MUHAMMAD HAROON Versus RAZIA BEGUM

Muhammad Haroon, the petitioner instituted Suit No.64/1 in the 0Court of learned Civil Judge, Mansehra for seeking declaration to the effect that he is owner of property in dispute with his land measuring 10 Kanals, 15 Marlas comprising Khata Nos.588/111, 1112 Khasra Nos.5839/2911, 5841/2911 situated at Mauza Mansehra and Mutation No. 16094 attested on 28‑4‑1973 is fraudulent, collusive and without consideration, thus void, ab initio and ineffective against the rights of petitioner/plaintiff. The said suit was resisted by the respondents/defendants. The learned trial Court after framing issues, recording pro and contra evidence of the parties, dismissed the suit of the petitioner/plaintiff vide judgment and decree, dated 8‑1‑1992. The petitioner being aggrieved by the judgment and decree of the learned Civil Judge, dated 8‑1‑1992 preferred an appeal in the Court of learned District Judge, Mansehra which was entrusted to learned Additional District Judge for disposal. The learned Additional District Judge, Mansehra dismissed the appeal of the petitioner vide judgment and decree, dated 20‑2‑1996. The petitioner has now filed Revision Petition No.155 of 1994 in hand challenging the judgments and decrees passed by both the Courts below.

2. Mr. Ejaz Afzal Khan, Advocate, the learned counsel representing the petitioner argued that the judgments and decrees of the learned Courts below are based on misreading and non‑reading of evidence. There was nothing on record to show that the impugned sale was effected at the instance of petitioner/plaintiff and that he was paid the sale consideration. At the relevant time when the alleged sale took place the petitioner/plaintiff was minor, as such he could not have entered into any sale transaction. The petitioner in order to prove that he was minor at the relevant time had produced school leaving certificate (Exh.P.W.1/3) showing that the petitioner was minor at the time when the impugned transaction took place but this important piece of evidence was discarded by both the Courts below without recording cogent and convincing reason. It was also argued that the impugned transaction was collusive, fraudulent and without consideration but all these facts were ignored by the Courts below.

3. On the other hand, Syed Sajjad Hussain Shah, Advocate, the learned counsel representing the respondents argued that both the Courts below have properly appreciated the evidence and material available on record. Neither the petitioner/plaintiff was minor at the relevant time of sale nor any fraud has been played upon him. He was major in those days and had received the sale consideration himself through his brothers. In order to find out as to whether the petitioner was major or minor he was examined by the doctor who submitted his report Exh.C.W.l/1 which was not objected to by the petitioner/plaintiff. The certificate is more authentic than the school leaving certificate. He placed reliance on various judgments of superior Courts in this regard.

4. It was further argued that the suit filed by the plaintiff was hopelessly barred by time. The sale took place in the year 1973 and Mutation No. 16094 was attested on 28‑4-1973 but the suit in hand was filed by the petitioner/plaintiff on 24‑7‑1983, i.e., after more than 10 years. The respondents have placed sufficient evidence and material on record to show that the property was sold by the petitioner with his sweet‑will, he was not minor at that time, had received the sale consideration himself and through his brothers and the suit of the petitioner/plaintiff was barred by time. There was no jurisdictional error or defect, hence the concurrent findings of fact be not disturbed and the revision petition in hand be dismissed with costs.

5. I have heard the learned counsel for the parties and perused the record.

6. In order to prove his case the petitioner/plaintiff examined Abdul Sattar, Teacher Incharge Government High School, Mansehra as P.W.1 who placed on record copies of Admission and Withdrawal Register, copies whereof were produced as EXhS.P.W.I/1 and 1/2, school leaving certificate issued by the Headmaster, Government High School, Mansehra was on record as Exh. P. W .1 /3 .

