MASOOD AHMED SHEIKH, J.--- The titled appeal with leave of the Court arises out of the judgment and decree of the High Court dated 13.6.2014, whereby the appeal filed by Zahoor Ahmed, appellant, against the judgment and decree passed by the District Judge, Mirpur dated 28.5.2003, has been dismissed.
2. The background of the case is that one Raj Muhammad, father of Zahoor Ahmed appellant, herein, on 28.3.1992 filed a suit in the Court of Sub-Judge Mirpur against respondent for declaration and cancellation of compromise-deed made/recorded by him in favour of the respondent on 5.12.1991. It was alleged in the plaint that the disputed land measuring 2 kanal, 8 marla, 7 sarsai, out of land measuring 6 kanal, 15 marla, along with a house built over it, comprising 3 rooms and courtyard including the share in Shamilat situate at Mozia Boha, Tehsil Mirpur is in the ownership and possession of the plaintiff and the defendant-respondent has no concern with the same. It was further averred that the defendant-respondent had actually obtained the suit land on lease and he brought him for execution of the lease-deed but instead of execution of the lease-deed, the defendant fraudulently got a gift-deed written in his favour. The plaintiff is still in possession of the land and the house constructed over it. He also alleged that the plaintiff challenged the said gift- deed on 14.2.1987 before the Court of Sub-Judge Mirpur by filing a civil suit for declaration and cancellation of gift-deed as it was obtained in the garb of lease-deed. The suit was decreed in favour of the plaintiff vide judgment and decree of the trial Court dated 30.12 1989 in file No,59/Civil.
Feeling aggrieved from the judgment and decree dated 30.12.1989, Muhammad Siddique, defendant-respondent filed an appeal before the District Judge Mirpur. During the pendency of the appeal before the District Judge, Muhammad Siddique, respondent, contacted the plaintiff and he requested that he will withdraw the appeal if the plaintiff compromises with him. The defendant, on 5.12.1991, took the plaintiff before the Deed-Writer and asked the plaintiff to place his thumb impression on the deed as the deed is a compromise-deed with the promise that he will withdraw the said appeal. On the assurance of the defendant-respondent, the plaintiff affixed his thumb impression on the alleged compromise-deed and for the purpose the defendant-respondent took the plaintiff before the Clerk of the District Judge, where the defendant-respondent succeeded to get entered his thumb impression. The plaintiff alleged that the contents of the said deed were never recited to him. The deed was kept secret from the plaintiff. The plaintiff presumed that the defendant-respondent had withdrawn his appeal but after some days it was transpired in the village that the plaintiff has withdrawn from his right in the suit land in favour of the defendant.
Then, it came in the knowledge of the plaintiff that the defendant has obtained the compromise deed fraudulently and deceitfully and got decree in his favour on 30.12.1991. Consequently, the alleged gift-deed was restored by the District Court in favour of the defendant by cancelling the judgment and decree of Sub-Judge on 30.12.1991. All these facts were also kept secret from one of the marginal witnesses namely Muhammad Shabbir. He further alleged that there was no reason to transfer the suit land without consideration amount by the plaintiff in favour of the defendant. In his plaint, the plaintiff requested for cancellation of the compromise deed. The plaintiff also relied on the affidavit, of marginal witness and his own affidavit annexed with the plaint. The respondent in his written statement raised preliminary objection that the suit is time barred; filed without any cause of action and the Sub-Judge has no jurisdiction to decide the matter, and denied the contents of the plaint. The trial Court after framing issues and further necessary proceedings, dismissed the suit for want of proof through judgment and decree dated 18.8.1998. Feeling dissatisfied from the said judgment of the trial Court, the plaintiff filed an appeal before the District Judge, Mirpur on 14.9.1998 which was dismissed vide judgment and decree dated 28.5.2003. The said judgment and decree, by way of second appeal, was challenged before the High Court on 28.8.2003, which met the same fate through the impugned judgment and decree dated 13.6.2014.
Hence, this appeal by leave of the Court.
