' This appeal under section 100, C.P.C. Is directed against the judgment and decree dated 10th November, 1969 passed by the learned District Judge, Khairpur in Civil Appeal No, 70 of 1969 whereby the judgment and decree passed by the learned Civil Judge, First Class Khairpur on 21st July, 1969 in favour of the appellant was set aside and accordingly his suit was dismissed.
' The, brief facts of the case are that certain pieces of agricultural lands situated in deh Maghan- wari belonging to the Government were granted on full rate by agricultural department to various persons one of whom was Shandad son of Koro who was. Transferred Survey Nos. 554,-555 and 556 on 19th September, 1961. These three survey numbers transferred to Shandad were subsequently cancelled, on 18th May, 1967 and on 7th June, 1967 these survey numbers alongwith other 16 survey numbers were mutated in the name of respondent Mir Ashraf Ali on the basis of alleged Foti Khata Badal, (mutation on account of inheritance).
' According to the case in the plaint the respondent representing himself to be the owner of the said three survey numbers- (measuring 23-16 acres) agreed to sell the same to the plaintiff for Rs, 14,000 received Rs, 12,000 from him before the execution of the agreement and the balance amount of Rs, 2,000 was agreed to be received by him from the plaintiff at the time of registration of sale-deed before the Sub-Registrar. The agreement was executed on 7th June, 1967 wherein the receipt of Rs, 12,000 was acknowledged by the respondent and the other terms and conditions were reduced in writing and the plaintiff was put in possession.
' According to the plaintiff, subsequently he came to know that the representations made by the respondent that he was the exclusive owner of the said land and had absolute right of sale were false and that in fact the said survey numbers were part of a larger area of agricultural land which belonged to the Government. It was further stated that about 60 years back the said land was granted to one Mir Allah Bakhsh Khan son of Karam Hussain Khan Talpur but he surrendered the said land to the revenue department and accordingly the land was forfeited to the Government in the year 1942 and that subsequently the land was sold to public by calling offers through the Revenue Officer Sukkur Barrage. According to the plaintiff having come to know the above facts he served the respondent with legal notice dated 12th September, 1967 by registered post wherein the misrepresentation made and fraud practised .By the respondent were stated in detail and the refund of Rs, 12,000 was claimed. As no reply was received the plaintiff/appellant filed Suit No, 58 of 1968 in the Court of Civil Judge at Khairpur claiming therein refund of Rs, 12,000 and other reliefs.
2. The suit was contested by the respondent wherein amongst other pleas denying the claim of the plaintiff, it was pleased that the agreement was obtained through misrepresentation and fraudulent statement of Ghulam Rasool brother of the appellant who being an employee in the revenue department had represented that he would help the respondent and win for him the sixteen survey numbers and that he promised to do so on the understanding that in case the respondent's title was cleared of the cloud of the Government claim through his assistance, the respondent would hand over the above three survey numbers to the said Ghulam Rasool brother of the plaintiff in lieu of his assistance. According to the respondent no consideration in cash was received by him. It was further pleaded that the agreement was executed in favour of the plaintiff because Ghulam Rasool, a Government servant, did not want to get land in his own name. It was also pleaded that the agreement was not enforceable as no consideration passed between the appellant and the respondent.
3. A number of issues were framed on the pleadings of the parties but at the hearing of this appeal only the following issues, were argued and thus required consideration, are reproduced Issue No, 5.-Whether the agreement was signed on misrepresentation and under fraud ?
Issue No, 6.-Did the defendant make false representation to plaintiff that he had absolute right of sale and thereby induced plaintiff to part with Rs, 12,000 ?
Issue No, II.-What should the decree be ?
4. The appellant (Exh. 20) besides himself examined Ghulam Rasool, Stamp Vendor/Scribe (Exh. 18) and Ghulam Rasool (Plaintiff's brother) as Exh.
