SULTAN TANVIR AHMAD, J.----This revision petition has arisen out of the judgment and decree dated 01.06.201 1 passed by learned Additional District Judg e, Pamir , whereby the judgment and decree dated 24.12.2009 passed by Civil Judge (Ist Class), Pasrur District, Sialkot was upheld and appeal was dismissed.
2. The brief facts of case are that dispute arose between the Petitioner and the Respondent due to consolidation proceedings of Mouza Chak Machana, Tehsil and District, Sialkot, which took place in 1964. The dispute resulted into litigation, which remained pending before various forums including this Court. Respondent alleged that the parties entered into compromise regarding the then Khasra Nos. 356/4-5, 357/8 and 358/9-7 land measuring 20- Kanals (the 'suit property'). Allegedly , the Petitioner failed to attest the mutation in furtherance of compromise, Ex.P- 1 (hereinafter called as 'Ex.P1') despite several requests. In consequence of the said denial, the Respondent, on 11.02.2005, filed suit for Declaration and Specific performance with Consequential Relief. Petitioner contested the suit by filing written statement. Out of the divergent pleadings of the parties, thirteen (13) issues were framed which are as under:-
1. Whether the plaintif f has no cause of action or locus-standi to file the suit? OPD
2. Whether the suit is based on mala fide and is liable to be dismissed? OPD Whether the alleged agreement to sell is forged, fictitious and ineffective upon, the rights qf the plaintif f and is liable to be set-aside? OPD
4. Whether the suit is not maintainable in its present form? OPD
5. Whether the suit is liable to be dismissed under Order VII, Rule 1 1 of C.P .C.? OPD 6 Whether the suit is bad for deficiency of court fee? OPD
7. Whether the suit has been filed to cause mental and physical harassment to the defendant the same is liable to be dismissed with costs? OPD Whether the plaintif f has not given any notice to defendant regarding the alleged Iqrarnama? OPD
9. Whether the suit is time barred? OPD
10. Whether the defendant has entere d into agreement dated 10.03.2001 regarding the return of the land measuring 20 Kanals 0 marla from the suit khasra number to the plaintif f? OPP
11. Whether the plaintif f is entitled for the execution of the alleged agreement to sell as prayed for? OPP
12. Whether the plaintif f is entitled for decree as prayed for? OPP
13. Relief.
3. Parties tried to prove their respective stances by leading evidence. Respondents appeared as PW-1, Muhammad Yousaf and Ghulam Rasool, appeared PW-2 and PW-3, respectively . The postal receipt of the legal notice was exhibited as Ex.P-2 and acknowledgement receipt of the notice was exhibited as Ex.P-3, Khasra Gardawaries were exhibited as Ex.P-4 and Ex.P-5. Copies of various pleadings (of earlier round of litigation) and decisions by judicial and quasi-judicial forums were also produced, before the learned trial Court. The Petitioner appeared as DW -1 and produced Muhammad Khan as DW -2 and Khushi Muhammad as DW -3.
4. The learned trial Court, after examining evidence and record, passed judgme nt and decree in favour of the Respondent on 24.12.2009. Dissatisfied, from the said judgment and decree, Petitioner filed appeal bearing No.4/2010. The learned appellate Court reached to the conclusion that findings of the learned trial Court do not suffer from any illegality or irregularity and dismissed the appeal vide judgment dated 01.06.201 1. Aggrieved from the judgment dated 01.06.201 1 passed by learned Additional District Judge, the present Civil Revision has been filed.
5. Learned counsel for the Petitioner submitted that Ex.P-1 lacks consideration and relied upon Sections 24 and 25 of the Contract Act (the Act of 1872). Further submitted that compromise against the doubtful claim cannot constitute valid consideration; that Petitioner has not gained any practical benefit from the compromise; that Respondent has failed to pay any amount to purchase promise. Added that the judgment of the learned Courts below are against law and facts of the case; that the same are result of mis-readin g and non-reading of evidence; that Ex.P-1. is forged and fake document; that learned trial Court has failed to frame proper issues; that separate issue of fraud and forgery should have been framed by the learned trial Court; that evidence of the Respondent party is not confidence inspiring; time of performance of Ex.P-1 is not given in the same which is fatal for the case; Learned counsel further reiterated the contents of plaint and the revision petition and also relied upon cases titled Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Zahid Rahman v. Muhammad Ali Asghar Rana (2007 CLC 1814 ), Faheem Ahmed v. Ata-ur-Rehman (2007 CLC 1746 ) and Mst. Barkat Bibi and others v . Muhammad Rafique and others (1990 SCMR 28 ).
