ASHIQ H USSAIN SHAH Versus SABAN

ORDER

This and the connected Civil Revision No. 120/ D of 1988 arise respectively out of two suits filed by the parties. The petitioner filed a suit on 18‑5‑1983 for specific performance of an agreement (Exh.P.l) alleged to have been executed in his favour on 19‑2‑1983 by the respondent and she brought a suit on 10‑4‑1984 for declaration of invalidity of the same agreement for the reason of its being void on account of coercion and fraud practiced upon her. By way of consequential relief, she also prayed for a decree of possession of the relevant land measuring 10 marlas situated in village Shahpur, Tehsil Kamalia, District Toba Tek Singh being passed in her favour. Both the suits were consolidated in the trial Court on account of similarity of question of law and fact involved in them and even the two appeals brought in the District Court were decided together by means of a consolidated judgment, therefore, these civil revisions have also been heard together and this order will deal both of them.

2. The facts forming the background of this litigation, to be briefly stated, are that the petitioner Syed Ashiq Hussain was the original owner of the 10 Marlas land in suit which he had sold out to the respondent Mst. Sahban somewhere in the year 1982 for a consideration of Rs.7,000. Then, he brought the present suit on 18‑5‑1982 for specific performance of the agreement, dated 19‑2‑1983 and, simultaneously, prayed also that in the alternate a decree for payment to him of Rs.17,000 may he passed against the respondent. He alleged that she had undertaken to sell this land to him for a consideration of Rs.8,500 and had also executed an agreement on 19‑2‑1983 in his favour upon receiving the entire consideration under the promise that she will get the land transferred in his name under the pain of having to pay to him Rs.17,000 in the event of her failure to do so. On these averments, while claiming specific performance of this agreement, the petitioner also claimed in the alternate for a decree for payment of Rs.17,000 being passed in his favour by way of refund of Rs.8,500 (the original consideration received by her) with an additional sum of Rs.8,500 as the penalty for infringement of the agreement. This suit was contested by the respondent by denying the averments made in the plaint and it had made quite a head‑way when the respondent filed her suit on 10‑4‑1984 with the assertions that the petitioner being an influential Zamindar of the Ilaqa had put her under undue pressure and had secured her thumb‑impression on the agreement in dispute by frightening her. Petitioner contested her suit by reiterating validity of the agreement relied upon by him. A total of five issues including that of the relief had been set down for trial in the suit of the petitioner and, after consolidation of the two suits, two more issues bearing Nos.4‑A and 4‑B were framed to respectively determine the genuineness of the agreement in dispute and her entitlement to the grant of special costs. Parties led their evidence, upon the consideration whereof learned trial Judge held the agreement to be valid and liable to be specifically performed. In consequence, by his judgment, dated 3‑2‑1987, he passed a decree for specific performance in favour of the petitioner and dismissed the suit of the respondent, Mst. Sahban.

3. There were two appeals filed thereagainst by Mst. Sahban in the District Court to challenge the respective decrees passed by the trial Court. Therein, learned District Judge reconsidered the entire evidence to form the opinion that the agreement in question is not genuine for the reason that there was no reliable evidence led with regard to any understanding having ever reached between the parties for transfer of the land to the petitioner and onus of proof being heavy on him to prove the due execution of the agreement at Peer Mehal by a petition writer named Kh. Muhammad Dildar who had, however, not been brought to the witness‑box and instead two witnesses of the petitioner's own choice belonging to adjoining Chaks were made the witnesses against the residence of the lady being in village Shahpur in Tehsil Kamalia where the land in dispute was also situated but there was no one from that village to have witnessed the agreement EX.P.1. He also took notice of the petitioner's assertion that the defendant and her husband Nathu had both accompanied him for execution of the agreement at Peer Mehal and disbelieved it for the reason that‑he was not made to scribe to the agreement which was rather unusual inasmuch as the two marginal witnesses of the agreement were the residents of different villages at the distances of four and two miles each. For these and a number of other similar reasons set out in detail in his judgment, learned District Judge proceeded to discard their evidence and since he was dealing with a document allegedly executed by an old and illiterate lady and there was no evidence available at all with regard to any understanding ever reached between the parties for the transfer of the land to the petitioner and muchless any with regard to her having had the opportunity of availing herself of independent advice, he upheld her assertion with regard to her having been forcibly abducted away to have the agreement prepared under coercion. Learned District Judge also took notice of the attending facts and circumstances, namely, that the land in dispute had become valuable inasmuch as the petitioner had himself admitted it to have become worth Rs.25,000 to 30,000 on account of its proximity to a patrol pump wherein he had firth share and he may have hence been tempted to somehow secure back the land to himself. He even made a pointed reference to the contents of the agreement for the reason that there was no money at all paid in the presence of the petition‑writer and it was rather stated therein that the entire amount of Rs.8,500 had been received by her and even the possession of the suit land had been delivered, therefore, the sequence of events tended to show that this, if at ail, may have happened before the execution of the agreement in the village itself and if this could be a true averment voluntarily made by her then, it was beyond comprehension as to why a registered sale‑deed may not have been secured by the petitioner to have instead got only an agreement to sell written out despite the fact that those averments clearly amounted to an out and out sale and not to a mere agreement. In consequence, learned District Judge was persuaded to accept the version of Mst. Sahban and in result, by his judgment, dated 23‑5‑1987, he accepted both the appeals into dismissing the suit of the petitioner and decreeing the one filed by Mst. Sahban with costs by setting aside the judgment and decrees passed by the trial Court.

