. None of the witnesses that appeared for the defendants deposed that the contents of the said agreement had been read over or explained to Safia Bibi before she signed the same. Ch. Mehmood (DW.2), in his cross-examination, deposed that when the iqrarnama was executed with Safia Bibi, no relative of her’s was present. Ghulam Yasin (DW.3), in his cross- examination, also deposed that when the agreement was executed between Ch. Mehmood and Safia Bibi, no relative of the latter was present. The learned Appellate Court’s finding that at the time when the sale agreement (Exh.D/1) with Safia Bibi was executed, no relative of her’s was present, is in consonance with the evidence on the record. This evidence shows that the essential prerequisite for validly purchasing immovable property from an illiterate lady had not been satisfied in the case at hand. In holding so, I place reliance on the law laid down in the following judgments:-

(i)In the case of Muhammad Naeem Khan Vs. Muqadas Khan (PLD 2022 SC 99), it has been held as follows:- “8. The denotation and import of phrase “Pardanashin lady” depicts a woman who heeded stringent and unyielding canons and ethics of seclusion and privacy and according to the customs may object to show up in a public office or have no communication except behind the screen with any male person save as near relatives. In our Holy Quran also, the believing women are commanded to draw their cloaks close round them (when they go abroad) and lower their gaze and guard their chastity and not to reveal their adornments except what normally appears. Allah is ever Forgiving and Merciful. (Ref: Surah Al-Ahzab, Verse No.59 and Surah An-Noor, Verse No.31). If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince the Court that it has been

read over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.”

(ii)In the case of Muhammad Nazeer Vs. Khurshid Begum (2005 SCMR 941), the Hon'ble Supreme Court upheld the finding of the Hon'ble Lahore High Court that the execution of a sale deed by an illiterate lady had not been proved in accordance with the law for mere presence of thumb impressions of the lady on the document which she had alleged to have been obtained by being given to understand that it was for getting a loan for a tractor were not sufficient to prove the execution of the sale deed. Furthermore, it was held that as follows:- “The respondent-plaintiff was a widow having minor children according to learned counsel but none of the near relatives was made to join the transaction and its settlement to prove that the respondent had independent advice about what she was doing as according to settled law, such an evidence necessary to prove execution of sale-deed by an illiterate Pardanashin lady in a case where the execution thereof had been denied and document challenged on the ground of fraud.”

(iii)In the case of Ghulam Muhammad Vs. Zohran Bibi (2021 SCMR 19), it has been held as follows:- “It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. None of the said parameters had been met in the case in hand.”

22.I am conscious of the fact that the judgment and decree dated 22.03.2021 of the learned Appellate Court has been assailed in the Constitutional jurisdiction of this Court. I have gone through the evidence on the record in order to determine whether the Appellate Court’s judgment and decree suffered from any misreading or non-reading of evidence on the record. In the case of Amir Haider Vs. Shabbir Ahmad (2000 SCMR 859), it has been held that where the judgments of the Trial Court and Appellate Court are at variance, the High Court can reverse the decision of the Appellate Court if the same is the result of misreading of material evidence and also suffered from non- reading of material evidence on the record. Additionally, in the case of Abbas Ali Shah Vs. Ghulam Ali (2004 SCMR 1342), it was held that if the findings of the two lower Courts are at variance, the conflict would be seen to assess the comparative merits of such findings in the light of the facts of the case and reasons in support of two different findings given by the two Courts on a question of fact.

23.There is no doubt that there are contradictions in Safia Bibi’s case. In her suit, she pleaded that Ch. Mehmood took her to the hospital and intoxicated her. She also pleaded that in an intoxicated state, she was taken to the District Courts in Islamabad where her thumb impression was obtained on documents. In her evidence, she has not deposed any such fact. Rather she deposed that Ch. Mehmood had not taken her to the hospital or to the Courts. She admitted in her evidence that she had taken Rs.2,00,000/- from Ch. Mehmood as financial aid. These contradictions in Safia Bibi’s case caused the learned Trial Court to dismiss her suit. Additionally, the learned Trial Court held that the sale agreement dated 07.08.2010 (Exh.D/1) had been proved by Ch. Mehmood by producing the scribe as well as the two marginal witnesses. However, the learned Trial Court did not take into account the essential prerequisites laid down in several judgments of the Superior Courts for a valid transaction for the sale of immovable property executed by an illiterate lady. The learned Trial Court ignored the evidence on the record that

Safia Bibi did not obtain any independent advice from a relative or a person living in the vicinity as to the nature of the transaction that she had entered into. The learned Trial Court also did not appreciate that there was no evidence on the record to show that the contents of the sale agreements (Exh.D/1 and D/2) had been read over and explained to her.

24.Now, as regards Muhammad Shafa, it is an admitted position that he purchased the suit house from Ch. Mehmood during the pendency of the civil suit instituted by Safia Bibi. Muhammad Shafa had appeared as DW.4 and in his cross- examination, he admitted to have purchased the suit house during the pendency of the suit. However, he deposed when he purchased the suit house, he did not have knowledge of the pendency of the suit. In his cross-examination, Muammad Shafa deposed that he had not made any inquires as to whether the suit house was transferable and whether there was any litigation with respect to the suit house pending before any Court. Since Muhammad Shafa had purchased the suit house during the pendency of the suit, the principle of lis pendens would apply to such sale. Muhammad Shafa’s rights in the suit house would be subject to the final outcome of the suit. Knowledge of Muhammad Shafa as to the pendency of the suit is immaterial for the application of Section 52 of the Transfer of Property Act, 1882 to such sale. The said section embodies the doctrine of lis pendens. In the case of Muhammad Ashraf Butt Vs. Muhammad Asif Bhatti (PLD 2011 SC 905), it has been held inter alia that a transferee of the suit property, even the purchaser for value without notice of the pendency of the suit shall be bound by the result of the suit due to the doctrine of lis pendens. Furthermore, it was held that the foundation of the said doctrine is not rested upon notice, actual or constructive but on necessity and expediency i.e., the necessity of final adjudication. Therefore, it is my view that Muhammad Shafa as a pendente lite purchaser cannot set up a case independent from that of Ch. Mehmood and must sail or sink with the latter.

25.It is well settled that in case of variance in the judgments of the Trial Court and the Appellate Court, the judgment of the Appellate Court is to be preferred. Reference in this regard may be made to the judgments reported as Kaniz Bibi Vs. Muhammad Ashraf (2008 YLR 159), Muhammad Irshad Vs. Mst. Hanifa Begum (PLD 2007 SC AJK 20), Enayat Sons (Pvt.) Ltd. Vs. Government of Pakistan (2007 SCMR 969), Atta Muhammad Vs. Mst. Elahi Khanum (2004 CLC 262), Iftikhar Ahmad Vs. Hakam Bibi (2004 YLR 1034) and Fida Hussain Vs. Najma (PLD 2000 Quetta 46).

26.In view of the above, I do not find any merit in these writ petitions which are accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 11.04.2022.

(JUDGE)

Sultan*