Saturday, 18 October 2014

Plea of Fraud by Pardanasheen Lady

PLJ 2002 SC 427 [Appellate Jurisdiction]    _
Present: mian muhammad ajmal and syed deedar hussain shah, JJ.
Mst. RAJ BIBI and others-Appellants
versus
PROVINCE OF PUNJAB through DISTRICT COLLECTOR, OKARA and 5 others-Respondents
Civil Appeals Nos. 1329 and 1330 of 1995, decided on 26.2.2001.
(On appeal from the judgment of the Lahore High Court, Lahore dated 11.5.1994 passed in Civil Revisions Nos. 506 and 507 of 1991)
(i) Land laws-
—Where pleas of fraud, deceit and misrepresentation had been taken by illiterate Pardahnashin ladies in alleged disposal of their properties, onus in such cases lay on person who had taken advantage of transaction to prove genuiness and bona fides of document through which transaction had been executed and contents of such document were fully concerned and understood by executant independently and freely.       [P. 431] B
 (ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)-- 
—Ss. 42(7)-Constitution of Pakistan (1973), Art. 185(3)--Leave was granted by Supreme Court to examine contentions that two illiterate sisters had been deprived of their land in collusion with Patwari and Courts below had ignored some basic features of case while upholding legality of impugned mutation that at time of attestation of mutation none of male relatives of women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who didnot state as to how he was acquainted with two sisters residing in a different village; that according to one of vendees who appeared on behalf of other vendees at trial consideration for sale was paid before Tehsildar while attesting officer denied that it was so paid and that neither mutation register nor relevant page of Patwari'sRoznamcha Waqiati bore thumb-impressions of two sister. [Pp. 429 & 430] A 
(iii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
—S. 42-Where pleas of fraud, deception and misrepresentation had been taken by illiterate Pardahnashin ladies in alleged disposal of their properties, onus in such cases lay on person who had taken advantage of transaction to prove genuineness and bona fides of document through which transaction had been executed and contents of such documents were fully conceived and understood by executant independently and reely.  [P.431 ] B
(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
—S. 42-Pardahnashin ladies emphatically denied sale and their appearance before Revenue Officer or receipt of any sale consideration-Effect-Where evidence of beneficiaries in record was not only unsatisfactory but was. incredible, such evidence could not be attached any credence-Pardahnashin ladies, in circumstances, were not a party to mutations and they were totally kept in dark about transactions and fictious mutations were got attested with connivance of Revenue Staff-Mutation proceedings wherein two ladies had denied their participation were not only in gross violation of S. 42(7) of West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, mutations being illegal, entire structure built on them would fall to ground-Fraud vitiates even most solemn transaction as such any transaction based on fraud would be , void and notwithstanding bar of limitation matter could be considered on merits so as not to allow fraud to perpetuate.
[Pp. 432 to 434] C, D & E
Rana Abdur Rahim Khan, Advocate Supreme Court and Mr. Tanvir Ahmad, AOR (absent) for Appellants. Exparte for Respondent No. 1.
Mian Saeed-ur-Rehman Farrukh, ASC for Respondents. Date of hearing: 28.2.2001,
judgment
Mian Muhammad Ajmal, J.--By this common judgment we purpose to dispose of Civil Appeals Nos. 1329 and 1330 of 1995 as they have arisen out of the common judgment, impugned in both the appeals and involve identical questions of law and facts.
