RIAZ HUSSAIN Versus 6LAZARAY KHAN

ORDER

The relevant facts forming the backgrounds of this case are that one Nasrullah father of the present petitioner filed suit for possession of land through pre‑emotion, against the respondent Mazaray Khan. In this suit, both the parties entered into compromise and a decree was passed on 13‑12‑1955. In the statement made by respondent Mazaray Khan, in the said suit before the Court, regarding compromise conceded the suit of the plaintiff and admitted to have received from the plaintiff the entire amount of consideration and nothing was due from him and that Zare Panjam may be withdrawn by the plaintiff. On this statement, the said Court passed decree for possession of land through pre‑emotion in faovur of said Nasrullah in which t was also recorded that the defendant had received the entire Zare Samman and that the amount of Zare Panjam deposited would be withdrawn by the said plaintiff. This statement and the order passed thereon by the said Court in the said suit was produced in evidence as Exh.P.6. It has been admitted by learned counsel for the petitioner that the said decree was not executed through Court and said Nasrullah gifted the land to the present petitioner who is his son and mutation bearing No. 563 was sanctioned in favour of the petitioner on the basis of the said gift which was shown to have been made by Mazaray Khan because in the revenue record the name of Mazaray Khan was still continuing and had not been substituted by the name of Nasrullah.

2. Learned counsel for the petitioner in order to complete the narration of facts submitted that said Nasrullah died on 11‑5‑1963. Mazaray Khan filed a suit for declaration that mutation on the basis of gift aforementioned was without consideratin and was not effective against his rights in the land. In that suit Mazaray Khan took the plea that he never received Zare Samman from Nasrullah in the suit of pre‑emotion filed against him and if the defendant who is now the petitioner afterward proved that he had received Zare Samman as a matter of fact, his said suit filed by him in respect of gift should be deemed to have been dismissed and he shall have no concern with the disputed land. To this effect, his statement was recorded by the Court and since the present petitioner who was defendant in the said suit was a minor, therefore, the said Court recorded express order that the compromise was in the interest of the minor, therefore, it was allowed to be entered into. After allowing the said compromise the said Court passed a compromise consent decree on 30‑11‑1965 to the effect, that Mazaray Khan plaintiff having deposed on oath that he had not received Zare Samman and that if afterward it was proved that he had received Zare Samman then his suit shall be deemed to have been dismissed, therefore, a decree was passed to the effect that Mutation No. 563, dated 25‑6‑1962 against the rights of the plaintiff Mazaray Khan was ineffective and a decree against the defendant/ present petitioner was passed on the condition that if the present petitioner afterward proved that Zare Samman was received by the plaintiff Mazaray Khan in that suit then his suit shall be deemed to have been dismissed. This decree has been produced as Ex. D.4 in the evidence whereas the copy of the Court proceedings containing the abovementioned statements of the parties regarding compromise has been produced as Exh.P.7. It appears that on the basis of the said decree respondent Mazaray Khan got Mutation No.1158 sanctioned in his favour on 29‑6‑1972. The present petitioner then filed the present suit from which the present revision petition has arisen for a decree for declaration that he was owner of the land and that decree passed in the said suit of Mazaray Khan on 30 11‑1965 and Mutation No. 1158 passed on the said basis on 29‑6‑1972 being illegal were ineffective against the rights of the plaintiff. The suit was contested by the respondent and on the pleadings of the parties the learned trial Court framed the following issues:‑

(1) Whether the suit is hit by the principle of res judicata?

(2) Whether the judgment in Suit No. 546 of 30‑11‑1965 is conditional? If so, whether that condition goes in favour of the plaintiff?

(3) If issue No.3 is proved, what is the effect?

(4) Relief . the learned trial Court dismissed the suit by judgment and decree, dated 9‑1‑1986 which held under issue No.l, that according to the decree passed in favour of Mazaray Khan on 30‑11‑1965 which has been noticed above, the suit was hit by principle of res judicata excepting that the petitioner as per terms of this decree could lead evidence that Mazaray Khan had as a matter of fact received Zare Samman in order to establish that the said suit could be deemed to have been dismissed. Under issue No.2 it was held that decree, dated 30‑11‑1965, clearly indicates that it was subject to a condition that if the petitioner proved that Mazaray Khan had in fact received Zare Samman the said suit could be treated as having been dismissed, therefore, it was held that the said decree was conditional. Issue No.3 has been decided against the petitioner under which it has been concluded that the petitioner has not proved that the respondent No.l received Zare Samman. The stand taken by the petitioner was that the Zare Samman was paid in the form of wheat and a camel which was not believed by the trial Court, and as against that, the stand taken by the respondent and evidence led by him was given credence and the suit was dismissed. The petitioner feeling aggrieved filed appeal before the learned lower appellate Court which has also been dismissed on 11‑7‑1987 wherein findings of the trial Court have been upheld. The petitioner has challenged both the judgments and decrees in this revision petition.