7. Muhammad Riaz, Patwari Halqa was examined as P. W.2. He placed on record copy of Fard Jamabandi for the year 1965‑66 Exh. P. W .2/ 1, Khasra Girdawari from Kharif 1968 to 1993 Exh.P.W.2/2. In cross-examination he admitted that Mutation No.16094 was entered on 26‑3‑1973 and attested on 28‑4‑1973 in favour of defendants/respondents.

8. Wali Muhammad, Saddar Office Kanungo was examined as P.W.3 who placed on record Goshwara of Jamabandis for the years 1940‑41 and 1946‑47 Exhs.P.W.3/1 and 3/2. He also placed on record Jamabandi for the years 1904‑05 to 1938‑39 Exh.P.W.3/D‑1.

9. Nisar Ahmad, Naib Office Kanungo, Mansehra P.W.4 produced Mutation No. 16094 attested on 28‑4‑1973 and placed copy of the same as Exh.P. W.4/ 1.

10. Ali Mardan son of Akbar Ali was examined as P.W.5. He stated that he had purchased some property from Ayub and his uncle Faqir and in connection with the attestation of mutations in his favour he was present in Jalsa‑e‑Aam. Bashir, Sadiq and Haroon sons of Faqir appeared before the Revenue Officer in connection with the attestation of mutation. Revenue Officer pointed out that Haroon plaintiff appears to be minor. The mutations of his brothers Bashir and Sadiq were attested but thereafter he showed his ignorance about the rest of the events. In cross‑examination he admitted that the plaintiff had appeared in person before the Revenue Officer and he was not aware as to whether any certificate in respect of his age was produced to Revenue Officer or not.

11. Muhammad Ayub was examined as P.W.6. He is attorney of plaintiff/petitioner. His power of attorney was placed on record as Exh.P.W.6/1. He stated that the plaintiff was residing in Saudi Arabia in order to earn his livelihood. Before going to Saudia he used to work at Karachi. He had left for Karachi in young age. For the first time in the year 1973 the plaintiff came to firs village Mansehra, verified the revenue papers from Patwari and came to know that defendants got his property transferred in their names. He did not sell the property to the defendants and had not received any sale consideration: from them. He also did not appear before the Revenue Officer Circle. He showed his ignorance regarding the attestation of Mutation Exh.P.W.4/1. Bashir, the elder brother of plaintiff in those days was serving with defendants. The defendants purchased property from him so they also got the property of plaintiff transferred in their names fraudulently. The plaintiff/petitioner was minor having born in 1956.

12. Dr. Muhammad Shah. Agency Surgeon, Malakand at Batkhela was examined as C. W. I He was incharge of Civil Hospital; Mansehra in March, 1973 and had examined X‑ray Exposer Nos.502 to 504, dated 19‑3‑1973 in respect of Muhammad Haroon son of Faqir Muhammad. .According to X‑ray finding, in his opinion his age was 19 to 20 years. He issued certificate Exh.P.W.3/1 which correctly bore his signatures.

13. In rebuttal Abdul Sattar was examined as D.W.1, who produced the admission forms Exh.D.W.I/1, register Dakhal‑Kharaj for the years 1948 to 1960 from Serial Nos. l/2178 to 5068; at Serial No.4928 there is an entry of admission of Muhammad Haroon. The photostat copy was placed as Exh.D.W.I/2. He also .produced attendance register of 1st Class of Government Primary School, Mansehra, at Serial No.16 the name of Muhammad Haroon was entered. Photo copy was placed as Exh.D.W.l/3. Register pertaining to the month of May was produced as Exh.D.W.l/4. Register Dakhal‑Kharaj of C.M.S., Mansehra was produced and copy of the relevant page was exhibited as Exh.D.W.l/5. Admission form of Muhammad Haroon was also produced as Exh:D.W.l/6.

