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Petitioner: Mst. MERAJ BEGUM VS Respondent: Mst. SHAMSHAD AKHTAR and anothers
Court Name: Lahore High Court Judge(s): M. Javed Buttar Title: Mst. MERAJ BEGUM vs Mst. SHAMSHAD AKHTAR and anothers Case No.: Civil Revision No, 1650 of 1995 Date of Judgment:2000-04-19 Reported As: 2000 YLR 1678 Result: Revision allowed
JUDGMENT
JUDGMENT ' This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 7-5-1995 of Additional District Judge, Lahore whereby the petitioner's appeal against the judgment and decree dated 7-12-1993 of Civil Judge 1st Class, Lahore dismissing the petitioner's suit for declaration, cancellation of sale-deed and for permanent injunction, has been dismissed, leaving the parties to bear their own costs. 2. House No,314-N, Samanabad, Lahore has two portions known as eastern and western portion and the dispute relates to the eastern portion measuring 7 Marlas, 152 square feet. Respondent No,1 is daughter of petitioner/plaintiff and respondent No,2 is husband of respondent No,1. 3. The facts, in brief, are that the petitioner-plaintiff instituted the present suit on 22-12-1998 in Civil Court at Lahore for a declaration that she was owner in possession of House No,N-314, Samanabad, Lahore and that registered sale-deed dated 20-12-1982 (Exh.P1) allegedly executed by the petitioner/ plaintiff in favour of respondent/defendant No,1 was outcome of fraud and forgery. The suit is also for the cancellation of abovesaid sale-deed and the plaintiff has also prayed for permanent injunction restraining the respondents from claiming any right or interest in the property in dispute. The present suit was filed by the petitioner by averring that respondent No,1 got registered sale-deed in her favour on 20-12-1982 with Sub-Registrar by impersonating the petitioner/plaintiff and as such the same was void and inoperative against the rights of the plaintiff and liable to be cancelled. It was narrated in the plaint that the litigation for ejectment of Mirza Muhammad Ayub (another son-in-law of the petitioner) remained pending between the plaintiff and Mirza Muhammad Ayub in respect of House No . S-16-N314 , Samanabad, Lahore, and ended in the High Court in the shape of a compromise and when Mirza Muhammad Ayub filed execution
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petition for the execution of sale-deed according to the compromise then respondent/defendant No,1 disclosed that she had purchased the said property, eastern portion of the House No,314-N, Samanabad which was subject-matter of compromise between the plaintiff and the abovesaid Mirza Muhammad Ayub. The plaintiff went to the office of Sub-Registrar and discovered that forged document had been prepared on her behalf, that neither she had put her thumb-impression upon the sale-deed nor she had made any execution of the sale-deed or received the amount of Rs,75,000, alleged to be the sale consideration, that it is all forgery and fraud, that the document was kept secret during the pendency of the litigation between the plaintiff and Mirza Muhammad Ayub and for the first time she came to know about its existence only in November, 1988, that defendant No,1 who is daughter of plaintiff has prepared these documents through fraud and forgery in connivance with defendant No,2, the husband of defendant No,1. 4. The respondent resisted the suit by filing joint written statement in which they have contended that the litigation between the plaintiff and Mirza Muhammad Ayub was in regard to the western portion of the house which has no concern with the eastern portion of the property which is the property in dispute which had been sold by the plaintiff to defendant No, 1 vide sale-deed dated 20-12-1982, which was duly executed by the plaintiff in consideration of Rs,75,000 duly received by the plaintiff and the attestation of the document took place before Sub-Registrar, Lahore, that even Mirza Muhammad Ayub fully knew about the sale-deed in dispute because on 23-5-1988 he moved an application in the Court that Mst. Mehraj Bibi, the petitioner/plaintiff be directed to disclose the sale transaction but she refused to reply the query on legal grounds and she did not explicitly deny the sale transaction. The defendants have also denied the other averments and have prayed for the dismissal of the suit. 5. On the pleadings of the parties, learned trial Court framed the following issues: "(1) Whether the suit is within time? OPP. (2) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction? If so, what is its correct valuation and to what effect? O.P. Parties. (3) Whether the disputed sale-deed dated 20-12-1982 is forged and fraudulent and, has not been executed by the plaintiff, nor she has received Rs,75,000 as consideration of the sale-deed? OPP. (4) Whether the suit is bad for misjoinder of the defendant No,2? OPD. (5) Whether the eastern portion of house alienated by the plaintiff vide disputed sale-deed is different and distinct from the western portion of the house regarding which plaintiff was in litigation with Mirza Muhammad Ayub? OPD. (6) Whether the plaintiff is entitled to the declaration as prayed in the plaint? OPP. (7) Relief." 