ABDUL KADIR Versus ABDUL KARIM

1. This civil revision application is filed by the applicants/defendants against the judgment and decree dated 30th November; 1983 passed by the learned IIIrd Additional, District Judge,' Sukkur in Civil Appeal No.26/1975.

2. Respondent No.1 instituted civil suit No.3/1v72 against deceased Abdul Sattar (predecessor‑in‑interest of the present petitioners) and Mst. Habiban (respondent No.2). In the above suit respondent No.1 claimed relief of declaration, cancellation of two registered sale‑deeds, dated 4‑1‑1966 and 17‑4‑1J65, permanent injunction, possession and mesne profits in respect of agricultural lands measuring about 13‑20 acres situated in Deh Bullo, tapo Nandapur, Taluka Panoakil comprising Survey Nos. 20, 22 (half) 125, 126, 190, 209, 210, and 211 and measuring about 23‑7 acres situated in Deh Tarir, taluka Panoakil comprising Survey numbers 37/1, 40/2‑17, 43/2‑1, 92/2, 96/29, 95/1‑31, 100/1, 220/3, 319/1‑31, 235/1‑26, 233/1‑14, 231/1‑2 and 232/1‑11. It was alleged in the suit by .respondent No.1 that his father Nek Muhammad Bullo died on 22‑1‑1966 leaving behind respondent No.1, the deceased Abdul Sattar and Mst. Habiban (respondent No.2) as the only legal heirs who inherited all the properties of deceased Nek Muhammad Bullo including the agricultural lands mentioned above. It was alleged that the deceased Abdul Sattar by practising fraud and misrepresentation managed to get two sale‑deeds dated 4‑1‑1966 and 17‑4‑1965 registered in respect of the above lands before the District Registrar Sukkur and Sub‑Registrar, Ghotki respectively. The particulars of fraud and misrepresentation alleged by respondent No.l against deceased Abdul Sattar were mentioned in paragraph 3 (a) to 3 (j) of the plaint which read as follows.‑‑

(a) That the above property being the ancestral one, could not be sold even by Nek Muhammad father of the parties. The defendant by trick has got the sale‑deeds registered by producing bogus persons who personated the executants Nek Muhammad the easily defeat the genuine right of the plaintiff.

(b) That the defendant managed to get the bogus executants posting for Nek Muhammad identified before the Registration authorities by one Khawand Bux Sonol Haji Fateh Muhammad resident of Kot Sher Muhammad by obliging him (Khawand Bux) with the benefits of our joint ancestral lands in Deh Sirai, Tapa Nandapur which entire land is at present being enjoyed and benefited by said Khawand Bux and Muhammad Hassan Khan Member and Chairman, respectively Union Council Bhelar, who are also cousins amongst each other.

(c) That above‑named Muhammad Hassan Khan is Sardar of the community of Bullas and there is an old enmity of the plaintiff with him due to which he also prepared his cousin Khawand Bux and assisted in this fraudulent execution of sale‑deeds.

(d) That the sale‑deeds are bogus, baseless, fictitious without consideration simply to usurp the rights and interests of the plaintiff in the said lands which are joint inherited properties and the plaintiff is also entitled to enjoy his due share in it.

(f) That the defendant disclosed about the said sale‑deeds about one week after the demise of Nek Muhammad father of the parties herein and not before which also reveals that there was fraudulent motives in this transactrun and behind the said deeds.

(g) That plaintiffs mother Mst. Bhan filed a suit of claim of Haq Mahar in respect of S.Nos.210 and 211 Deh Bulo Tapa Nandapur, against late Nek Muhammad during his lifetime in 1960 which is still pending decision in the Court. It is not understood how these survey numbers could be sold out during the pendency of such a Court case by late Nek Muhammad. All this shows that the sale‑deeds are quite, bogus and deliberately prepared as such by the defendant in order to cause loss to and deprive the plaintiff from his legal and the hereditary rights in the said lands.

(h) That the property in question is also shared by as inherited Mst. Habiban still alive besides those of the parties in this suit. As such late Nek Muhammad could not dispose off the same independently.

(i) That the sale‑deeds in question being fraudulently registered at the instance of the defendant are not void and are in operative and not binding on the plaintiff, who is co‑sharer in the lands in question.

(j) That the defendant with a dishonest motive in order to cause wrongful loss to the plaintiff and to make wrongful gain has got the sale‑deeds executed and registered by trick and by fraud to deprive the plaintiff from his bona fide rights."