25. On behalf of the defendant were examined (1) the defendant (Exh. 32) and (2) Mir Altaf (Exh. 34).
' After recording the evidence and hearing the parties the learned Civil Judge by judgment and decree passed on 20th May, 1969 decreed the plaintiff's suit as prayed.
5. Against the above judgment and decree the respondent filed Civil Appeal No, 70 of 1969 in the Court of the District Judge Khairpur Mirs which the learned Appellate Court by judgment dated 10th November, 1969 allowed and the judgment and decree of the learned Civil Judge were set aside.
The suit was thus dismissed.
6. The appellant/plaintiff has now preferred this appeal under section 100, C. P. C. Assailing the above judgment and decree of the learned lower appellate Court.
7. On the Issues Nos. 5 and 6 which for the sake of convenience I am taking together, it was argued by the learned counsel for the appellant that the execution of the agreement dated 7th June, 1967 by the respondent/defendant was admitted. The terms and conditions of the contract were reduced in writing wherein amongst others, the respondent expressly acknowledged the receipt of Rs, 12,000 from the appellant/plaintiff as advance towards sale consideration of the three survey numbers. It was further pointed out that the said agreement, its contents and execution were duly proved by the evidence of the plaintiff and other witnesses produced on his behalf. In the first instance he referred to the evidence of Ghous Bux the plaintiff/appellant who by his evidence proved that before the execution of the agreement the respondent received Rs, 12,000 from him towards the sale of the land and that subsequently he on 7th June, 1967 executed the agreement Exh.
19. The said agreement he deposed bears his signatures as well as that of the respondent and that the same was read over to the .Defendant as well as the plaintiff and that both of them signed it in the presence of witnesses namely Ghulam Rasool and Khuda Bakhsh. According to the agreement the balance of the sale consideration. Rs, 2,000 was agreed to be paid at the time of registration of the sale-deed. It was further deposed that the defendant did not execute the sale-deed as the land belonged to the Government and that it was cancelled from the `Khata' of the respondent since it was found that the respondent had got the mutation of the land in his name by fraud.
' The plaintiff, therefore, gave notice dated 12th September, 1967 (Exh. 22) through his Advocate calling upon the respondent to refund Rs, 12,000 received by fraud and misrepresentation. Even after receipt Of this notice containing serious allegations of fraud and misrepresentation the defendant/respondent sent no reply. Consequently the suit was filed for recovery of Rs, 12,000.
' Before referring to the terms and conditions of the agreement Exh. 19 I would first like to refer to the evidence of Ghulam Rasool son of Mobin Khan the petition writer who was examined as Exh. 18 on behalf of the plaintiff/appellant in the Court. He in his deposition supported the case of the plaintiff and stated that the stamp paper on which the agreement was written was purchased from him in the name of the defendant on 6th June, 1967 and the terms and conditions were written by him on 7th June, 1967 at the dictation of the respondent. He further deposed that the agreement was read over to the defendant (respondent) who admitted the contents of the said document and signed the same in his presence and in the presence of plaintiff, Haji Khuda Bakhsh and Ghulam Rasool (brother of plaintiff) as attesting witnesses. He further deposed that it was also signed by him. In his cross-examination this witness frankly stated that no money was paid by the plaintiff in his presence and to a suggestion made he denied that the defendant had not agreed to sell this land or that he had agreed to sell the land to the plaintiff (appellant) provided Ghulam Rasool (brother of the appellant who was a Government servant at Karachi) would help the defendant in the matter of land. He further deposed that he did not know anything beyond what was written in the agreement.