6. The petitioner in support of her suit produced three witnesses including herself. The statement of P.W.1 Mirza Muhammad Ayub was recorded on 15-12-1990. He stated that he knows the parties, the plaintiff is about 80 years old and lives in House No,314-N, she is illiterate, she puts thumb- impression (meaning thereby that she cannot sign any document), she cannot understand anything easily, the property in dispute is in possession of the plaintiff. The witness further stated that she does not know as to whether the plaintiff has put her thumb-impression on any registered sale-deed or whether she has received any money in consideration of my such execution and the petitioner did not consult him because of the litigation between him and the plaintiff. The witness also deposed that the disputed sale-deed was executed/registered without the knowledge of the plaintiff and it was got executed by the defendants and the sale-deed is forged and fictitious documents and that the suit property is owned by the plaintiff. In the cross-examination, he admitted that the plaintiff had filed an ejectment suit against him in respect of the western portion of the abovementioned house, which was accepted on 16-7-1976, his appeal was dismissed by the Additional District Judge, Lahore on 12-11-1977, however, the matter was remanded back by the High
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Court and on remand the Rent Controller again passed the order of his ejectment and on his appeal, the Additional District Judge also remanded the case bac' to the Rent Controller and the Rent Controller again vide his order, dated 24-6-1987 ordered his ejectment, against which he filed an appeal and during the pendency of the appeal he alleges to have entered into a compromise with the plaintiff and according to him at that time the plaintiff did not suffer from any mental ailment. He further admitted that in the compromise the plaintiff had promised to sell him the portion of the house in regard to which she had filed the ejectment suit against him. He admitted Exh.D.1 to be the copy of the ejectment petition filed by the plaintiff against him, Exh.D.2 to be the copy of application, dated 23-5-1988 filed by him against the plaintiff in the Court of Mr. Fayyaz Hameed, Additional District Judge Lahore, Exh.D.3 to be the reply of the above application and Exh.D.3/1 to be the copy of an affidavit. In regard to the copy of the site plan Exh.D.1/1, he answered that it may have been attached with the ejectment petition but he could not be sure. In further cross-examination, he admitted that he filed a suit for specific performance which was dismissed on 27-10-1986, his appeal was dismissed on 12-10-1987, against which he filed a revision petition in the High Court which was disposed of on 30-10-1988 on the basis of a compromise between the parties. He also conceded that the property in dispute is the eastern portion of the house in dispute. He denied the suggestions that sale-deed (Exh.P1) was executed by the plaintiff of her own free-will in favour of defendant No,1, that the plaintiff received Rs,75,000 from defendant No,1, he pleaded ignorance as to whether the thumb-impressions on Exh.P1 were of the plaintiff. He also denied the suggestion that the property in dispute was in possession of defendant No 1 through a tenant and that the suit had been instituted on his instructions. 7. P.W.2 Ehtesham Ahmad stated that the plaintiff was his mother-in-law who is 80 years' old enjoying good health and that at one time he used to live in the house in dispute. He further stated that the plaintiff is illiterate and puts her thumb-impressions as she cannot sign and the house in dispute is in possession of the plaintiff and that the plaintiff has not sold the house in dispute to the respondents and has not received any money from them and the plaintiff has been subjected to a fraud. In his cross-examination, he has stated that the plaintiff has one son and four daughters and that the portion in dispute is the eastern portion of the house and Mirza Ayub used to live in the western portion of the house whereas the plaintiff lives in the eastern portion of the house. It has also been brought in the cross-examination that the son of this witness is married to the daughter of Mirza Ayub. He denied the suggestions that due to his relationship with Ayub and because of his interest in the property, he was giving false evidence, that the plaintiff had of her own free-will executed the sale-deed in favour of defendant No,1 after receiving the sale consideration, that eastern portion was in occupation of defendant No,1 and that defendant No,1 had not played any fraud with the plaintiff. 