3. The suit was resisted by deceased Abdul Sattar who claimed that the two sale‑deeds referred to above were voluntarily executed by his father late Nek Muhammad Bullo in his favour against valid consideration. The trial Court on the basis of the controversy between the parties framed the following issues in the suit:‑

(1) Whether the defendant deceitfully secretly and tactfully got the two fictitious and fabricated documents (sale‑deeds) executed?

(2) Whether the fictitious sale‑deeds were suppressed by the defendant in lifetime of Nek Muhammad and the same are liable to be cancelled?

(3) Whether Nek Muhammad (father of the parties) as competent to dispose of the ancestral property and whether the defendant got the sale‑deeds registered by producing a bogus person as Nek Muhammad to defeat the genuine claim and right of the plaintiff?

(4) Whether tree property in suit is inheritable by the third wife (Mat. Habiban) of late Nek Muhammad?

(5) Whether the sale‑deeds in question are not binding and inoperative on plaintiff?

(6) Whether the plaintiff is entitled to mesne profits and if so to what extent?

(7) What should the decree be? .

4. After recording evidence of the parties and hearing them the Trial Court decided all the issues against respondent No.1 and dismissed the suit by judgment dated 31‑3‑1975. Against the judgment and decree of the trial Court respondent No.1 filed First Civil Appeal No.26/75 which was allowed by the III Additional District Judge, Sukkur, who reversed the judgment of the trial Court and decreed the suit of respondent No. l/plaintiff. The present petitioner who succeeded deceased Abdul Sattar on his demise challenged the judgment and decree of the first appellate Court in Civil IInd Appeal No.2 of 1979 before this Court. A learned Single Judge of this Court by judgment dated 3‑5‑1983 set aside the judgment and decree of Ist appellate Court and remanded the case back to the first appellate Court for a fresh decision with direction to allow the parties to lead'further evidence on the .following two issues framed by the learned Judge:‑

(1) Whether deceased Abdul Sattar had the means to pay the sale consideration amounting to Rs.17,000?

(2) Whether the consideration shown in the document was adequate consideration?"

5. After remand of the case the learned IIIrd Additional District Judge recorded further evidence of parties but maintained the earlier judgment and decree passed by his predecessor. The petitioners have now filed this revision application challenging the judgment ana decree passed by the IIIrd Additional District Judge, Sukkur, after remand of the case. I have heard Mr. Abdul Fatah Malik, the learned counsel for the petitioners and respondent No.1 who appeared in person and filed his written submissions. Respondent No.2 remained absent throughout.

6. Mr. Abdul Fattah Malik, the learned counsel for the petitioners contended that the reversal of the judgment of trial Court by the first appellate Court is based on complete misreading of evidence and misconception of law. It is further contended by the learned counsel that the reversal of the judgment of trial Court by the first appellate Court is based on the pleas which were neither raised by respondent No.1/plaintiff in his suit nor these were covered by the issues framed by the trial Court and there was no evidence on record to support the conclusions of learned first appellate Court on these pleas. With regard to additional issues framed by the 2nd appellate Court the learned counsel contended that the evidence led by respondent No.1/plaintiff after remand of the case before the 1st appellate Court was not sufficient to prove the same and as such the findings of first appellate Court thereon cannot be sustained in law. The respondent No.1 supported the judgment and decree of first appellate Court and further stated in his written arguments that as a result of remand order of this Court in IInd Appeal No.2/1979 the decision of first appellate Court on all the issues framed in the suit attained finality and therefore, the same cannot be agitated now by the petitioners in this revision application. On additional issues respondent No. l contended that the heirs of deceased Abdul Sattar failed to establish that the deceased Abdul Sattar was possessed of means to pay the sale consideration of the land and they also failed to prove that the consideration allegedly paid by late Abdul Sattar was adequate. After hearing the learned counsel for the petitioners and respondent No.1 in person at length and after going through the written submission of respondent No.1 I am of the view that the judgment and decree passed by the first appellate Court cannot be sustained in law. However, before considering the revision on merits I would like to dispose of first a legal objection raised by respondent No.1 in his written submissions. It is contended by respondent No.1 that on account of the judgment of this Court in IInd Appeal No.2 of 1979, the findings on Issues Nos.1, 2, 3, 5 and 6 by the first appellate Court has attained finality and the same cannot be agitated again by the petitioners in this revision. I have carefully examined the order of remand passed by the learned Single Judge in IInd Appeal No.2 of 1979 and I am unable to hold that as a result of that order the petitioners are precluded from agitating against the findings given by the first appellate Court on Issues Nos.1, 2, 3, 5 and 6. No such implications arise from the said order. No doubt the learned Judge did not record his findings on any of the issues in the judgment while remanding the case with direction to allow opportunity to the parties to lead evidence on the two additional issues framed by the learned Judge but the remand order clearly shows that the judgment and decree passed by the first appellate Court was set aside and the case was remanded to first appellate Court for a fresh decision on the appeal after allowing opportunity to parties to lead evidence on the additional issues. The following operative part of the remand order is reproduced here for reference:‑