14. Aurangzeb, Advocate was examined as Exh.D.W.2. He placed on record Exh.D.W.2/1, photostat of affidavit attested by him on 7‑8‑1970. Anjum Tauqeer, Accountant, Muslim Commercial Bank was examined as D.W.3. He placed on record copy of the statement of account‑of Muhammad Hussain Lughmani, Advocate, Mansehra (Account No. 122) as D.W.3/2. He also placed on record the copies of the rules under which the old record is destroyed. The said rules were placed on record as Exh.D.W.3/2.

15. Muhammad Hussain Lughmani, Advocate appeared as D.W.4. He stated in detail about the sale, payment of sale consideration and the background, on the basis of which the suit was filed by the plaintiff at the instance of Ayub as attorney.

16. So far the first argument of the learned counsel for the petitioner relates that at the time of alleged sale the petitioner/plaintiff was minor and no sale consideration was paid to him. This argument has no force at all. In order to prove that the petitioner was minor at the time of alleged sale the petitioner/plaintiff examined Abdul Sattar, Teacher Incharge Certificates and Admissions, G.H.S., Mansehra as P. W.1 who placed on record copies of the admission and withdrawal register EXhS.P.W.I/1 and 1/2 and school leaving certificate issued by Headmaster Exh.P.W.l/3. Exh.P.W.I/3 shows that the date of birth of Muhammad Haroon son of Faqir Muhammad as per school record is 5‑5‑1956. In rebuttal, the respondents/defendants produced Abdul Sattar, A.T.G.P.S. Muftiabad who placed on record documents Exhs.D.W.l/1 to 1/6, as per Exh.D.W.l/2 and Exh.D.W.I/6 the date of birth of the petitioner has been shown as 28‑4‑1956.

Dr. Muhammad Shah was examined as C. W.1. He had examined the X‑ray Exposer Nos.502 to 504, dated 19‑3-1973 in respect of Muhammad Haroon. According to X‑ray report in his opinion the age of plaintiff was 19/20 years. Certificate issued by him was placed on record as Exh.P.W.3/1. The two school leaving certificates show different dates of birth of the petitioner/plaintiff, which create sufficient doubt that the correct date of birth of the petitioner/plaintiff was not mentioned in school record al the time of his admission. The entries in the school leaving certificate were not conclusive proof of the age of a person. Proper age of a person‑could be proved by opinion of Radiologist. In a case Haseeb v. Election Authority, Sindh at Karachi and 3 others PLD 1986 Kar. 179 it was held:‑‑

"As regards the primary school certificate it can be stated that the date of birth given therein is not conclusive for the purpose of disqualifying from membership of elected body on the ground of age. If any authority is needed reference be had to Muhammad Nawaz Khan v. Collector, Gujranwala and another PLD 1960 (W.P.) Lah. 1123. In this case it was observed by Niami, C.J.‑‑

' It is now widely known that parents give ‑a younger age to the school boys than they actually possess in order that it should help them in Government service. Reference may also be made to AIR 1941 Pesh. 38' . "

Likewise in case Chaudhry Muhammad Hussain v. Muhammad Nawaz alias Dilawar Khan and another PLD 1969 Election Tribunal 111, it was held:‑‑

"In the present case as the respondent's father was anxious for getting the respondent admitted in the St. Mary Covent School Multan, and as the respondent would not have been admitted if his correct age had been disclosed to the school authorities, it is obvious that the date of birth of the respondent, as recorded in the application form (Exh.P.1) was intentionally incorrectly stated and, therefore, much reliance cannot be placed on that piece of evidence."

Similarly, in Board of Intermediate and Secondary Education, Lahore v. Sultan Khan NLR 1980 AC 339 it was held that erroneous entry of date of birth in school register at the time of admission to student to a school does not override entry in the register of birth. Similarly, in case Zulfiqar Ali v. Qazi Kamal Hussain and 3 others 1995 CLC 1383 it was held:‑‑

"Entries about date of birth of person though admissible in evidence under Article 49, Qanun‑e‑Shahadat, 1984, yet these entries would not carry high probative value."