8. The plaintiff herself appeared as P.W.3. Her statement was recorded on 12-1-1991. She stated that she was 80 years old and was totally illiterate, the house in dispute was in her possession and she was living in the same, defendant No,1 was her daughter and defendant No,2 was her son-in-law, the house in dispute was never sold by her to defendant No,1 and she never received any money from defendant No,1. She further stated that the thumb-impressions on Exh.P.1 were not hers but in the next breath she has stated that defendant No,1 got her thumb-impressions on Exh.P.1 through fraud and on coming to know of the defendant's fraud, she instituted the present suit about two years ago. She has categorically stated that in regard to Exh.P.1 she never appeared in any Court. In cross-examination, she has admitted that`' the house in dispute has two portions, eastern and western portions. She has also stated that she does not know as to what is written in the present suit which admittedly has been instituted by her. She has also stated that at the time of the institution of the suit, Mirza Ayub was with her. She was not able to remember as to whether she was operated upon five years ago or 10 years ago. She admitted that notice Exh.P.2 was sent by her
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through her lawyer. She denied the suggestion that she appeared before the Sub-Registrar at the time of registration of Exh.P.1, She further denied the suggestions that she had received earnest money of Rs,65,000 from defendant No,1 prior to the registration of Exh.P.I and that she received Rs,10,000 at the time of the registration of the sale-deed before the Registrar and denied having put any thumb-impressions before the Sub-Registrar or that the thumb-impression Marks A, D, E, F, G and H were put by her voluntarily on Exh.P.1. She further denied the suggestion that she affixed her thumb-impression on Exh.P.1 voluntarily in the presence of her real brother Abdul Majeed. She also denied the suggestions that from 1982, the property tax of the disputed portion was being paid by defendant No,1, that in Excise and Taxation record the disputed portion is shown to be in the name of defendant No,1, that she knows of Exh.P.1 from 1982 and that she had instituted the present suit because of the pressure of Mirza Ayub. 9. On 22-1-1991, the plaintiff's evidence was closed on the statement of her counsel. 10. The defendants produced five witnesses. D.W.1 Shahab-ul-Raza is Inspector, Finger Print Bureau who produced his report Exh.D.2 (renumbered by the trial Court as Exh.D.2(A)). According to the report of the Finger Print Expert, as recorded by the trial Court in the impugned judgment, the thumb-impressions marked as I and J on the sale-deed (Exh.P.1) are identical with the right thumb-impressions of the plaintiff Mst. Mehraj Bibi on her sample paper P-A whereas the impressions marked as 'C' on the sale-deed (Exh.P.1) are identical with the right thumb-impressions of the plaintiff Mst. Mehraj Bibi on her sample paper P-A whereas the impressions marked as 'C' on the sale-deed is not clear enough and the impressions marked as A, D, E, F, G, and H on the sale- deed are blurred and indicipherable. The lengthy cross-examination of this witness is not relevant because the plaint' ff in her statement as P.W.3 has admitted her thumb-impressions on Exh.P.1 although she states that the same were obtained by defendant No,1 through fraud. 11. D.W.2 Talaat Bashir, Registry Moharrir from the office of Sub-Registrar, District Courts, Lahore brought the original record of the registered sale-deed (Exh.P.1) and stated that the original record was in accordance with Exh.P.1. In cross-examination, he stated that in Exh.P.1 under the thumb- impressions, the name of Mst. Mehraj Begum/the plaintiff is printed but in the original record brought and produced by him on the first page, the name of Mst. Mehraj Begum is not written under the thumb-impressions. He also stated that on page 2 of Exh.P.1, three thumb-impressions are available whereas in the original record brought by him only one thumb-impression is available. He also stated that all the thumb.-impressions are not put' before the Sub-Registrar and only the thumb-impressions for the purposes of identification are affixed before the Sub-Registrar. He further clarified that the thumb-impressions of vendor and the identifier are put before the Sub- Registrar. He has also pointed out in the cross-examination that in Exh.P.1, the name of the witness Abdul Majeed is typed whereas in the original record the same is handwritten and he has clarified that the original record lying in the office of the Sub-Registrar is carbon copy of Exh.P.1 and the address of the witness Abdul Majeed available on Exh.P.1. Has been typed afterwards. Similarly on page 4 the name of Mst. Mehraj Begum is typed under thumb-impressions whereas according to his record the name is handwritten. He has also pointed out that according to original record on page 4 the number of National Identity Card is not given under the thumb-impressions whereas on Exh.P1 is to so given. He has also elaborated that on the back page of the sale-deed the proceedings conducted by the Sub-Registrar are entered and in the original record page number 128/132 is entered on the said back page but this entry is missing from Exh.P1. 12. D.W.3 Ch. Bashir Ahmad, Advocate has stated that he is marginal witness of sale-deed (Exh.P1) which was got registered by the plaintiff before the Sub-Registrar in his presence and the balance amount of sale consideration of Rs,10,000 was received by her in his presence. He has, however, admitted in cross-examination that Exh.P1 was not written in his presence and he did not identify the plaintiff before the Sub-Registrar and he does not know as to who identified the plaintiff before