3. Mr. Khalid Yousaf, Advocate, the counsel for the appellant argued that the judgment and decree of High Court as well as the Courts below is against law and the record. He has argued that the suit was filed for declaration and cancellation of compromise deed dated 5.12.1991. He maintained that although the lower Court and the High Court have passed the concurrent findings but these findings are suffering from misreading and non-reading of evidence/record available. He has further maintained that the suit property is still in possession of the present appellant but the trial Court and the appellate Court has not considered the issue of possession which is an important factor in the case. He pressed that despite the fact the respondent-defendant has not denied the possession of the appellant on the suit property, but the trial Court has failed to appreciate it on the basis of pleadings and evidence. The defendant-respondent, in his written statement evasively denied the possession. The lower Courts have not written even a single word regarding the possession whereas, the plaintiff has categorically stated in his statement that he is still in possession of the suit property existing in shape of dwelling house. He further maintained that the defendant-respondent himself or his witness neither appeared in the Court nor rebutted the evidence of the appellant in the trial Court. He has further stated that the Burden of proof of issue No,3 was wrongly framed by the trial Court. The learned counsel further maintained that the witnesses in the suit of the appellant Muhammad Bashir, who was also a witness of the compromise has filed an affidavit and categorically supported the version of the appellant in his statement before the trial Court but the same remained un-rebutted in cross-examination. The learned counsel has relied upon case law reported as Akhtar Khan and 9 others v. Sarwar Khan and 12 others (2003 YLR 2812) Muhammad Rasheed and another v. Muhammad Bashir and another (2009 SCR 237) and requested for setting aside the concurrent findings of the lower Courts. In support of point of issue, he relied upon case law reported as Muhammad Sharif Khan v. Mirza Fazal Hussain and others (1993 SCR 88).
4. While controverting the arguments of the learned counsel for the appellant, Mr. Muhammad Reaz Alam, Advocate, the counsel for the defendant-respondent forcefully defended the impugned judgment of the High Court. He argued that the Trial Court, first appellate Court and the second appellate Court have decided the case on merit. He has brought our attention towards paragraphs Nos,2, 4 and 5 of the plaint and stated that the plaintiff-appellant has not taken the point of possession in his plaint. He maintained that the plaintiff has admitted the compromise deed and the thumb impression affixed over it. The learned counsel further argued that there are concurrent findings of the facts and law which cannot be disturbed or interfered with by this Court. The plaintiff was obliged to prove his case before the trial Court, but he failed to substantiate his version. No misreading or non-reading of evidence has been pointed out by the appellant. In fact the appellant has no case. The judgment of the High Court as well as the Courts below is correct, therefore, the appeal filed by the plaintiff-appellant is liable to be dismissed.
5. We have heard the learned counsel for the parties and also gone through the record minutely.
Without dilating upon the other issues of the case, we are inclined to evaluate and resolve the material controversy in the case only to the extent of the allegation of fraud and deception under influence of which as allegedly the defendant-respondent succeeded in obtaining the compromise judgment and decree. The record reveals that on 28.3.1992, the father of the present appellant filed a suit before the Court of Sub-Judge, Mirpur. In his plaint, he sought declaration and cancellation of compromise-deed dated 5.12.1991. It transpires that the judgment and decree dated 30.12.1991 was passed by the District Judge wherein, the appearance of Raj Muhammad, predecessor of the appellant has been recorded, whereas, his statement for compromise had been recorded on 5.12.1991 on his application for compromise with the defendant-respondent. He has averred in the plaint that "he did not appear before the District Judge, all the proceedings were kept secret by the defendant; the judgment and decree dated 30.12.1991 is against the law and justice; in the prayer he averred that the gift-deed, compromise deed, statement and order of the compromise deed (by the District Judge) are null and void and ineffective."
6. It becomes crystal clear from the record that the predecessor in interest of the appellant, first, appeared before the District Judge on 5.12.1991 and filed application for compromise and got his statement recorded before the District Judge, thereafter, on 30.12.1991 the judgment and decree was passed by the District Judge Mirpur, during this period even on 30.12.1991, he did not bother to raise any objection on the order dated 5.12.1991 regarding compromise, his statement for effecting compromise on the allegation of fraud and deception. Subsequently, in his suit before the Civil Judge, Mirpur, against the judgment and decree of the District Judge he was not able to prove fraud and deception in his evidence. Even, he has not alleged the word "...,:A-65" {{URDU TEXT}} in his examination in chief, regarding compromise with the respondent.
7. It may be noted here that the statement of party recorded in evidence, if found against the pleadings or it does not favour the pleadings of the party, that statement cannot be appreciated in favour of the party.
8. The statement of the father of the appellant appears to be genuine and made with his free-will without any wrong external influence before the District Judge and it also appears that it has been recorded correctly by the District Judge in his official capacity. There appears no abuse of process of law. The plaintiff has not alleged anywhere in his plaint or in the statement before the trial Court that the statement recorded is not the one which was shown as to be recorded or which he intended to get recorded. It is pertinent to mention here that the father of the appellant has not denied his appearance before the District Judge on the date of filing of application for compromise as well as his signatures/thumb impression affixed on the said application, and even his signatures affixed on the alleged statement. Admittedly, after filing of application for compromise, he got recorded his statement before the District Judge, therefore, it seems as a chain of quite natural events, which cannot be turned down afterwards. Although, this chain of acts is open to challenge on the basis of fraud and deception, if played, but the plaintiff has failed to prove through cogent evidence the allegations levelled by him in the plaint. The proposition has already been dealt with in the case reported as Haq Nawaz v. Shera and others (1985 M LD 494), wherein, it was held that:-- ...His presence on the aforesaid dates of hearing in the Court of learned District Judge has been recorded by the learned District Judge in the performance of his official functions. Presumption of due course and correctness is attached to such official records under section 114 of the Evidence Act. This presumption no doubt is rebuttable but the evidence led by the appellant to rebut this presumption is vague and meager. He has not been successful to rebut the presumption attached to the official acts. A judicial officer of the status of a District Judge is not ordinarily expected to record the presence of a party who is actually not present before him. It has been urged that may be, that some body impersonated before the learned District Judge as Haq Nawaz on the afore- said dates of hearing. This also does not appear to be possible in the presence of Advocates and other parties to the cause."