2. Brief facts of the case are that on 9.6.1984 the plaintiffs/appellants in both the appeals filed two separate suits before the Civil Court, Okara seeking declaration to the effect that they were owners of the suit land and the alleged Mutations Nos. 86 and 102 attested on 17.1.1974 and 29.8.1974, respectively were illegal, collusive, fraudulent, without consideration and inoperative upon their rights. As a consequential relief, decree for possession of the suit land was also prayed for. It wasalleged in both the plaints that the appellants were owners of the suit land; that they had never alienated it in any way to Respondents Nos. 2 to 6 and they were still owners of the same; that Ghulam Nabi Respondent No. 3 who was a Patwari in the Revenue Department, he with the connivance of Respondents Nos. 2, 4 to 6 and the revenue staff got the above mentioned mutations attested in the names of Respondents Nos. 2 to 6 whereas neither the appellants ever alienated the land to them in any manner nor they got entered any alienation in Roznamcha Waqiati; that the appellants neither appeared before the Revenue Officer for attestation of the alleged mutationsnor received the alleged consideration of Rs. 32,000/- in each case; that the Respondents Nos. 2 to 6 had illegally and forcibly occupied the suit land and despite requests of the appellants they refused to deliver its possession to them. Respondents Nos. 2 to 6 resisted suits and alleged that they have purchased the suit land for a consideration of Rs. 32,000/- in each case. It was further alleged that the appellants got criminal case registered against them, wherein they were found innocent and exonerated from the charges. They prayed for dismissal of the suits. On divergent pleadings of the parties, the trial Court framed issues, recorded evidence of the parties and after hearing their learned "counsel, decreed both the suits vide two separate judgments dated 31.3.1990. Feeling aggrieved, Respondents Nos. 2 to 6 filed two appeals, which were allowed by Addl. District Judge-II, Okara vide two separate judgments dated 25.2.1991 and both the suits of the appellants were dismissed. Feeling dissatisfied, the appellants filed two civil revisions which have been dismissed vide common judgment impugned herein. The appellants impugned the common judgment of the High Court by filing two petitions for leave to appeal, wherein leave to appeal was granted to ' consider :—
"In support of these petitions it is contended that two illiterate women have been deprived of their land by Respondents No. 2 to 6 in collusion with the Patwariand that the Courts below have ignored some basic features of the case while upholding the legality of the mutation. In this context it is pointed out that at the time of the attestation of the mutation none of the male relatives of the
petitioners was present; they were alleged to have identified by Muhammad Ramzan who was a lambardar of a different village. He did not state how he was acquainted with the two women residing in a different village. According to one of the vendees who appeared on behalf of other vendees at the trial consideration for the sale was paid before the Tehsildar. The attesting officer denied that it was so. Neither the mutation register nor the relevant page of the Patwari'sroznamcha waqiati bore the thumb-impressions of the two sisters.
The contentions raised in support of this petition need examination. Leave to appeal is granted. During the pendency of the appeal the respondents should not alienate the land."
3.  Learned counsel for the appellants contended that the appellants were four sisters, who were illiterate parda nashin ladies, they were gifted the land in dispute by their father in two parcels each measuring 129 Kanals 15 marlas, which was duly mutated in their names by two mutations, one in favour of Mst. Raj Bibi and Mst.Shehlla Bibi jointly and the other in favour
of Mst. Saidan Bibi and Mst. Sahiran Bibi jointly. Respondents Nos. 2 to 6 got the said land transferred in their names by giving it the colour of sale purportedly by the appellants for a consideration of Rs. 32,000/- in each case. The appellants when came to know about the fictitious and fraudulent mutations, they challenged the same through the civil suits. Learned counsel
submitted that the respondents, are collaterals of the appellants and are residents of village Dhaliana, but the disputed mutations were got attested by them on the identification of Muhammad Ramzan Lambardar of village Fatyana (DW-4) and Muhammad Ashiq DW-6, son-in-law of Respondent No. 3. At the time of attestation of the mutations, neither any male relativeof the appellants was present nor they participated in mutation proceedings, therefore,   they   remained   ignorant   about  the   alleged   alienations.   He submitted that the mutation register and Roznamcha Waqiati do not bear the thumb impressions of the appellants, as such through fraudulent and collusive mutations, the entire land of the appellants was grabbed by the respondents, out of whom, Ghulam Nabi Respondent No. 3 was a Patwari, who enacted the entire drama. He urged that in sale, the payment of consideration  was   precise  question  which   has  not  been  satisfactorily answered by the respondents. He referred to the statement of MuhammadRamzan (DW-4), Muhajnmad Ashiq (DW-6) and Ghulam Nabi (DW-7), whohave stated that sale consideration of Rs. 32,000/- was received by the appellants before Tehsildar but the Tehsildar (DW-5) in his statement, has denied that any payment was made in his presence to the vendors whom he did not know.