4. These two revision petitions have been brought to assail the respective decree passed in the appeal below. Learned counsel argues that the appellate judgment stands vitiated on account of misreading of evidence and has in this behalf pointed to the statement of Zahoor D.W.2 which, in his view, was entitled to be accepted inasmuch as a statement appears in his cross‑examination to the effect that the land had been sold for Rs.8,500.

The assertion with regard to the misreading of evidence is clearly incorrect inasmuch as learned District Judge has duly attended to that statement in paragraph 5 of his judgment and has refused to attach any importance to the portion of the statement now relied upon by the learned counsel which is not only preceded by the unequivocal statement that the witness did not have knowledge of the sale but also there are the unambiguous statements made by him in the earlier parts that the area had not been sold by her. It is the privilege of an appellate Court to appreciate the evidence existing on the record to come to a conclusion different from the one reached by the trial Court and questions of mere appreciation of evidence cannot entail interference in exercise of revisional jurisdiction. Although there is no illegality or disregard of any principle of appreciation of‑evidence involved in the one‑made by the learned District Judge, yet, the contention raised cannot be given effect to for the reason also that the statement of a witness is not liable to be read out of its context nor are the other parts of the same statement capable of being disregarded to pick out only one part thereof for the disposal of a lis and moreso when such a statement cannot be equated with an admission in law. In Jlal Din and another v. Nawab and others A I R 1941 Lah. 55 it was observed as under:‑

"There is no rule of law that a party must be bound by the statement of his witnesses, though the belief in such a rule is ‑not uncommon and does great harm in judicial trials in some of the subordinate Courts."

5. The next argument of the learned counsel relates to the assertion with regard to forcible abduction of the respondent and the execution of the agreement having been brought about under coercion which, in his view, is an afterthought for the reason of her failure to raise such a plea in defence of the suit of the petitioner and was hence liable to be discarded. A reference to the written statement filed by the respondent in the suit of the petitioner manifests that she has therein clearly denied the relevant paragraph 2 of the plaint as being incorrect and based on misstatement. Learned counsel has not been able to lay hand upon any law enjoining that in the presence of such a pleading further averment of attending facts was also necessary to be made and his reliance may, at best, be on the provisions of Order VIII, Rule 3 of the C . P . C . which merely enjoin that every allegation of fact of which a defendant does not admit the truth must be dealt with specifically to be denied. Written statement of the respondent makes a due compliance of this provision of law and even otherwise when a matter is put to issue and burden of proof and disproof is taken upon themselves by the parties, they cannot be` allowed to fall back upon the rule of implied admissions. Hence, this is contention also fails.

6. No other point has been argued before me. Actually, this dispute gets concluded with the findings of fact reached in the appellate Court below which is the final authority with regard thereto. There is no error of jurisdiction involved in the impugned judgment and decrees‑ and hence, there does not exist any case for exercise of revisional jurisdiction. In result, both the civil revisions are dismissed in limine.

M . B . A . / A‑274 / L ???????????????????????????????????????????????????????????????????????? Revisions dismissed.