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the Sub-Registrar and he has denied the suggestion that the plaintiff did not appear before the Sub-Registrar and some other female impersonated her. 13, D.W.11 Rizwan Majeed son of Abdul Majeed identified the signatures of the marginal witness Abdul Majeed on Exh.P1, Abdul Majeed was his father and at the time when the statement of this witness was recorded, he was in a coma and was not in a position to appear in Court. The trial Court has also recorded that Malik Waqar Saleem, Advocate was appointed as a Local Commissioner for visiting Abdul Majeed/the marginal witness and vide his report dated 16-3-1992 he reported that the marginal witness is in a state of coma and is not in a position to get his statement recorded in Court. 14. D.W.4 Muhammad Aslam/defendant No,2 stated that he is attorney of defendant No,1 and that defendant No,1 did not play any fraud with the plaintiff and the plaintiff affixed her thumb- impression voluntarily on Exh.P1. He has also stated that the whole of the amount of sale consideration of Rs,75,000 was paid to the plaintiff and he was also present at the time of the registration of the sale-deed through which defendant No,1 has purchased the eastern portion of the house. He further deposed that defendant No,1 was in possession of the portion purchased by her through a tenant and after the registration of the sale-deed, the name of defendant No,1 was entered as owner in the tax record. He produced copies of the tax record as Exh.P4/2 and the receipts of payments of the property tax as Exh.P4/3. In the cross-examination, this witness states that he is an Inspector in the Income-tax Department and the defendant No,1/his wife is not in any employment and has no independent source of income but defendant No,1 purchased the property in dispute by selling her golden ornaments and by obtaining some money from him. He further admits that after having purchased this property he and his wife did not shift to the property in dispute because the same was occupied by a tenant and even at the time of recording his statement, one Nasir Chughtai was occupying the same as a tenant and the rent was being received by the defendants. In answer to another question he further stated that he would not agree to the appointment of a Local Commission to visit the spot and to verify in regard to the occupancy of the tenant being under the defendants and has conceded that because of the present litigation, the tenant has refused to recognize the defendants as his landlords and he is not paying any rent to them. He further answered that his monthly salary (at the time of recording of the evidence) was Rs,4,750 and he has five children, he joined the Income-tax Department in 1968 as a Clerk and besides his job he has no other independent source of income. In the later part of the cross-examination he has elaborated that the whole of the consideration amount was paid by him to the plaintiff and again said that the defendant No,1/ his wife obtained the sale consideration from him and paid it to the plaintiff and at the time of payment of sale consideration to the plaintiff by defendant No,1, nobody except him was present. He has again stated that Rs,65,000 were paid to the plaintiff as earnest money without any receipt and the balance amount of sale consideration of Rs,10,000 was paid in front of the Sub-Registrar. He also admits that the sale-deed was not written in his presence and that the stamp paper of the sale-deed was purchased by him on the asking of the plaintiff but it was got prepared by the plaintiff herself. He has also admitted that the plaintiff is an illiterate person. It is also admitted by him that the plaintiff was not identified by anybody at the time of registration of the sale-deed and it is also admitted that at the time of the registration, defendant No,1 was not present and that the Sub-Registrar did not record the fact of receipt of the balance of the sale consideration in his presence. In the later part of his cross- examination, he has again admitted that the plaintiff was not identified by anyone at the time of registration of the sale-deed. 15. I have heard the learned counsel for the parties and have also seen the record, copy of which is attached with this petition.
