GHULAM QADIR Versus SAWI
By this revision petition the petitioners (defendants) Ghulam Qadir and Sultan have challenged the vires and validity of the judgment of the first appellate Court. The learned Court after the assessment/appraisement of the evidence so produced upset the findings of the trial Court and substituted its finding in place of the findings of the trial Court.
2. The brief facts of the case, as alleged by the respondent (plaintiff) in her plaint, which started the present litigation between the parties, are that she had exchanged her property measuring 3 Kanals 8 Marlas with the petitioners (defendants) in lieu of 2 Kanals of land and that in this respect Mutation No.1487' was attested in favour of the respondent (plaintiff) Mst. Sawi and Mutation No.1486 was attested in favour of the petitioners (defendants), that the petitioners, by practising fraud and in collusion/connivance with the Revenue Staff, got entered and attested these mutations as that of sale mutations, that this fact came to the knowledge of the respondent (plaintiff) 15/16 days prior to the institution of the present suit when the petitioners (defendants) started interfering with the property of the respondent (plaintiff) which she had obtained in exchange from the petitioners (defendants) vide mutation mentioned above. It has been further alleged in the plaint that this forced her to approach the Patwari and obtain Fard Jamabandis. It was then that it dawned upon her that instead of exchange mutations, Mutations Nos.1486 and 1487 were attested as sale mutations. She further stated that the petitioners (defendants) were accordingly approached with the request to get the mutations corrected but in vain and, therefore, she instituted the present suit for declaration to the effect that the mutations, in question, were in fact that of exchange and not that of sale and that she be granted a decree for perpetual injunction restraining the petitioners (defendants) from contending that the mutations were that of sale. In the alternative she prayed that a decree for the cancellation of these mutations be granted to her and that the possession of the land, given by her to the petitioners (defendants), be restored.
3. The petitioners (defendants) contested the suit on variety of grounds legal as well as factual which gave rise to as many as 10 issues which are to the following effect:‑‑‑
(1) Whether plaintiff has a cause of action?
(2) Whether plaintiff is estopped to sue the defendants?
(3) Whether suit is incompetent in its preset form?
(4) Whether suit is not maintainable due to negative declaration?
(5) Whether suit is hit by Order 2, Rule 2, C.P.C.?
(6) Whether suit is bad for non‑joinder of necessary parties?
(7) Whether, plaintiff has got the suit area by way of exchange from defendants 1 and 2 vide Mutations Nos.1486 and 1487 and the entry of sale in these mutations is wrong, illegal and ineffective on the rights of plaintiff?
(8) Whether this suit has been instituted as a counterblast to the pre emption suit against the plaintiff?
(9) Whether plaintiff is entitled to the decree for declaration and permanent injunction?
(10) Whether in the alternative plaintiff is entitled to the possession of the suit area?
(11) Relief.
4. The Naib Office Kanungo, Haripur (P.W.1), Mahboob Hassan Patwari Halqa Pharaharri (P.W.2) and Muhammad Ishaque Special Attorney of the plaintiff (P.W.3) were examined as plaintiffs witnesses to prove the case of the respondent (plaintiff). On the other hand only petitioner No.2 (defendant No.2) Sultan appeared as a defence witness on behalf of the petitioners (defendants).
5. After hearing the learned counsel for the parties the learned trial Court vide its judgment dated 3‑9‑1989 dismissed the suit of the respondent (plaintiff) leaving the parties to bear their own costs.
6. Mst. Sawi not contented with the findings of the learned trial Court filed an appeal before the. District Judge, Haripur, who entrusted the same to Additional District Judge (II), Haripur (Mr. Miftah‑ud‑Din Khan) for disposal. Additional District Judge‑II, vide his judgment dated 8‑11‑1990 accepted the appeal, set aside the impugned judgment and decree of the learned trial Judge and granted a decree, as prayed for, to the respondent (plaintiff) regarding the suit property, fully detailed in the heading of the plaint. Hence this revision petition by the petitioners (defendants).