4.     On the  other  hand,  learned  counsel  for the  respondents contended that Ghulam Nabi Respondent No. 3 was appointed Patwari in 1975 whereas the disputed  mutations were attested in the year 1974, therefore,   the   allegation   of   manoeuvring   of   the   mutations   is   not maintainable. He submitted that possession of the land in dispute was delivered to the respondents in pursuance of the mutations in 1974 whereas the suits were brought in 1984, therefore, the suits being hopelessly time barred, were liable to be dismissed.
5. It is now well-settled that in cases where pleas of fraud, deception and misrepresentation have been taken by the illiterate parda nashin ladies in alleged disposal of their properties, the onus in such cases lie on the person who takes advantage of the transaction to prove the genuineness and bona fides of the document through which transaction has been executed and that the contents of such document were fully conceived and understood by the executant independently and freely. Reference can be made to Jannat Bibi vs. Sikandar All and others (PLD 1990 SC 642). The appellants are alleged to have executed two Mutations Nos. 86 and 102 attested on 17.1.1974 and 29.8.1974, respectively, with a gap of more than seven months but strangely enough both were attested in similar circumstances with the same set of attesting witnesses. Mst. Raj Bibi and Mst. Saidan Bibi while appearing in their respective suits, stated that neither they have sold their landed property to the defendants/respondents nor have appeared before any Revenue Officer nor have received any consideration. They deposed that the respondents have forcibly occupied their land and got the mutations attested by producing some other ladies. In cross-examination, they denied the sale in favour of the respondents and their appearance before the Tehsildar. Haji Muhammad Tufail Lambardar of village Dhalyana (PW-2) and Muhammad Abbas (PW-3) also stated that the plaintiffs have neither sold their land to the defendants nor have received any money. They further deposed that the defendants have committed fraud and have forcibly occupied the land of the plaintiffs. On the other hand, Muhammad Khan, Officer Qanoongo (DW-1), Ahmad Ali (DW-2) and Inayat Khan, Naib Patwari (DW-3) appeared and produced record. Muhammad Ramzan Lambardar village Fatyana DW-4 stated that he identified the appellants at the time of attestation of the mutations and they received Rs. 32000/- as sale consideration in each case before the Tehsildar. Jawad Hassan M.I.C. DW-5) deposed that in 1974 he attested the disputed mutations as Tehsildar in favour of the defendants. The vendors were identified by Muhammad Ramzan Lambardar, Muhammad Abbas Lambardar and Muhammad Ashiq Pattidar Deh. In cross-examination, he conceded that neither he personally knew the vendors nor any payment was made before him to the vendors. He showed his ignorance that Ghulam Nabi,defendant was a Patwari under him and denied that mutations were attested at his behest. Muhammad Ashiq (PW-6) stated that he was Pattidar of the village and he signed the attestation as a marginal witness. In cross-examination, he stated that sale
amount was counted and placed on the table of the Tehsildar which was received by the vendors. He admitted that Ghulam Nabi and Ghulam Mustafa defendants were his son-in-law and brother-in-law, respectively. He deposed that at the time of attestation only he and Muhammad Ramzan were present. Ghulam Nabi (DW-7), one of the defendants, stated that they have purchased the suit land for a sum of Rs. 32,000/- in each case from the plaintiffs in 1973-74 and the sale amount was paid before theTehsildar. The land is in their possession ever since. In cross-examination, he stated that he passed Patwar examination in 1961 and was posted in 1975. He denied thesuggestion that sale consideration was not paid before the Tehsildar and that they have committed fraud with the plaintiffs and mutations were got attested collusively without paying any consideration.