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16. It is contended by the learned counsel for the petitioner that the sale-deed (Exh.P1) is in English language and the same has been thumb-marked by the petitioner-plaintiff and it has also been proved through evidence that the petitioner is an illiterate lady and these facts establish that the plaintiff did not know of the contents of the sale-deed; that the plaintiff was not identified by anybody at the time of the registration of the sale-deed which makes her presence before the Sub-Registrar at the time of the execution of the sale-deed highly improbable and doubtful, that according to D.W.4 Muhammad Aslam/defendant No,2 himself, out of total sale consideration of Rs,75,000, an amount of Rs,65,000 was paid to the petitioner-plaintiff previously without any receipt and only in the presence of the defendants and in the absence of any bther witness and the balance of sale consideration of Rs,10,000 was paid to the plaintiff before the Sub-Registrar but the endorsement of the Sub-Registrar does not contain any such certificate of payment of, the balance of sale consideration in his presence and these facts establish that no sale consideration was ever paid to the plaintiff-petitioner by the defendants; that the petitioner is an illiterate, old and ignorant lady and the moment she denied the execution of the sale-deed, the onus shifted on respondent No,1/defendant No,1, the beneficiary, to prove through unimpeachable evidence that the safe-deed was executed by the petitioner and was entirely of her own free-will for the sale consideration duly paid to her and she transferred the property to defendant No,1 knowing all the facts and the contents of the sale-deed but the defendants have failed to discharge the onus and the Courts below have acted illegally in ignoring the law on the subject; that mere signing or thumb-marking of the sale-deed by an illiterate, old and ignorant female cannot be equated with the execution of a sale-deed by such a person; that mere registration of the deed does not amount to conveyance of the property especially by an illiterate, old and ignorant female unless it is established by the beneficiary that the sale consideration was duly paid to the vendor and the possession was delivered by the vendor to the beneficiary; that the above legal pleas were specifically urged and argued by the petitioner's counsel before the Appellate Court and these pleas were also taken in writing in the memo. Of appeal (Ground "d' of memo. Of appeal is referred) but the Appellate Court has not adverted to the legal issue and has not referred the case-law cited by the petitioner's counsel; that the vendee/ beneficiary did not put herself in the witness-box and, therefore, she has miserably failed to prove that she is a bona fide purchaser for a valuable consideration duly paid to the plaintiff who is an illiterate, ignorant, old female; that the statement of Rizwan Majeed D.W.11 is inconsequential because he merely identified the signatures of his father as marginal witness on Exh.P1 and this witness is not in a position to say that the contents of the sale-deed were ever read over and explained to the petitioner; that similarly the statement of Ch. Bashir Ahmad, Advocate, a marginal witness of the sale-deed is inconsequential because he has admitted that the deed was not written in front of him and that he did not identify the plaintiff before the Sub-Registrar and there is nothing on the record to show that the contents of the deed were ever read over and explained to the plaintiff, thus, the defendants have failed to discharge the onus of Issue No,3 because during the pendency of the suit when the execution of the sale-deed and the conveyance of property to defendant No,1 through the said sale-deed was denied by the petitioner, the onus, in law, shifted to defendant No,1 who is the beneficiary of the sale-deed and having failed to discharge the same, the Courts below were left with no other choice except to decree the petitioner's suit as prayed for; that the petitioner has one son and four daughters and there is nothing on the record to show as to why she should want to deprive her other children by transferring this property to defendant No,1 and in fact through this fraud and forgery defendant No,1 has tried to deprive other heirs of the petitioner of their due share of inheritance when it will open on the death of the petitioner; that D.W.3 Ch. Bashir Ahmad, Advocate is not a witness of payment of major amount of sale consideration of Rs,65,000 and has merely stated that the balance amount of Rs,10,000 was paid to the petitioner in his presence before the Sub-Registrar
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but this is negated by the sale-deed, itself, because no corresponding endorsement by the Sub- Registrar, recording this fact is available on the sale-deed; that the discrepancies between the original record available in the office ut Sub-Registrar and the sale-deed Exh.P1, as pointed out by D.W.2 Talaat Bashir, Registry…
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