7. I have heard Mr. Saleh Mahmood Awan, Advocate learned counsel for the petitioners (defendants) and Syed Mahboob Shah, Advocate learned counsel for the respondent (plaintiff) and have also perused the record of the case.
8. The learned counsel for the respondent, at the very outset, submitted that first of all it should be d6termined as to whether the appraisement of the evidence of the first appellate Court and substituting its own assessment of the evidence for that of the trial Court is a revisable order under section 115, C.P.C. he stated that provisions of section 115, C.P.C. are very clear and are to the following effect:‑‑‑
"115. Revision.‑‑‑(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑‑‑
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity the high Court may make such order in the case as it thinks fit:
(Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court).
(2)---------------------
(3) ---------------------
9. The counsel further stated that the first appellate Court has neither exercised a jurisdiction not vested in it by law nor has failed to exercise a jurisdiction so vested in it and that it has .not acted in the exercise of its jurisdiction illegally or with material irregularity and, therefore, this revision petition was not at all competent. He contended that to bring the case under clause (c) of section 115, C.P.C. it must be proved that the Court had acted "illegally" i.e., in breach of some provision of law or with "material‑irregularity" i.e., by committing some error of procedure in the course of the trial and that the question of appraisement of evidence does not come within .the ambit "illegality" or "material irregularity". According to him a decision arrived at in the exercise of jurisdiction which may be erroneous in law or in fact is not a ground for revision. In support of his contention he placed reliance on a case Maqsood Ahmad and another v. Muhammad Aslam Muhammad Yusuf reported in PLD 1966 (W.P.) Pesh. 151.
10. I do not agree with the contention of the learned counsel for the respondent (plaintiff) because it was held in case Muhammad Bakhsh and 4 others v. Province of Punjab through District Collector, Multan (1994 SCMR 1836 citation `B') as under:‑‑‑----
"(b) Civil Procedure Code (V of 1908)----
‑‑‑S.115‑‑Revision‑‑Concurrent findings of facts by two Courts below‑‑High Court, in the exercise of its revisional jurisdiction could legally set at naught the concurrent finding of facts of two Courts below if it was satisfied that the finding was based on misreading or non‑reading of evidence [1838]B."
11. I have, therefore, no doubt in my mind that this Court has the jurisdiction to satisfy itself as to whether or not the findings of the learned first appellate Court were based on misreading or non‑reading of evidence. Hence I have decided to go through the evidence produced by the parties in support of their respective claims.
12. It is in the evidence of Naib Office Qanungo, Haripur (P.W.1) that on the back side of Mutation No.1486 (Exh.P.W.1/1) the statement of respondent (plaintiff) was recorded by the Girdawar Circle as a Local Commissioner in the presence of Muhammad Aslam, the son of the respondent (plaintiff) and the Lamberdar of the village, Ali Asghar Khan. Mst. Sawi had also thumb impressed her statement recorded by the said Girdawar Circle which were duly witnessed by her son Muhammad Aslam (who had signed his name in English) and Ali Asghar Khan Lamberdai of the village on 11‑1‑1987. Mutation No.1487 copy Exh.P.W.l/2 was presented before the Revenue Officer in "Jalsa‑e‑Aam" on 8‑1‑1987 wherein the Revenue Officer passed the orders to the following effect:‑‑‑
13. It may be stated here with advantage that the petitioners (respondents) were identified before the Revenue Officer not only by Ali Asghar Khan Lamberdar of the village but Muhammad Aslam son of Ali Bahadur, son of the respondent (plaintiff). Both these mutations i.e. Nos.1486 (Exh.P.W.l/1) and 1487 (Exh.P.W.l/2) were attested on 11‑3‑1987 as sale mutations. It is intriguing that the respondent (plaintiff) did not choose to enter the witness‑box and to state on oath in support of her assertions, as contained in the plaint. Instead her attorney, Muhammad Ishaque, who also happens to be her nephew, appeared as P.W.3 and stated that the respondent (plaintiff) had given away 3 Kanals 8 Marlas of land in exchange and had received 2 Kanals from them in exchange, that these mutations were attested as sale mutations because of the collusion of the petitioners (defendants) 1 and 2 with the Revenue Staff. He stated that no money had passed hands and that the price/value of the land in the said Mauza ranged from Rs.10,000 per Kanal to Rs.40,000 per Kanal. In his examination‑in‑chief the attorney of the plaintiff stated that these mutations were got entered by the petitioners (defendants) and the son of the respondent (plaintiff) and that the respondent (plaintiff) got the knowledge about the sale mutation later on. When cross examined he admitted that Muhammad Aslam son pf Ali Bahadur is the son of the plaintiff (respondent) and that the plaintiff had thumb‑impressed the mutation, in question, in his presence. He admitted that one Sardar pre empted the transaction of sale effected vide Mutation No.1487 attested in favour of the respondent (plaintiff) Mst. Sawi. He also admitted that .the present suit was filed by the respondent (plaintiff) after the institution of the said pre‑emption suit. He admitted that he was not present at the time of attestation of the impugned mutation but stated that Aslam (son of the plaintiff) and Ali Asghar Khan (Lumberdar) were present at that time.