6. The appellants have emphatically denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration. The resume of the evidence, in nutshell, is that the total land of the illiterate parda nashin ladies was got mutated at their back by the defendants in their favour. In such a case, the beneficiary party had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free will of the executants. The evidence of the defendants in this regard is not only unsatisfactory but is incredible as well. According to Jawad Hussain M.I.C. (DW 5), the vendors were identified by Muhammad Ramzan (DW-4) a lambardar of a different village whereas Haji Muhammad Tufail (PW-2)lambardar of the concerned village where land was situated was available. Muhammad Ramzan (DW-4), lambardar of a different village did not disclose as to how he knew the appellants. When Haji Muhammad Tufail (PW-2), lambardar of village Dhalyana was available, why was he not associated with the attestation proceedings. Another question is qiat when the Revenue Officer was attesting the mutations with regard to the property of the illiterate parda nashin ladies, why did not he insist for the presence of the male relatives of the ladies who could identify them and the presence of respectable persons of the locality, preferably lambardar or members of the area concerned as required under Section 42(7) of the West Pakistan Land Revenue Act, 1967. According to DW-5, he did not know the vendors and no payment to them was made before him while Muhammad Ramzan (DW-4), Muhammad Ashiq (DW-6) and Ghulam Nabi (DW-7) stated that sale consideration, which is an essential ingredient of sale, was paid to the vendors before the Tehsildar. The Contradictory statements of the witnesses make the transaction doubtful. The respondents being beneficiaries of the transactions, their evidence was imbued with interest and such evidence cannot be attached any
credence, from the evidence on record, an irresistible conclusion can be drawn that the appellants were not a party to the mutations and they were totally kept in dark about the so called transactions, and fictitious mutations were got attested by the defendants in their favour with the connivance of the revenue staff, of the entire land of the plaintiffs at their back as neither the mutation register, Roznamcha Waqiati nor, the disputed mutations bear the thumb impressions of the appellants.
7.             Another aspect of the case is that disputed mutations were attested by the Revenue Officer in utter disregard of mandatory provisions of Section 42 of the West Pakistan Land Revenue Act, 1967. The appellants unequivocally stated that they had not appeared before any Revenue Officer in connection with the alleged sale. Neither the register of mutations nor the mutations bear their thumb-impressions, who were allegedly identified by Muhammad  Ramzan  (DW-4),  a  lambardar  of a different  village  and Muhammad Ashiq (DW-6), father-in-law of Ghulam Nabi Patwari and one of the alleged vendees of the disputed land and beneficiary of the alleged transactions, who manoeuvred the whole drama in connivance with the Revenue Officer. Ghulam Nabi (DW-7) has stated that he passed patwarexamination in 1961 at the age of 19 years and when he joined service, he was 24/25 years of age. As such, he joined service in the year 1966-67 and at the time of attestation of disputed mutations he was in active service, who managed to grab the property of the helpless ladies in league with the Revenue Officer. The, mutation proceedings in which the appellants havedenied their participation were not only in gross-violation of Section 42(7) of the Act ibid, but were also false and fictitious as such, the mutations being illegal, the entire structure built on them would fall to the ground.
8.       There is no specific issue with regard to the suit being time barred as such objection has not been taken in the written statements. However, the learned trial Court in its finding on Issue No. 4 observed that the suits were within time holding that the plaintiffs had not sold their landed  property to  the defendants  and  the  disputed  mutations werefraudulently got attested by the defendants without consideration and knowledge of the plaintiffs. Learned appellate and the revisional Courts, however did not specifically advert to this aspect of the case. It is well-settled that fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation thematter can be considered on merits so as not to allow fraud to perpetuate. The appellants previously in 1976 filed two suits asserting the disputed mutations to be fraudulent, collusive and illegal but the plaints in the said suits were returned on the ground that the Court, had no pecuniary jurisdiction to adjudicate them. The appellants also got registered a caseunder Section 420 PPC against the respondents but it was filed within a month. The appellants submitted application to the Deputy Commissioner for holding inquiry into the fraud committed in the attestation of mutations  
9.       by the respondents in connivance within the revenue staff, but it too, did not bear any fruit. This shows that illiterate parda nashin ladies have been running from pillar to post to seek redress of their grievance but they failed and ultimately the defrauded women approached the Civil Court again, where trial Court decreed the suits but the Appellate Court and the High Court dismissed the same. We are of the considered view that the learned Appellate Court and the High Court misread the evidence on record and they arrived at the erroneous conclusions.
9. In view of the above, we allow these appeals, set aside the judgments and decrees of the Addl. District Judge-II, Okara dated 25.2.1991 and that of the Lahore High Court dated 11.5.1994 and restore that of the trial Court with costs throughout.
(T.A.F.)                                                                              Appeal allowed.

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