AMIRZADA KHAN and another vs ITBAR KHAN and others

ORDER

' ABDUR REHMAN KHAN, J.---Petitioner as plaintiff instituted a suit for declaration claiming ownership and possession over the disputed land on the basis of rejected/unattested Sale Mutation No,2193, dated 16-3-1950, from Mst. Noor Bibi, predecessor of defendants/respondents Nos.1 to 10 and praying for cancellation of Inheritance Mutation No,4235 sanctioned on 24-5-1978, in respect of the inheritance of said lady in favour of her successors, defendants Nos.1 to 10, about the property in suit. It was explained in the body of the plaint that the plaintiff and defendant No,11 had jointly purchased 6 Kanals and 16 Marlas of land in equal shares at the sale price of Rs,6,000 and the entitlement of the plaintiff thus comes to 3 Kanals and 8 Marlas. It was averred in tie plaint that Mutation No,2893 was entered about this sale; that the statement of the vendor was recorded by the local commissioner in presence of the witnesses who had admitted the disputed sale and the receipt of sale price and that possession was delivered to the plaintiff. It was, therefore, alleged that the Revenue Officer was not legally justified to refuse the attestation of mutation. It was stated that plaintiff had become owner of the land in question, therefore, it could not be included in the inheritance mutation of the seller (Mst. Noor Bibi) in favour of her legal heirs defendants Nos.1 to 10.

Defendants Nos.1 to 10 controverted the allegations made in the plaint and denied the sale on behalf of their predecessor in favour of the plaintiff. It is to be noted at this stage that Mughal Khan defendant No,11 who is shown in the plaint to have purchased the other half from Mst. Noor Bibi, while appearing as D.W.2, did not support the sale either in his own favour or in favour of the plaintiff. The learned trial Court held that the evidence brought on record by the plaintiff fully established the factum of sale in their favour on behalf 'of Mst. Noor Bibi and that the Revenue Officer legally erred in rejecting the sale mutation in favour of the plaintiff and accordingly decreed the suit. The learned Appellate Court did not agree with the conclusion reached by the Trial Court and as such reversed its judgment and dismissed the suit. The learned Judge in the High Court in revision by the impugned judgment agreed with Appellate Court in the dismissal of the suit of the plaintiff. This petition for leave to appeal has been filed to challenge the impugned decision of the High Court.

2. The learned counsel referred to the impugned mutation appearing at page 61 of the paper book and stated that there is mention of Itbar Khan (defendant No,1) who is husband of Mst. Noor Bibi which proves that Itbar Khan was associated with the transaction covered by the mutation. This is a fallacious argument. Itbar Khan has neither reported the sale to the Patwari nor he was present at the time of the recording the statement of his wife (Mst. Noor Bibi) by the commission. The sale was reported to the Patwari by one Zawar described as relation of Mst. Noor Bibi and the attesting marginal witnesses over the mutation are Zarin Khan (P.W.5) and Abdul Malik (P.W.6). It is admitted position that Abdul Malik (P.W.6) was in no way related to. Mst. Noor Bibi and also even if the relation of Zawar being a cousin of the vendor, as stated by him, is admitted that relation would not satisfy that test/criteria as laid down by the superior Courts to prove independent and free advice while dealing with an illiterate 'Pardahnasheen' lady in a transaction in which she is to part with certain property. It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a 'Pardahnasheen' lady and a document allegedly executed by such a lady lies on the person who claims benefit from prove and satisfy the Court; firstly, that the document was executed by the transaction or under the documents. Such a person is legally obliged to 'Pardahnasheen' lady and secondly, that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. The evidence on record as discussed by the Appellate Court and the High Court does not satisfy the above standard. The plaintiff failed to prove that at any stage during the proceedings in the mutation any close relation of the vendor-lady was associated.

3. It is also settled principle of law that mere reliance on mutation for certain transaction would not be sufficient for proof of the transaction as covered by the mutation unless some cogent evidence proving the transaction itself irrespective of the mutation is examined in Court. As the above requirements laid down from time to time for a transaction with Pardahnasheen lady have not been satisfied in this case, therefore, the Appellate and the High Court were correct to refuse to enforce such a transaction and that rightly concurred in the dismissal of the suit. Moreover the denial of Mughal Khan, the co-vendee in the sale in dispute about half portion of the property in his favour and the filing of the suit after 33 years of the alleged sale are other valid reasons for discarding the sale in favour of the petitioners. Consequently, leave is refused and petition is dismissed.