14. There is no substance or ring of truth in the contention of the respondent (plaintiff) that the mutations in question were in fact that of exchange. It was for this reason that she did not appear in the Court as her own witness and to stand the test of cross‑exams nation by the other side. Besides neither Aslam (her son) not Ali Asghar (Lumherdar), in whose presence she had thumb‑impressed Mutation No.1486 (copy Exh.P.W.l/1), were produced as P.Ws. The presumption, therefore would be that if they had appeared as witnesses they would not have supported the case of the plaintiff (respondent). The fact that Mutation No‑1487 (copy Exh-P-W.1/2) attested in favour of Mst. Saws respondent/plaintiff also bears the signature of Muhammad Aslam son of the plaintiff and Ali Asghar Khan, Lumberdar cannot be lost sight of.
15. On the other hand petitioner No.2 Sultan appeared as D.W.1 and stated in his, examination‑in‑chief. that the transaction in question was that of sale. That the impugned mutation was got entered by Muhammad Aslam son of the respondent (plaintiff). He categorically stated that the petitioners (defendants) had sold the land mentioned in mutation in dispute for a sum of Rs.500. According to him the statement of plaintiff/respondent was got recorded by a Commission at her house in the presence of her son, Muhammad Aslam, and Ali Asghar Khan Lumberdar. He refuted the suggestion, in his cross‑examination, that mutations, copies Exh.P.W.l/1 and Exh.P.W.1/2, were in fact shat of exchange and that he and his brother had, in collusion with the revenue staff, got the same entered and attested as sale mutations. He however, admitted that the plaintiff was an illiterate, Pardahnashin lady.
16. After discussing the evidence produced by the parties there is no denying of the fact that' although the respondent/plaintiff was a Pardahnashin/illiterate lady but she had actively participated in the transaction and had also thumb‑impressed Mutation No.1486 in the presence of her son, who had signed on both the mutations in English, alongwith the Lumberdar of the village. Therefore, in my view, she had not suffered any handicap. Since it is always for the plaintiff to prove his/her case, therefore, it was for the respondent (plaintiff) to have proved fraud/collusion as alleged. Since sly, has failed to do so therefore the learned trial Court had very rightly not believed the allegation regarding fraud and collusion and had dismissed her suit vide its judgment dated 3‑9‑19$9. After going through the record of the case i.e., the statements of the P.Ws./D.Ws. and the documents produced I am of the view that these documents support the version of the petitioners/defendants which were kept out of consideration by the learned Additional District Judge (II) and that the respondent (plaintiff) did not suffer in the circumstances of this case, from tiny disability being a Pardahnashin lady. The findings of the learned Additional District Judge are based on misreading and non‑reading of the material evidence.
17. Consequently this revision petition is accepted, the impugned judgment and decree of the learned Additional District Judge (II), Haripur is set aside and that of the Civil Judge restored with the result that the suit of the plaintiff‑respondent stands dismissed with costs.
AA./1648/P Revision accepted.