7. "It is the case of respondent No.1 that late Abdul Sattar was dismissed from the police service long back and had no means to pay the alleged price. I would, therefore, set aside the above judgment decree under appeal and would remand the case to the learned first appellate Court with the direction to provide opportunity to the parties to lead evidence on the above two points and thereafter to dispose of the appeal within 6 months from the receipt of the copy of judgment of this Court."

8. Having dealt with the legal objections raised by respondent No.1 in his written submissions I now proceed to consider the revision application on merits.

9. I have already reproduced earlier the grounds on which the cancellation of two registered sale‑deeds was sought by respondent No. l in his suit. The particulars of fraud and misrepresentation on which the cancellation of the two sale‑deeds were sought are set forth specifically in paragraphs 3(a) to 3(j) of the plaint and the same need not be reproduced here. The case of respondent No.1 precisely was that someone else appeared before the registrar at the time of registration of sale‑deeds and impersonated as Nek Muhammad Bullo and the reasons for this inference by respondent No.1 were‑‑(i) that the property being ancestral could not be disposed of by late Nek Muhammad, (ii) that late Nek Muhammad was a literate person and used to sigh all the papers while the sale‑deeds allegedly bore his thumb‑impressions, (iii) that the deceased Abdul Sattar kept secret these sale‑deeds and disclosed about them only after about one week of the demise of Nek Muhammad, (iv) that the respondent No.1's mother Mst. Bhain Ben had filed a suit in the year 1960 against Nek Muhammad claiming Haq Mahar against Survey Nos.210 and 211 of Deh Bullo and as such these two survey numbers could not in any event be transferred. The burden of proving the above allegations was entirely on the respondent No.1 who alleged these facts. In support of his case respondent No.1 examined himself (Exh. 65), one Mohabat (Exh.69), Mola Mukho (Exh.71),. Muhammad Sharif (Exh.72), Jial (Exh.90) and Gaman (Exh.140). After remand of the case Abdul Karim again examined himself (Exh.74) on the Additional issues besides examining Janib (Exh.75), Haji Mao (Exh.77). Deceased Abdul Sattar who was defendant No.1 in the suit examined himself in defence as Exh. 206 besides examining Abdul Wahab (Exh.207), Muhammad Panah (Exh.208) and Muhammad Iqbal (Exh.216). After remand of the case the applicants further examined Kadir Bux, (Exh.78) and Muhammad Hashim (Exh.7y). Respondent No.1 in his evidence before the trial Court instead of leading evidence on the issues framed in the suit anti the pleas raised by him in support of the relief of cancellation of two sale‑deeds, introduced two new pleas, namely, that his father was not in his senses for about 21 years before his death and, therefore, the two sale‑deeds which were. executed during this period are void and that after the death of Nek Muhammad deceased Addul Sattar had admitted during a condolence meeting of his father before "Beradari" that he would give half share of the disputed property to him. None of these two pleas were raised in the suit by respondent No. 1 nor any such issue was struck by the trial Court. The trial Court after careful analysis of entire documentary as well as oral evidence reached the conclusion that plaintiff failed to establish that the two sale‑deeds were fabricated and were executed by some fictitious person as claimed by the plaintiff and as a result of above conclusion the issues framed in the suit were answered against the plaintiff /respondent No.1. The learned first appellate Court while reversing the judgment of trial Court instead of examining the judgment in the light of issues framed in the suit made a somewhat sentimental approach to the case. The two attempted improvements made by respondent No. i/plaintiff in his evidence at the trial and which were rightly ignored by the trial Court were mainly relied by the first appellate Court for reversing the judgment of trial Court. I am unable to understand how the learned first appellate Court could take into consideration the statement of plaintiff /respondent No. and his witnesses on the plea that late Nek Muhammad Bullo was not in his senses for about years before his death and as such the sale‑deeds were void, in the absence of such a plea in the pleadings and an issue in that behalf. The plaintiff /respondent No.1 in his suit had challenged the genuineness of the sale‑deeds on the ground that someone else had appeared before the Registrar instead of deceased Nek Muhammad for execution but except the bare words of respondent No.1 no other witness supported him in this behalf. The fact that Nek Muhammad was an old man or was ailing or weak or had a failing eyesight did not necessarily mean that he did not appear before the Registrar for execution of sale‑deeds. The petitioners. evidence in support of execution of two sale‑deeds was not only cogent but convincing and came from independent source and was rightly relied by the trial Court. Similarly the statement of respondent No.1 plaintiff at the trial that deceased Abdul Sattar had admitted in a condolence meeting of his father that he will give him 1/2 share in the suit 'property was of no avail as neither there was any pleadings in this regard nor any such issue was framed for trial. The reversal of the judgment of trial Court by first appellate Court on .these considerations was, therefore, wholly without any justification. The other consideration for reversal of the judgment of trial Court is stated in the judgment of first appellate Court as follows:‑

