' The short background of these two second appeals (R. S. A. No, 537 of 1976 and R. S. A. No, 540 of 1976) to challenge judgment of learned District Judge disposing of two appeals arising from two suits for declaration filed by Fazal Haq respondent (1) is as below : ' On 1-3-1967 Mian Ghulam Muhammad appellant herein filed two suits (No, 79-80/67) to pre-empt two separate transactions for sale of land in favour of Maulvi Fazal Haq respondent (1) by one Faqiria resident of Chak Bhatti, Tehsil Hafizabad, District Gujranwala. Maulvi Fazal Haq respondent
(1) contested the suits and filed written statements through Ch. Muhammad Asad Advocate in whose favour regular powers of attorney (D-1-D-3) were also executed by the respondent (1). On 5-10-1968, the date fixed for evidence of Ghulam Muhammad appellant herein Muhammad Yaseen respondent (2), a real nephew and general attorney of Maulvi Fazal Haq respondent (1) made statement (D-2, D-3) before learned trial Judge in each of the two suits that he concedes pre-emptive right of the appellant subject to payment of Rs, 5,000 and 6000, the ostensible consideration in the two impugned sales. Mr. Muhammad Asad Advocate had also affixed his signatures underneath the statements of Muhammad Yaseen. Accordingly, the suits were decreed in favour of the appellant on payment of the above amounts. Shortly afterwards, viz, on 18-11-1968, Maulvi Fazal Haq respondent (1) filed two separate suits for a declaration that the decrees in the above said suits based on statement for compromise made by Muhammad Yaseen were a nullity in law and not binding on him. It was averred in the plaints that the appellant had not attended the Court on 5-10-1968. Muhammad Yaseen had not been authorised in the power of attorney (P. 1) to enter into compromise on behalf of the respondent. Mr. Muhammad Asad Advocate who had affixed his signatures on the statements (D-2, D-4) of Muhammad Yaseen recorded by the Court on the assumption that Muhammad Yaseen had the authority to effect compromise on behalf of the respondent (1). A further plea was also raised through an amendment in the plaint that sales in favour of respondent (I) were not pre-emptible in law. Ghulam Muhammad appellant contested the suits denying the allegations made by the respondent in the plaints that suits were compromised on the statements of Muhammad Yaseen. The appellant averred in para. 6 of written statements that offer for compromise had been made by the counsel representing the respondent in the said suits. Several issues arising from the pleadings were settled by learned trial Judge for decision of the suits. However, the parties abandoned all issues excepting No, 4 concerning validity or otherwise of decrees in favour of the appellant. The said issue reads as under :- "Whether the impugned judgment and decree dated 540-1968 passed by Mr. Abdul Karim Kundi, Administrative Civil Judge Gujranwala is null and void and not binding upon plaintiff for the reasons contained in the plaint."
2. Both sides examined evidence in Suit No, 341/68 which was with the consent of the parties read and used for disposal of the other case. (340/68) also. Mr. Manzoor Ahmed, Sardar Ali, Muhammad Yaseen and Mr. Muhammad Asad were called in evidence on the side of the respondent. The latter also entered the witness-box. Bashir Ahmed, a son and attorney of the appellant, was the only witness in rebuttal.
' Mr. Manzoor Ahmed (A. W. 1) who also functions as Notary Public stated that he had attested Exh. P.
1 power of attorney by Maulvi Fazal Haq respondent (1) in favour of Muhammad Yaseen. Sardar All (P. W. 2) stated that the power of attorney was written by Muhammad Hassan, a licensed petition- writer Hafizabad, since dead. Muhammad Yaseen (P. W. 3) had in his statement confirmed the allegation made by Maulvi Fazal Haq respondent that he did not have the authority to make compromise on behalf of the respondent in the suits decreed in favour of the appellant. Mr. Muhammad Asad Advocate (P. W. 4) whose evidence should play the decisive role in the case stated that he had at the instance of Muhammad Yaseen affixed his signatures under latter's statements recorded by the Court and he had merely attested the statements of Muhammad Yaseen. Mr. Muhammad Asad has further stated that he had told Muhammad Yaseen that if he accepts the offer for compromise he could have no objection. The respondent has in his statement reiterated the allegations made in the plaint. Bashir Ahmed (P. W. 1) says that the offer for compromise was made by Mr. Asad Advocate, counsel for the respondent in the said suits which he had accepted.