6. Conversely , learned counsel for the Respondent supported the impugned judgment and decree. Learned counsel relied upon the evidence of PW-1 to PW-3 and the document produced by them during the trial. Further submitted that compromise and Ex.P-1 are proved by producing the relevant parties including marginal witnesses; that there is hardly and contradiction in the statement of the PWs; that evidence is confidence inspiring and rightly relied by the learned Courts below . Learned counsel for the Respondent party read out the cross-examination of the witnesses of the Petitioner and pointed out the contradictions. Added that this Court has limited jurisdiction Section 115 of CPC; that parameters of the jurisdiction in revisions are distinguishable from jurisdiction under Article 199; that concurrent findings of facts by the Courts below can only be interfered when it can be shown that findings are perverse to the record and patently improbable. Learned counsel has relied upon the cases titled Khalil Ullah Alias Khalil v.Awas Khan and another (2021 CLC 456), Syed Hussain Naqvi and others v. Mst.
Begum Zakara Chatha through LRs and others (2015 SCMR 1081 ), Muhammad Feroz and others v.
Muhammad Jamaat Ali (2006 SCMR 1304 ), Ajab Khan v. Mirza Qayyum Baig through Legal Heirs and others (2021 YLR 104 ) and Muhammad Jan and 22 others v . Roshan Gul and 08 others (2021 CLC 68 ).
7. Arguments heard and the record perused with the able assistance of learned counsel for the parties.
8. The question as to the 'consideration' for the compromise, raised before this Court, has two limbs:
(i) The compromise and Ex.P-1 is not enforceable because no money is paid to the Petitioners hence no consideration is given to buy the promise of the Petitioner by the Respondent. B
(ii) The claim of the Respondent was doubtful and even without the alleged forbearance the Petitioners would have successfully obtained their land.
The definition of consideration as contained in Section 2(d) of the Contract Act, 1872 is:- `(d) when, at the desire of the promiser , the promisee or any other person who has done or abstained from doing, or does or abstain from doing, or promis e to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the purpose'.
(Emphasis supplied)
9. The mentioned definition is elaborated by the Honorable Sindh High Court in case titled Lal Bux and another v.
Abdul Rasool through legal heirs and another (1994 CLC 138). It is observed in the said judgment that consideration does not always mean the money but it can also have several other forms including abstinence of one party from taking any action for compromise. In the case titled "Hafeez Ullah Khan and 2 others v. Al-Haj Chaudhri Barkat Ali and 2 others (PLD 1998 Karachi 274), the Sindh High Court, decided that consideration does not mean monetary benefit, alone. Abstinence or forbearance by one person at the desire of other give rise to corresponding rights and it duly falls within the scope of Section 2(d) of the Contract Act.
10. The Delhi High Court in the case titled "K.S Bakshi and Amr v. State and Amr" (146 (2008) DLT 125) has very widely interpreted section 2 (d) of the Indian Contract Act, 1972. In paragraph, 36 following was held:- "Thus, "consideration" is a very wide term and is not restricted to monetary benefit. Consideration does not necessarily means money in return of money or money in lieu of goods or service. Any benefit or detriment of some value can be a consideration"
(emphasis supplied)
11. Fundamental is that promiser must express a desire that promisee should do something and promisee then does that or promise to do the same. On the wordings of the definition in Section 2(d) of the Contract Act all that is necessary is that the desire of one party and the act of another must have a nexus with each other i.e. the action of promisee is at the desire of the promiser . The concept of consideration as envisaged in Section 2(d) of the Contract Act does not necessarily mean or imply any monetary benefit or anything susceptible to valuation in terms of money . It signifies any abstinence, forbearance detriment, benefit or responsibilit y by the promisee or any other person at the instance or desire of promise, which give rise to corresponding the right and interest. In this regard further reliance can also be placed on Pakistan Steel Mills Corporation (Private) Limited v. Karachi Water and Sewerage Board through Chief Executive and 2 others (2012 CLD 396) and Sri Mahadeo Ji v. Baldeo Parsad, plaintif f and another (AIR (30) 1943 Oudh 89).
12. Now, coming to the second limb of the arguments of learned counsel of the Petitioner , where the question raised is that the claim of the Responde nt was doubtful and even without the alleged forbearance the Petitioner would have successfully obtained his land. This question has already been considered by various Courts including by the High Court Madhya Pardesh in the case titled "Firm Copal Company Ltd. and Ors. v. Firm Hazarilal Company" (AIR 1963 MP 37). Following is the relevant part of the decision:- The abandonment of a disputed claim or doubtful claim is undoubtedly a valuable consideration and it is so even if the claim is ultimately found to be unsustainable. As Bowen, said in Miles v. New Zealand Alford Estate, Co.
(1886) 32 Ch. D 266.
The reality of the claim which is given up must be measured, not by state of law as it is ultimately discovered to be, but by state of knowledge of the person who at the time has to judge and make the concession. Otherwise, you will have to try the whole cause to know if the man had a right to compromise it."