10. "Even otherwise it is assumed for the sake' of argument that these two sale‑deeds were executed by Nek Muhammad then too this transaction cannot be held to be valid under law as the seller being a blind, infirm aged about 90 years was certainly became victim of undue influence of his son as all the avenues of independent advice in the matter of the disposition of his property were closed in him and the son who is the stepbrother of the‑appellant have taken full advantage of this situation and got the sale‑deed executed in his favour. Therefore, such a transaction can be declared to have been vitiated due to exercise of undue influence. In this connection I may refer to section 16 of the Contract Act and which reads as under:‑

(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle a person is deemed to be in a position to dominate the will of another:‑

(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other, or

(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

11. Nothing in this subsection shall affect the provisions of section 111 of the Evidence Act, 1972 ....'

12. All these facts have not been taken into consideration by the learned Senior Civil Judge, and he has wrongly shifted the burden on the appellant to prove his assertions in the plaint. In this case after the evidence of appellant was over the burden was undoubtedly shifted on the shoulder of respondent Abdul Sattar who in my view has failed to discharge the burden satisfactorily. Under these circumstances it is then obvious that both the transactions in respect of the land cannot be deemed to be valid and according to law as such it is liable to be declared null, void and inoperative and liable to be cancelled."

13. The above conclusions by the first appellate Court are once again not sustainable as neither any such plea was raised by the plaintiff /respondent No.1 in his suit nor any issue was struck by the trial Court in this behalf. The plaintiff /respondent No.1 or his witnesses in their evidence before the trial Court did not allege that the two disputed sale‑deeds were executed by late Nek Muhammad Bullo as a result of undue influence exercised by deceased Abdul Sattar. It is also incorrect that the evidence on record established that deceased Nek Muhammad was a blind person on the date of execution of sale‑deeds. The preponderance of evidence on this score only showed that at the time of execution of disputed sale‑deeds the deceased Nek Muhammad had a very weak eyesight and was physically old and infirm but these facts did not necessarily lead to conclusion that the execution of sale‑deed was involuntary or was the result of any undue influence exercised by late Abdul Sattar. The above conclusions of the first appellate Court are purely conjectural and are based on no evidence at all, besides being contrary to pleadings of the parties.

14. I will now take up the two additional issues framed by this Court for further evidence while remanding the case back to first appellate Court. From the remand order it is quite clear that burden of these two issues was on plaintiff /respondent No.1 who had raised these pleas. The evidence after remand led by the plaintiff /respondent No.1 failed to establish any of these issues. On the contrary there are admissions by the witnesses of plaintiff /respondent No.1 which showed that the price paid by deceased Abdul Sattar was according to market value. The petitioners examined two witnesses who stated on oath that deceased Abdul Sattar had paid the sale consideration after sale or ornaments and out of the amount of pension and gratuity received by him. These witnesses were not cross‑examined by respondent No. 1. On he other hand the witnesses produced by respondent No.1/plaintiff admitted in cross‑examination that deceased Abdul Sattar was in Police Department for about 25‑30 years. The above evidence on record did not in any manner support the conclusions of first appellate Court on the two additional issues. It should also be kept in mind that at the time of remand of case by this Court Abdul Sattar was dead and when he was examines before the trial Court at the initial stage he was not cross‑examined on these issues. For the above reasons I accept this revision application, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of trial Court. There will be no order as to costs.

15. A. A. Revision accepted.