Thus, the appellant couldn't be allowed to turn round and assail the same after the judgment of the District Judge, which has been passed after due course of law. He was estopped to re-open the matter subsequently through the suit before the Civil Court to obtain the judgment and decree according to his own choice. Keeping in view the conduct of the plaintiff and such facts, we can safely draw the inference that the appellant was fully aware of the matter of the compromise, so he got his statement recorded, hence, he cannot turn round and claim to be ignorant of the contents of the application for compromise. Such act of the appellant is against the settled principle of stopple and waiver, thus, subsequently, he cannot retract from that position.
9. Admittedly, the witness produced by the plaintiff was a witness of the application for compromise. The witness of the plaintiff and the plaintiff himself even failed to support the material stance of the plaintiff taken in the plaint regarding the assertion for withdrawal of appeal. Neither the plaintiff alleged any other incentive or condition on the basis of which the defendant would have induced the plaintiff for making compromise, but later on, retracted from the same. During the course of evidence, Muhammad Shabir, a witness of the plaintiff did not support the allegations of fraud levelled by the plaintiff.
10. We have also observed from the perusal of the evidence that the plaintiff-appellant has failed to shift the burden of proof to the defendant through any mode of evidence as it was the plaintiff- appellant who should have proved through cogent evidence that fraud was played upon him by the respondent. In his statement, he has not uttered even a single word regarding the facts /events of fraud. Even his witness, Shabbir, did not support ,him on this material fact. Therefore, the burden of proof of allegation levelled in the plaint has not been discharged by the appellant. This Court in a case reported as Haji Muhammad Idrees v. Ch. Mehmood Ahmed and another (2000 SCR 166) while dealing with the same proposition has held as under: "... It is correct that initial burden of proof in a case is always on the plaintiff, but if the plaintiff discharges that onus and makes out a case which entitles him to relief, the onus shifts on defendant to prove the circumstances, if any, which disentitle the plaintiff to that relief. It is not always easy to determine as to what particular point it shifts from plaintiff to defendant as evidence gradually continues to be adduced but at the conclusion of trial when the issues come to be judged it has to be seen whether the initial onus which section 118 of Qanun-e-Shahadat casts upon plaintiff has been discharged or not."
Similarly, in a case reported as Noor Muhammad v. Jamal Din and others (2000 CLC 305), it has been held as under: ...In re: Ali Mohataram Naqvi v. Messrs Gogefar Astaldi Sidmail PLD 1986 Kar. 574 the established principle of law was repeated that where the onus of proof was on the plaintiff, his failure to produce cogent evidence would not cast any responsibility on the defendants negatively disprove the same."
So, in the light of the above cited case law, it can safely be held that the plaintiff-appellant has not performed his duty to discharge the burden of proof, thus failure to do so disentitles him for the prayed relief.
11. Moreover, there are concurrent findings of the facts recorded by the lower Courts and confirmed by the High Court, which cannot be disturbed. A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge. The G appellant has failed to point out any specific part of the evidence or record to substantiate his assertion. We agree with the argument of the counsel for the respondent that concurrent findings of facts, however may be perverse, cannot be disturbed. The proposition came under consideration of this Court in a case reported as Akhtar Hussain and others v. Raja Muhammad Zarin Khan (1993 SCR 114), wherein, in the last paragraph of the referred judgment, it has been held as under: "...So far as the question of waiver is concerned, the concurrent findings of the Courts below do not suffer from any legal infirmity and no misreading or non-reading of evidence on the point has been shown to have existed in the instant case. If there was any misreading or non-reading of evidence, it was essential for the petitioners to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statement.
Merely a general allegation that evidence has been misread would not render the concurrent findings of Courts below on a question of fact open to challenge. Thus, finding no force in the petition for leave to appeal it is hereby dismissed."
In the light of what has been stated above, no illegality or infirmity has been pointed out in the impugned judgment of the High Court, therefore, finding no force in this appeal, it is hereby dismissed with no order as to the costs.