3. Learned trial Judge has held that Mr. Muhammad Asad had not exercised his own authority for a compromise on behalf of the respondent. It would have been unnecessary to record joint statement of Mr. Muhammad Asad and Muhammad Yaseen if the former had exercised bis authority. The statement of counsel alone should have been sufficient. The fact that he had affixed his signatures under the statements of Muhammad Yaseen leads to the inference that he did not want to take upon himself the responsibility for compromise in the cases. It is, therefore, clear that offer and acceptance of the impugned compromise had taken place between the attorneys of the parties without any intention on the part of Mr. Muhammad Asad to exercise his authority.
' The compromise must fail as Muhammad Yaseen had not been conferred the authority to compromise any suit on behalf of the respondent. Consequently, the suits were decreed in favour of respondent (1). Dissatisfied with the judgment of learned trial Judge, Mian Ghulam Muhammad defendant in the suits filed appeals before learned District Judge but without success. Learned District Judge agreed with the trial Court that Mr. Muhammad Asad bad put his signatures under the statements of Muhammad Yaseen (D-2, D-4) merely in token of their attestation without exercising his own authority to act on behalf of the respondent for a compromise in the suits.
4. I have been taken through record by learned counsel for the appellant. Admittedly, power of attorney (P. 1) executed by respondent (1) in favour of Muhammad Yaseen did not concede to him the authority to enter into compromise on behalf of the respondent. Unfortunately, this document was not brought on record when the suits were disposed of in terms of the impugned compromise.
The fate of the appeals hinges on the statement of Mr. Muhammad Asad Advocate.
5. It was argued on the side of the appellant that an Advocate duly appointed by the litigant under Order Ill, rule 4, C. P. C, is authorised by the latter to act on his behalf. The Advocate is perfectly within his rights to compromise or settle the suit without any express authority from his clien for the purpose. Reference in this behalf was made to the judgment in S. M. Qasim & Co. v. Azim-ud-Din (1). There is no dispute whatever with this proposition of law. Besides, according to D-2/D-3 Mr. Muhammad Asad had been conferred express authority to compromise on behalf of respondent (1). The two Courts below have held concurrently that Mr. Muhammad Asad had never exercised his authority for a compromise on behalf of respondent (1). The Advocate had merely attested the statement of Muhammad Yaseen who has said above had no authority to make compromise on behalf of Maulvi Fazal Haq respondent (1). This finding on a question of fact is binding and conclusive in second appeal. In feren drawn from facts is a question of fact and not of law.
Similarly, appreciation of evidence oral or documentary is also not a question of law. Such findings cannot be displaced in second appeal before High Court even though the findings may be grossly erroneous or the High Court may on p its own examination of the case come to have a different view. Learned counsel for the appellant concedes this view. However, he maintained with vehemence that the question whether Muhammad Mad had made statements for a compromise in the suits turns on construction of documents (D-2, D-4), copies of his statements in the said suits. Both Courts below had not construed correctly the above-said statements of Muhammad Asad. Misconstruction of document which forms basis of the claim by the parties, is a question of law and can be raised in second appeal. I am afraid, their argument does not succeed on the factual plan. I find myself in agreement with the view of the two Courts below that Mr. Muhammad Asad had not made statements but had merely attested the statements of Muhammad Yaseen.
The position becomes clearer by perusal of Exh. D. 4 which shows that Muhammad Yaseen alone had made the statement which was no doubt signed by Muhammad Asad. I am not impressed by the argument that the fact that Muhammad Asad had also signed the statement was reasonably susceptible of the view that he had made a joint statement with Muhammad Yaseen. Evidence on record does not leave any room for more than one opinion that Muhammad Yaseen had made the statement, accepting the terms of compromise and Muhammad Asad had not exercised his power or authority as counsel for Maulvi Fazal Haq respondent. The principle laid down in the judgment of Privy Council cited as AIR 1935 P C 119 had been correctly applied to this case by the Courts below.
6. In view of what I have said above I hold that findings of fact of two Courts below were not open to challenge in second appeal and the findings were even otherwise well supported by evidence on record. With costs. PLD 1962 Lab. 95