17. By now it is settled law that the age of a person can be proved by the opinion of the Radiologist and the evidence of Radiologist is to be A preferred over the school certificate. In Haseeb v. Election Authorities, Sindh PLD 1986 Kar. 179 it was held:

"As against the aforesaid documents respondent No.l has relied on report of Radiologist. No exception can be taken to it as the age could be proved by opinion of Radiologist."

Likewise in case Iftikhar v. The State PLD 1972 pesh. page 27 it was held:‑‑

"For the proof of age, the best evidence is that of Radiologist and preference cannot be given to school certificate over evidence X‑ray age."

In the case in hand, the respondents have examined Doctor Muhammad Shah, C.W.1 who has given his opinion Exh.P.W.3/1 that at the relevant time the petitioner/plaintiff was 19/20 years old. The certificate issued by Dr. Exh.P.W.3/1 has not at all been challenged by the petitioner/plaintiff till date. There .is another proof available on record which shows that the petitioner/plaintiff was not minor at the time of alleged sale because prior to the said sale he had mortgaged his share of property in favour of Haq Nawaz who was neighbourer of respondents. Mr. Muhammad Hussain Lughmani, Advocate (D.W.1) stated that he .paid the mortgage consideration to Haq Nawaz and obtained that document regarding the said mortgage. Had the petitioner been minor he could not have mortgaged his share in property to Haq Nawaz. This fact also proves that he was not minor at the time of alleged sale. So far as question of payment of sale consideration is concerned, it is in evidence that the petitioner/plaintiff received partial payment in cash from the respondents/defendants and the receipt of the amount was paid to him through his brothers, namely; Khan Muhammad, Aslam Khan and Bashir, through Cheque No.792270, dated 30‑4‑1973. In order to prove that the said amount was paid through the abovementioned cheque Tauqeer Anjum, Accountant, M.C.B., Mansehra was examined as D. W.3 who placed on record copy of ledger of Account No. 122 in the name of Muhammad Hussain Lughmani, Advocate. By this way the payment of sale consideration to the petitioner/plaintiff was fully proved.

18. The argument of the learned counsel for the petitioner/plaintiff that fraud was played upon the petitioner and his property was got mutated in the names of respondents/defendants fraudulently also has no force, at all. The petitioner/plaintiff has not specifically pleaded in his pleadings as to how fraud was played upon him. Vague and general allegations, however strong may be, the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. In Ghulam Sarwar v. Noor Begum and others PLD 1977 SC 75 it was held:‑‑

"As a rule the pleadings must contain material facts on which a party relies for his claim or defence. In particular, Rule 4 of Order VI of the Civil Procedure Code lays down that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars (that dates and times if necessary) shall be stated in the pleading."

Likewise in Muhammad Azeem v. Pakistan Employees Cooperative Housing Society Ltd. PLD 1973 note 84 at p.119 it was held:‑‑

"Fraud to be specifically pleaded and particulars with dates and times (when necessary) to be stated in pleadings. Bare allegation without particulars, do not constitute adequate or sufficient pleadings."

In case in hand, fraud or misrepresentation has not been specifically pleaded by the petitioner/plaintiff in his plaint. In paragraph No.2 of the plaint it has been stated:‑‑

