DEEDAR AHMED Versus COOPERATIVE ENGINEERS LIMITED

This matter, which was originally instituted as a civil revision, vide interim order, dated 21‑1‑1978, seemed to have been converted into an appeal against the order, dated 8‑10‑1977, which arose in the following circumstances:‑

2. Mst. Saleema Bibi, the appellant herein, had brought a suit against Elahi Bakhsh defendant‑respondent No.1and two others, seeking a declaration regarding her title in respect of 13 Kanals 7 Marlas on account of the daughter of Elahia (deceased), to whom this land originally belonged. She averred that on the death of her father Elahia, she alongwith his sister Mst. Kajoo (defendant‑respondent No.2) and his widow Mst. Karamat Bibi (defendant respondent No.3) had succeeded to his entire estate measuring 13 Kanals 7 Marlas but Elahi Bakhsh defendant‑respondent, in collusion with the revenue staff, got 7/16th share of the estate transferred in his own name as his collateral. She alleged that Mst. Kajoo and Mst. Karamat Bibi defendants respondents had later alienated their respective shares to her by way of gifts and she became the sole owner of the entire land measuring 13 Kanals 7 Marlas left by her father. In short she challenged the validity of the mutation granting 7/8th share of the suit land to Elahi Bakhsh defendant‑respondent.

3. The suit was contested only by Elahi Bakhsh defendant‑respondent who asserted the correctness of the inheritance mutation on the basis of his collateral ship with the deceased. The suit was ultimately decreed in favour of the plaintiff‑appellant in its entirety and Elahi Bakhsh defendant‑respondent took an appeal to the Court of District Judge, Sheikhupura.

4. It appears that during the pendency of the appeal the parties allegedly effected a compromise on 9‑10‑1974 with the intervention of the elders of the village and a written compromise (Exh.A.1.) was filed in the Court of learned District Judge, Sheikhupura, on the same day and requested for the decision of the appeal in terms thereof. The learned District Judge did not accede to their request and directed them to appear on the date already fixed in the appeal. On that day Mst. Saleema Bibi plaintiff‑respondent resiled from the terms of compromise on the ground that her thumb impression had been obtained fraudulently by her opponent after giving out that he was to withdraw the appeal and she did not agree to forego her claim with regard to any portion of the disputed land.

5. Elahi Bakhsh defendant‑respondent, on the other hand, asserted the correctness of the compromise and insisted for acting upon it. The learned District Judge, in view of the conflicting assertions of the parties, framed the following issue:‑

`Whether the matter has been lawfully compromised between the parties'?

6. He directed the parties to produce evidence and Elahi Bakhsh defendant‑respondent produced Amanat Ali Shah, a deed‑writer as (A.W.1), who by way of‑secondary evidence deposed that the document in question (ExhA‑1) had been written by Bakhtiar Ali deed‑writer, who was dead and whose handwriting he duly identified. He also produced extract of the relevant entry (ExhA‑2) of the register of deed‑writer. Muhammad Din (A.W.2), appearing as a marginal witness of the compromise (ExhA‑1), testified that it had been written in his presence at the instance of the parties, including Mst. Saleema Bibi plaintiff‑appellant, who had thumb marked it. Elahi Bakhsh defendant‑respondent himself appeared as (A.W.3).

7. In rebuttal of this evidence, Jalal Din, the husband of Mst. Saleema Bibi plaintiff‑appellant, appeared as (D.W.1). He denied that his wife had ever entered into any such compromise with her opponent or she had ever thumb marked the compromise (ExhA‑1). She produced no other evidence.

8. The learned Additional District Judge, to whom the appeal was later transferred for decision, vide the impugned judgment and decree, dated 8‑10‑1977, came to the conclusion that the compromise (ExhA‑1) had rightly and genuinely been entered into by Mst. Saleema Bibi plaintiff‑appellant with Elahi Bakhsh defendant‑respondent by which she had foregone her right in respect of a portion of suit land measuring 4 Kanals 9 Marlas as comprised in Killa No.23/1 in rectangle No.55 as against 5 Kanals 17 Marlas written in the compromise deed (Exh.A‑1). He was of the view that in oral evidence, which he believed as true, and even from the entry of (Exh.A‑2), it stood established that the area to be left out for the defendant‑respondent was 4 Kanals 9 Marlas and not 5 Kanals 17 Marlas out of the suit land. He, therefore, modified the judgment and decree of the trial Court which had decreed the declaratory suit of Mst. Saleema Bibi to the extent of entire suit land measuring 13 Kanals 7 Marlas. In other words, he granted her decree to the extent of 8 Kanals 18 Marlas.

9. Aggrieved by these findings she came up in revision to this Court which, as already observed, was converted into an appeal.

10. It was argued on behalf of the plaintiff‑appellant that she was an illiterate lady and onus heavily lay on her opponent to prove that she had correctly understood the terms and conditions of the compromise entered into by them but he could not discharge his onus. It was contended that the oral evidence led by him was quite different from the contents of the compromise (ExhA‑1) so far as the area of the land was concerned and it was not permissible to supplement, vary or modify the contents of document by oral evidence.

11. On the other hand, it was argued on behalf of the defendant respondent that the compromise was lawfully entered into by the parties with the intervention of the elders of the. brotherhood and the learned Additional District Judge. after recording the evidence of the parties, had rightly come to the conclusion that it was a genuine document. According to the learned counsel, Mst. Saleema Bibi defendant‑appellant did not dare to enter the witness‑box to assert the invalidity of the document and to face the cross -examination of the opposing counsel on this point.

12. The secondary evidence led by the defendant‑respondent to prove the execution of the compromise coupled with the statement of its marginal witness was sufficient to shift his onus to the opposite party but the opposite party could not lead any reliable evidence in rebuttal. Mst. Saleema Bibi plaintiff‑respondent purposely avoided to enter the witness box to appear as her own witness and only produced her husband to depose for her. This was not enough. Her non‑appearance had a far reaching adverse effect on her case and she had to fail. No doubt, there was some confusion about the area of the land stated in the compromise but that was amply clarified by the learned Additional District Judge in the impugned judgment with which no default can be found. There is, therefore, no substance in the appeal and the same is dismissed.

AA./S‑71/L Appeal dismissed.