Onus to Prove Transaction of Parda Nasheen Lady

Onus to Prove Transaction of Parda Nasheen Lady Case Laws Civil Law Gift Knowledge - Civil Law Litigation & Arbitration Pardha Nashin Lady Solutions - Civil Law Supreme Court Mr. Justice Dost Muhammad Khan in his judgment has decided the issue regarding onus to prove transaction of Parda Nasheen lady in Civil Appeal No.774 of 2013.

1. Through the instant appeal, the appellant, Phul Peer Shah has questioned the legality and legitimacy of the judgment dated 16.5.2013 passed by the learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby, Revision Petition No.100 of 2005 filed by the respondent, Mst. Hafeez Fatima was accepted and her suit was decreed after setting aside the judgments & decrees of the Trial Court dated 1.7.2004 and that of the District Appeal Court/ADJ Chakwal dated 26.10.2004.

We have heard Syed Qalb-e-Hassan Shah, learned ASC for the appellant and Barrister Imran Hassan Ali Chaudhry, learned ASC for the respondent and have carefully gone through the record, the impugned judgments of the Trial Court and the District Appeal Court as well as the evidence on record.

2. The epitome of the controversy is that the appellant claimed, having had purchased the suit property measuring 56-K,16-M in Patwar Circle ‘Choa Saiden Shah’ for sale consideration of Rs.2,60,000/- in presence of the witnesses i.e. DW-4 and DW-5 and that, the sale was given the colour of device of “Hiba-bil-Iwaz” to avoid of any pre-emption suit by the adjacent owners of the land.

3. Admittedly the respondent is a rustic old, illiterate widow and of reasonably advanced age. None of the witnesses of the so called sale transaction in any manner was acquainted with the lady much less related, rather they have close association and attachment with the appellant. It is alleged that the respondent lady reported the transaction to the ‘Moza Patwari’, who recorded the transaction in the ‘Patwari Daily Diary’ then mutation No.4021 was entered and it is further alleged that the same was attested by the Revenue Officer on 18.12.1993. In this way, the respondent lady was deprived of her entire land which was managed and cultivated by her tenants.

4. After getting knowledge of the said event, the respondent lady filed a suit on 31.10.1996 wherein she has alleged that naked fraud was committed upon her and in a fraudulent manner the land was transferred from her name without her consent, knowledge and will and without consideration and even if it is assumed to be so, then she is entitled to revoke the same. After filing written statements, contesting the suit by the appellant, the Trial Court held the trial on the wrong issues framed and then dismissed the suit. The same was the fate of the appeal filed by the respondent lady as stated above. However, the learned Judge in Chamber of the High Court set at naught both the judgments and decrees of the two courts below on the ground that the same were based on misreading and gross non reading of material evidence and mis and non-application of correct law to the established facts, causing serious miscarriage of justice.

5. Learned ASC for the appellant vehemently argued at considerable length that it is established principle of law that concurrent findings of two courts below be considered sacrosanct and not amenable to limited revisional jurisdiction of the High Court. He urged that no fraud was committed upon the respondent lady and because she has taken two divergent pleas, as in the first instance she has denied to have entered into any such transaction but in the same breath in paras- 16 and 17 of the plaint she opted to revoke the gift even if it is proved and this vacillating conduct of the lady speaks volumes about her conduct on account of self clashing pleas taken by her and thirdly, the appellant has established his case through overwhelming evidence by producing all the witnesses who were present at the time of initial transaction and then at the time of attestation of mutation, besides the revenue officer of the circle and the former ‘patwari’ who had entered the mutation and report in the ‘Daily Diary’, therefore, there was no occasion for the learned Judge in the High Court to interfere with the well reasoned judgments of the two courts below based on concurrent findings of facts, reached at after proper appraisal and re-appraisal of evidence on record. He also relied on the same case laws, which were cited before the learned Judge in the High Court during the course of arguments.

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