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First Civil Appeal No. 13 of 1980, decided on 10th November, 1986.

‑‑S. 54‑‑Contract Act (IX of 1872), S. 2(b)‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 118‑‑Transaction by illiterate Pardanashin lady‑‑Burden of proof‑‑To prove transaction of sale‑deed by an illiterate Pardanashin lady, burden that same was duly executed by such lady after having understood the transaction, held, would be on vendee‑‑In absence of such proof and fact that the alleged executant was still in possession of property burden to prove execution thereof would not be discharged.

‑‑‑S. 96‑‑Findings of Trial Court‑‑Interference by Appellate Court‑ Requirements‑‑Conclusions of trial Court based on unrebutted evidence on record, held, could not be interfered with in appeal.

‑‑‑S. 96 & 0. XLI, Rr. 24, 25 & 27‑‑Transfer of Property Act (IV of 1882), S.54‑‑Execution of sale‑deed‑‑Additional evidence‑‑Production of‑‑Remand of case‑‑In absence of request for production of additional evidence and non‑mentioning in evidence of names of witnesses or scribe of document before whom executant was stated to have signed document, case, held, could not be remanded to Trial Court for recording of further evidence.

Shaikh Haider for Appellant No. 1.

S. Zaki Muhammad for Respondent.

Date of hearing: 10th November, 1986.

This first appeal under section 96, C . P . C . has been filed by the defendant‑appellant against the judgment and decree passed by the IVth Senior Civil Judge and Assistant Sessions Judge, Karachi in Suit No. 11 of 1976. The admitted facts of the case are as follows:‑

The respondent who is the owner of Plot No. R‑15 Block 18, Federal 'B' Area, Karachi measuring 120 sq. yds. mortgaged the above property with the appellant No. 1 by a registered deed Exh. 5/B on the record. The mortgage was for a sum of Rs.6,000. It is also an admitted position that on 7‑6‑1974 a deed of redemption was executed by the appellant No. l in favour of the respondent redeeming the property from the said mortgage. The respondent instituted the above suit on the allegation that the alleged sale‑deed executed on 7‑6‑1974 in the Office of Sub‑Registrar 'T' Division, Karachi and registered at No. 4882 at pages 61 to 62 Volume 952 Book No.l Additional is a forged document as respondent never entered. into any agreement of sale or executed the sale‑deed in favour of the appellant No.2. It was further alleged in the plaint that the said deed was executed simultaneously alongwith redemption deed which was registered on the same day and, therefore, she prayed in the suit that the said deed may be cancelled and or in the alternative declared to be void ab initio. It is specifically alleged in the plaint filed by the respondent that she is a Pardanasheen lady and cannot read or write any language except signing her name. This statement made by the respondent in the plaint is not disputed in the written statement by the appellant. The defence taken by the appellants jointly before the Court below was that the property which was mortgaged with the appellant No.l was later on agreed to be sold by respondent in favour of the appellant No.2 for a sum of Rs.30,000. According to the receipt alleged to have been executed by respondent (Exh.8/B) the sum of Rs.30,000 was allegedly paid to the respondent by the appellant on 31‑5‑1974 whereas the sale‑deed was executed on 7‑6‑1974. In her evidence before the Court the appellant No.l stated that she adjusted the sum of Rs.6,000 out of sale consideration which was agreed to be paid to the respondent towards the sale price of the house in dispute and that she paid a sum of Rs.24,000 before the Registrar at the time of execution of the sale‑deed. It was also the case of the appellants that the possession of the property was handed over to them at the time of execution of sale‑deed but this fact was denied by the respondent and the admitted fact in the case is that till today the respondent is in possession of the disputed property. It is also an admitted position that neither any attesting witness of the document nor the scribe nor the Advocate who allegedly identified the parties before the Registrar was produced. In this state of evidence and keeping in view of fact that it is an admitted position that the respondent is an illiterate Pardanasheen lady the burden of proving that the sale‑deed was duly executed by the respondent after having understood the same was entirely on the appellants which they failed to discharge. The learned trial Court after discussing the evidence led by the parties reached the conclusion that the appellants have failed to establish the execution of the sale‑deed by the respondent and after hearing the learned counsel for the parties, I am also of the view that no exception can be taken to the conclusion arrived at by the learned trial Court. Learned counsel for the appellants contended that as the evidence in the case is highly unsatisfactory it will be in the interest of justice that the case may be remanded back to the trial Court for allowing an opportunity to the parties to lead further evidence on the issues framed in the case. I am afraid, the course suggested by the learned counsel for the appellants cannot be followed in the present case as neither there is any request before me for allowing any additional evidence in the case nor the appellant in her evidence before the Court mentioned the names of the scribe or the witness before whom the respondent allegedly signed the document. In these circumstances, I am not inclined to remand the case back to the trial Court for recording of further evidence. No case for interference is made out. The appeal is accordingly dismissed but there will be no order as to costs.

H . B . T . /5135/ K Appeal dismissed.

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