3. Learned counsel for the petitioner argued that Exh.P.6 which is the copy of statement of Mazaray Khan defendant in the suit for pre‑emption in which he admitted to have received Zare Samman has not been considered by the Courts below and in the presence of this statement by Mazaray Khan it was not necessary for the petitioner in the first instance to lead any other evidence for proving the payment and Courts below could not in the presence of the said statement hold that payment of Zare Zamman was not proved. He maintained that decree Exh.P.6 was binding on the parties, therefore, the Courts below could not record any findings contrary to the findings recorded in the said decree about payment of Zare Samman. He also urged that the petitioner who was born on 8‑12‑1961 was a minor when a compromise decree was passed in the suit filed by Mazaray Khan challenging mutation of gift in favour of the petitioner, therefore, decree, dated 30‑11‑1965 should not have been construed to nullify the decree passed in pre‑emption suit i.e. Exh.P.6. Learned counsel also endeavoured to argue that Mazaray Khan respondent himself did not enter the witness‑box to make statement that he received Zare Samman as it was a matter within his personal knowledge and his non‑appearance was sufficient to raise presumption, against him as has been held in judgment reported as Choithram v. Khemchand and others A I R 1929 Sind 7.

4. On merits of the case, learned counsel for the petitioner stated that payment of Zare Samman was proved through oral evidence of P.W.1 and P.W.2, in the form of camel and wheat which evidence should have been believed for Mazaray Khan having not appeared in the witness‑box himself and as such the said evidence shall be deemed to have remained unrebutted.

5. I have considered the arguments. I have not been able to persuade myself to accept the same. Decree Exh.P.6 which is then mainstay of the case of the petitioner is merely a consent and a~ compromise decree and under the law it has no better legal status than agreement between the parties, but of course with authority of the Court supperadded to it. Decree, dated 30‑11‑1965 passed in the suit of Mazaray Khan which he filed against the petitioner challenging A mutation of gift in his favour having also been passed on the basis of comromise and agreement between the parties, therefore, similarly can safely be concluded to be an agreement. Decree, dated 30‑11‑1965, being an agreement later in time therefore, shall be deemed to be an agreement by which the parties intended to modify and supersede the previous agreement embodied in Exh.P.6 which has the legal effect of doing away with legal consequences flowing from admission of Mazaray Khan having received the entire price as contained therein and the said matter was agreed to be proved afresh by the present petitioner. Needless to add, that the petitioner is a person who is claiming the land through Nasrullah his father who was party in the pre‑emption suit and in whose favour the said admission was made and with whom the said agreement was entered into, as such the petitioner's position was not independent and different from that of Nasrullah and as such was very much competent to enter into another agreement modifying the previous one in the same manner as Nasrullah could himself do. The decree, dated 30‑11‑1965 was passed against the petitioner after granting permission by the Court to enter into said agreement on behalf of the petitioner who was minor for which express order was passed, therefore, the petitioner could not avoid the said agreement in substitution of the original agreement Exh.P.6 on the ground that he was minor.. As a matter of fact, the non‑receipt of Zare Samman by Mazaray Khan at the time when he made statement the pre‑emption suit stands impliedly admitted by the fact that in the instant suit the petitioner led evidence that as a matter of fact the Zare Samman was paid in the form of camel and wheat through P.W.1 and P.W.2 which is sufficient to raise a presumption that he had not received Zare Samman at the relevant time when he made the said statement in the pre‑emption suit as incorporated in Exh.P.6. By decree, dated 30‑11‑1965 obtained by the petitioner on the basis of compromise this matter was again reopened and the question of receipt of Zare Samman by Mazaray Khan was required to be again proved. The contention that Mazaray Khan has not appeared himself in the witness‑box has no force inasmuch his general attorney appeared for him and in civil proceedings it is permissible to appear before the Court and give evidence through attorney. The statement of Fateh Khan as general attorney of Mazaray Khan recorded by the trial Court shows that he denied suggestion put to him that he did not know anything about the case. Copy of statement of Fateh Khan also shows that he was not put any suggestion that Zare Panjam stood paid as alleged. Mazaray Khan general attorney should have been cross‑examined in the same manner and to the same extent taking as if Mazaray Khan himself was appearing because that statement of Fateh Khan was as his general attorney. Had these questions been put to Fateh Khan and if in response to the same he had pleaded ignorance on account of said facts being in personal knowledge of Mazaray Khan, then of course there would have some chance to argue that non‑appearance of Mazaray Khan was fatal in order to apply the reported judgment referred to by the learned counsel for the petitioner as noted above. The question as to whether Zare Samman was actually paid or not cannot be held to be such a matter about which only Mazaray Khan could know and he could not give evidence about the same through his‑ general attorney. Even otherwise, had the petitioner raised any objection at the relevant time and insisted on that Mazaray Khan himself should have appeared he would have had an opportunity to meet the object or could have appeared himself. This objection at this stage appears to be an afterthought and cannot be accepted as a valid ground for setting aside the concurrent findings of facts. The petitioner produced P.W.1 and P.W.2 to prove payment of Zare Samman to Mazaray Khan against which the respondent also produced evidence in rebuttal. The Courts below after appraisal of evidence have accepted the version of the respondent and did not accept the evidence of the petitioner. It was well within the jurisdiction of the Courts below to accept one set of evidence against other provided that if no evidence was kept out of consideration, misread or mis construed. It may not be over‑emphasized that according to compromise decree Exh.D.4, dated 30‑11‑1965, the onus to prove payment of Zare Samman was on the petitioner which has been held to have not been discharged by the petitioner.

6. The concurrent findings of facts recorded by Courts below have not been shown to have suffered from any irregularity and illegality either on account of misreading, misconstruction or keeping out of consideration any evidence produced on the record. No case has been made out for interference by this Court under section 115, C.P.C. with the judgments and decrees of both the Courts below. The revision petition fails which is hereby dismissed in limine.

A.A./R‑74/L Revision dismissed.