In para. "Jeem " of the said paragraph it was stated:‑‑

19. The attorney of petitioner/plaintiff also stated that the petitioner did not appear before the Revenue Office at the time when the mutation was entered and attested but his own witness Ali Mardan son of Akbar. Ali who was. examined as P.W.5 stated that he was present in Jalsa‑e‑Aam in connection with attestation of mutation in his favour when Bashir, Sadiq and Haroon (plaintiff) appeared before the Revenue Officer in connection with attestation with mutation when all the three brothers appeared before the Revenue Officer, he stated that Haroon appears to be minor. Mutation in respect of properties of Bashir and Sadiq were attested but mutation of' Haroon was not attested. The statement of Ali Mardan not only negates the version stated in the plaint that the plaintiff/petitioner did not appear before the Revenue Officer in connection with attestation of his mutation but it also contradicts the statement of Muhammad Ayub, (P. W.6) attorney of the plaintiff. There is ample evidence available on record that the plaintiff/petitioner appeared before the Revenue Officer alongwith his two brothers. The Revenue Officer raised objection about his majority, hence he was constrained to appear before Dr. Muhammad Shah (C.W.1) who after going through the X‑ray Reports opined that he was 19 to 20 years of age. The certificate issued by him Exh.P.W.3/1 was produced before the Revenue Officer who then attested the mutation in favour of respondents/ defendants. So, on the face of record no fraud was played upon the petitioner/plaintiff.

20. So far as the argument of the learned counsel for the respondents that the suit of the plaintiff was hopelessly barred by time is concerned, this argument has force in it. The Mutation No. 16094 was attested on 28‑4‑1973. The suit in hand was fled on 24‑7‑1983, i.e. after 10 years of the attestation of the mutation. The petitioner/plaintiff had the knowledge of attestation of mutation in favour of respondents/defendants but he did not bother to challent the same. It is in the statement of Muhammad Ayub P. W.6 the attorney of :he petitioner/plaintiff that plaintiff/petitioner for the first time in the year 1973 came to his village Mansehra, verified the revenue documents and came to know that his property has been mutated in the names of respondents. Relevant portion of his statement is reproduced hereunder:---‑

The above statement indicates that the plaintiff/petitioner had the knowledge of the said mutation in the year, 1973 but` he kept mum and did not file any suit. The period of limitation prescribed under Article 120 of the Limitation Act for filing declaratory suit is 6 years but the suit in hand as mentioned above was filed after period of 10 years. No explanation worth the name for the delay has been given by the plaintiff/petitioner. In this respect, reliance is C placed on:‑‑

(1) Noor Bibi and 6 others v. Fazal Hussain' and others 1998 SCMR 230; and

(2) Shah Muhammad and others v. Central Government and others 19981C SCMR 341.

The present suit is, therefore, hopelessly time‑barred.

21. The petitioner/plaintiff has miserably failed to establish his case.

The allegations of fraud are not only vague and illusory but baseless also. Suit of the plaintiff was hopelessly barred by time, therefore, the learned trial Court rightly dismissed his suit and the learned District Judge was also justified in dismissing his appeal. There is concurrent finding of two learned Courts below on the question of fact against the petitioner: The petitioner has failed to point out a single jurisdictional error or evidence which was either overlooked or misread or misinterpreted, therefore, I find no reasons to interfere with the concurrent finding of the learned Courts below on the strength of following judgments:

(1) Noor Bibi and 6 others v: Fazal Hussain and others .1998 SCIVIR 230,

(2) Khanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53,

(3) Shahzad Mir and others v. Provincial Government and others PLD 1999 Pesh. 57,

(4) Fida Muhammad and 3 others v. All residents of Rarriboar Valley 1997 SCMR 846,

(5) Sheikh Muhammad Bashir. Ali v. Ghularn Muhiyddin 1996 SCMR 813.

(6) Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291;

(7) Mst. Husna Bibi and others v. Niaz Gul and others 1984 SCMR 203,

(8) Gul Zar Khan v. Mat. Razia Begum 1982 SCMR 843,

(9) Waheed Gul v. Mst. Saida Jan 1998 MLD 3,

(10) Taj Muhammad v. Mst. Zaitooney and others PLD 1995 Pesh. 135, and

(11) Haji Khan Baz Khan v. Abdul Rahim PLD 1993 Pesh. 36.

22. The net result of the above discussion is that the petition in hand (Civil Revision No. 155 of 1994) is dismissed with no orders as to costs.

Q.M.H./M.A.K./141/P Revision dismissed.