Mst.Phull Bibi vs Ghazan Shah etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTBAD BENCH

JUDICIAL DEPARTMENT

CR. No. 206/2008.

JUDGMENT

Date of hearing......................30.1.2015................................

Petitioner. (Mst Phul Bibi) By Hafiz Iftikhar Ahmed Khan, Advocate.

Respondents:.(Ghazan Shah & others) By: Mr. Muhammad Yaqub, Advocate.

QALANDAR ALI KHAN .J. This revision petition by Mst Phul Bibi, petitioner, is directed against the judgment and decree dated 24.6.2008 of the learned Additional District-I, Haripur in appeal No. 18/13 of 2007 whereby the judgment and decree dated 27.1.2007 of the Civil Judge-I, Haripur dismissing the suit of the petitioner was upheld and the decree in the suit of respondent No. 3 bearing No. 30/1 was modified.

2.Facts of the case, briefly stated, are that the petitioner/plaintiff instituted suit for declaration etc challenging therein the validity of mutation No. 97 dated 09.7.1952 and subsequent transaction on the strength of the impugned mutation, wherein, respondents No. 1 & 2, Ghazan Shah and Akhtar Shah, were placed exparte while respondent No. 3, Safdar Shah, opted to contest the suit by filing his written statement. Respondent No. 3 also lodged a suit for declaration and perpetual injunction regarding the same property. Both the suit were consolidated by the learned trial court and consolidated issues were framed, whereon parties produced their respective evidence, and on conclusion of the trial, the learned court dismissed the suit of the petitioner/plaintiff and granted decree in favour of respondent No. 3, vide judgment dated 27.1.2007.

3.The petitioner impugned the judgment /decree, in appeal, but the learned Additional District Judge-I, Haripur dismissed the appeal while partially modifying the decree in favour of respondent No. 3, vide judgment and decree dated 24.6.21008. Aggrieved of the judgment and decree of the learned appellate court/ Additional District Judge-I, Haripur dated 24.6.2008, the petitioner preferred the instant revision petition, inter-alia, on the grounds that the judgments / decrees of both the lower courts were beyond the scope of law and justice hence not tenable; that both the learned lower forums weighed evidence of the parties in different scales and have seen the same evidence from different angles, therefore, the conclusion arrived was unjust and result of misreading and nonreading of the evidence requiring interference by this court; that the judgment of the trial court on issues No. 4 to 6 was wrong and evidence available on the file showed the

petitioner minor at the time of transaction, besides both the vendors were women and ‘parda nasheen’ ladies;

that both the learned lower forums illegally shifted the burden of proof regarding validity or otherwise of the transition to the petitioner, though beneficiaries from the illiterate ‘parda nasheen’ ladies were to prove the transaction as fair and just.

4.Arguments of learned counsel for the parties heard and record perused.

5.Learned counsel for the petitioner argued that in a sale transaction involving illiterate ‘parda nasheen’ ladies, onus would shift to the transferee to prove through independent positive evidence not only the transaction between the parties but also payment of sale consideration and transfer of possession thereunder. The learned counsel stressed that the impugned transaction was based on fraud, which vitiates even solemn transaction, and further

maintained the even concurrent findings of the courts below are subject to reversal when not supported by record or there is misreading of evidence resulting into miscarriage of justice. The learned counsel pointed out that the petitioner was minor at the time of impugned transaction, therefore, the transaction was void ab- initio for being unauthorized. The learned counsel further contended that the denial on the part of the respondents was vague and evasive, which is to be deemed to be no denial. In support of his arguments, learned counsel for the petitioner placed reliance on the judgments reported as 2006YLR-490 (Muhammad Yousaf and four others vs Mst Zainab Bibi), 2003 SCMR-286 Muhammad Bakhsh vs Elahi Bukhsh and others), PLD 1995 SC-314 (Inam Naqshband vs Haji Shaikh Ijaz Ahmed), PLD 1996 Lahore-483 (Sher Baz Khan and 73 others vs Mst Malkani Sahizadi Tiwana and two others), 2011 YLR-1789 (Lahore) (Mst Zeenat

Bibi vs Muhammad Younas and others), 1994 CLC- 173 (Karachi) (United Bank Ltd vs Ali Muhammad B.

Rajani) and 2001 SCMR-609 (Amirzada Khan and others vs Itbar Khan and others).

6.Learned counsel for the respondents, on the other hand, referred to the judgments reported as 2007 SCMR-1792 (Siraj Din and others vs Mst Kurshid Begum and others), 2008 SCMR-1425 (Ghulam Haider and others vs Wali Muhammad and others), 2001 CLC-810 (Peshawar) (Muhammad Haroon vs Mst Razia Begum and others), 2011 CLC-790 (Peshawar) (Muhammad Afzal vs Mst Bakhto and 8 others), and 2007 CLC 1629 (Northern Areas Chief Court) ( Muhammad Ali vs Hassan), and contended that whenever allegation of fraud is levelled in respect of a mutation, burden of proof would lie on the plaintiff alleging the suit mutation to be fraudulently attested and that suit for declaration lodged long after

the attestation of disputed mutation would be hopelessly time barred if no explanation for inordinate delay is furnished by the plaintiff, and further petitioners should have filed a suit within three years of her growing major.

7.Admittedly, the sale mutation No. 97 was attested on 19.7.1952, while suit for declaration with payer of perpetual injunction was lodged in respect thereof by the petitioner on 08.5.2000 i.e. after lapse of around 48 years. As such, suit was much beyond the expiry of limitation period prescribed for a suit for declaration. Assuming for the sake of arguments that the petitioner was minor at the time of attestation of the impugned mutation in the year 1952, on the basis of only 1940 recorded as her date of birth in her National Identity Card, in 2002, even then the petitioner was legally bound to challenge the sale transaction within the prescribed period after attaining majority, instead

of waiting for around a half century to do the same.

Moreover, in the impugned mutation, both the petitioners and her deceased mother namely Mst Muzaffar Jan have been shown as the vendors but Mst Muzaffar Jan never challenged the impugned mutation in her life time. In the revenue record, Ghazan Shah, vendee, deceased respondent No. 1, has continuously been shown as owner in possession of property in question, ever since, to the exclusion of the petitioner and her deceased mother, who never challenged continuous entries in the revenue record for decades together. One Yousaf Shah had been shown attesting witness as ‘Numbrdar’ of the impugned mutation, and the petitioner admitted in her statement before the court that the said Yousaf Shah was, indeed, ‘Numberdar’ of the village at the relevant time.

8.In view of the above referred overwhelming evidence in support of the impugned mutation and long

standing entries in the revenue record, the petitioner, undoubtedly, was obliged to prove her case through cogent evidence and discharge the onus of proving the element of fraud in the impugned sale transaction which took place around a half century ago. In regard to the mutation impugned by her, admittedly, much beyond the prescribed period of limitation, there was no other option with both the learned trial court as well as the appellate court to arrive at a different conclusion. Therefore, their findings on the issues framed in the suit are based on proper appreciation of the evidence and law applicable to the case, calling for no interference by this court in its revisional jurisdiction. As such, the revision petition is dismissed with costs.

Announced.

Dated: 30.1.2015 Parvez/**PS/ JUDGE