In the case titled "Babu Tikam Das v. Nawab Abbas Mirza " (AIR 1934 Oudh 442 (2)), this issue was determined as follows:- To render valid the compromise of a litigation, it is not even necessary that the question in dispute should really be doubtful, if the parties bona fide consider it to be so. It is enough to render a compromise valid, that there is a question to be decided between them. A compromise of doubtful right will not be set aside on any other ground than fraud.
Further reference, substantiating aforesaid, can be made to Hall v. Fuller 352 S. W.2d 559 (Ky. Ct. App. 1962), Forsythe v. Rexroat, (1929, 234 Ky. 173), Horton and Horton [1960] 3 ALL ER 649 and Cf Whiteside v.
Whiteside (1950 Ch 65),
13. On the touchstone of the criterion as mentioned herein above, the test that can be applied in such cases is not to find out whether the party have a good case but only to see if the party thought in good faith that he had a case or cause which was abandoned, provid ed such party was not tricked into it or subjected to fraud. The party pleading the same must prove this trick or fraud, if at all pleaded.
The said test also finds support from Section 22 of the Contract Act.
Section 22 of the Contract Act, 1872 `A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact'.
Section 22 of the Contract Act disallows a party from avoiding a contract on the excuse of mistake of fact, as is observed by the Sindh High Court in the case titled Muhammad Bibi and 2 others v. Abdul Ghani and 2 others (PLD 1973 Karachi 444 ). The relevant part of the judgment is as under:- `It was further brought to the notice of Mr. Muzaf far Ali that to avoid a contract on the ground that it is void for mistake, both parties to the contract should be under a mistake as to a matter of fact essential to the agreement, as required by section 20 of the Contract Act, and, further , under section 22 of the Contract Act, a contract is not voidable because one of the parties only is under a mistake as to a matter of fact'.
Further reliance in this regard can be placed on the case titled Pakcom Limited and others v. Federa tion of Pakistan and others (PLD 2011 Supreme Court 44) and in the case titled Guangdong Overseas Construction Group Company Ltd. through General-Manager v. Creek Marina Private Limited and 2 others (PLD 2011 Karachi 304 ).
14. In the present case, Petitioner (DWI) admitted litigation with the Respondent regarding the consolidation proceedings. He has further E admitted that he promised to give the suit land to the Respondent party . The following part of cross-examination of Petitioner (DW -1) is significant:- {{URDU TEXT}} Likewise, DW-2 who was the headman of the particular village although denied allegations leveled by the Respondent party but admitted his thumb impression on Ex.P-1. He further deposed that he signed Ex.P-1 without reading it. The stance taken by witnesses of Petitioner is highly improbable and contradictory .
The previously mentioned evidence and discussions clearly reflect that at the desire of the Petitioner and because of abstinence or forbearance on the part of the Respondent, litigation having spread over F decades has ended.
The Petitioner , through confidence inspiring evidence, did not prove fraud with respect to Ex. P-1; therefore, the stance of the Petitioner as to the lack of consideration of the agreement is mispla ced, in the circumstances of the case.
15. On the other hand, Respondents appeared as PW-1 and supported the contentions in the plaint. Muhammad Yousaf s/o Umer Hayyat appeared as PW-2 who confirmed the compromise, the execution of the Exb. P-1 and his signatures on the same as a marginal witness. Ghulam Rasool son of Nawabdin appeared as PW-3 who was also marginal witness to the compromise and he confirmed his signatures on Ex.P-1 and also supported the other contentions of the Respondent party . The postal receipt of the legal notice was exhibited as Ex.P-2 and receipt of acknowledgement of the notice was exhibited as Ex.P-3, Khasra Gardawaries were exhibited as Ex.P-4 and Ex.P-5 showing continuous possession.
16. I also agree with the arguments of the learned counsel for the Respondent that concurrent findings of the courts below can only be interfered when the same results into perpetuating miscarria ge of justice or if there is any misapplication of principles relating to appreciation of evidence or when the impugned judgments are against the law.
The Honorable Supreme Court of Pakistan as well as this Court has repeatedly discouraged interference in the concurrent findings, unless jurisdictional defect, material irregularity or patent illegality is floating on the surface of the record. Reliance can be placed on cases titled Mst. Zaitoon Begum v. Nazar .Hussain and another (2014 SCMR 1469 ), Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through LR. S and others (2015 SCMR 1081 ), Naik Muhammad v. Muhammad Shabbir and others (2019 CLC 164), The Chairman WAPDA and 4 others v. Messrs Sitara Marbles Industry through Managing Director (2016 YLR 205) and Mirza Muhammad Ashraf Baig through Legal Heirs and others v . Saleem Ullah Baig and others (2015 MLD 450 ).
17. The Petitioner has failed to make out a case requiring interference in the findings of two Courts below .
Consequently , the present Petition is dismissed, with no order as to costs.