' The third and the last witness on behalf of the .Plaintiff (appellant) examined was his own brother Ghulam Rasool (Exh. 25) who deposed that the defendant had agreed to sell the three survey numbers in question for Rs, 14,000 to his brother Ghous Bux plaintiff and in his presence the respondent executed the agreement of sale which was written by P. W. Ghulam Rasool (Exh. 18) at the dictation of the defendant/respondent. He further stated that the contents of the agreement were read over to the respondent in his presence and the appellant as well, and it was signed by the respondent. It was further deposed by him that the respondent admitted to have received Rs, 12,000 from the appellant and the remaining Rs, 2,000 were agreed to be paid at the time of the registration of the sale-deed. He identified the deed of agreement (Exh. 19). In the cross- examination the witness admitted that no money was paid by the plaintiff/appellant in his presence. He denied the suggestion made in his cross-examination that the agreement (Exh. 19) was executed by the respondent as a condition for the witness helping him in his land matter. It was also denied that the land was taken by him in the name of his brother because he was a Government servant.
8. On the other hand the defendant in his own evidence deposed that his land had been cancelled by the Government and was being auctioned and that he asked Ghulam Rasool (brother of the appellant/ plaintiff) to help him as according to the respondent he was an influential man and was employed in the Commissioner's office. According to him the plaintiff's brother Ghulam Rasool asked him to give some land and that he would get his work done, and that accordingly in lieu of these terms he executed the agreement Exh.
19. He further deposed that he did not receive any consideration for this agreement and according to him the land was not granted to him as Ghulam Rasool had not helped him. He however admitted that the agreement (Exh. 19) hears his signature. He also admitted that he received notice (Exh. 22) from the plaintiff/appellant. In the cross-examination the respondent admitted that he owns about 400 acres of land. He further stated that the Khata of the three survey numbers (agreed to be sold) was mutated in his favour on 7th June, 1967. (which is the same date as the date on which the agreement of sale was executed). He denied the knowledge that the Khata in respect -of said three survey numbers was cancelled: It was admitted by .Him that he had purchased the stamp on which the agreement of sale (Exh. 19) dated 7th June, 1967 was written in presence of Ghulam Rasool.
9. Mir Altaf (Exh. 34) witness produced by the respondent in his evidence stated that the land of the respondent had been cancelled and for its regrant he had requested Ghulam Rasool (brother of the appellant) who however wanted some land in return for his efforts whereupon the respondent agreed to give him the suit land if he got the land regranted. According to the witness there was no question of payment of any money to the respondent by the appellant for the suit land.
' The above was the evidence that was produced in the case.
10. We now turn to the agreement dated 7th June, 1967 (Exh. 19) whereby the respondent agreed to sell the three mentioned survey numbers to the appellant for a sum of Rs, 14,000. Out of the said consideration amount the respondent admitted to have received a sum of Rs,. 12,000 from the vendee (appellant) before The execution of the said agreement and the balance of Rs, 2,000 was agreed to be received at the time of registration of the sale-deed before the Sub-Registrar. The respondent covenanted :- "In this manner I will receive full consideration amount and will not claim to have received less or more. 1 have sold the land absolutely at market rate."
' The agreement bears the signatures of Haji Khuda. Bakhsh and Ghulam Rasool Khan son of Ghulam Khan Soomro as the attesting witnesses. It also bears an endorsement that it was written by Ghulam Rasool stamp vendor Khairpur in accordance with the instructions of the parties and bears his signature.
11. Mr. Talpur the learned counsel appearing for the respondent argued that the agreement was without consideration and in fact the appellant was not in a position to have paid such a huge amount of Rs, 12,000 to the defendant/respondent for purchase of the land in question. He further submitted that the respondent is an illiterate person and that the agreement was obtained by the plaintiff's brother Ghulam Rasool, in the name of the plaintiff (appellant) on the representation that he would help the respondent in getting the land which had been cancelled and in consideration thereof Ghulam Rasool wanted a piece of land that in the circumstances he signed the agreement on misrepresentation and fraud practised upon him and that in fact no consideration passed between the parties. The learned counsel cited the cases Taj Din v. Abdur Rehman, Sah La! Chand v. Indarjit and Yusuf All Chowdhury and another v. Province of East Pakistan in support of his contention that in spite of the fact that the documents recited payment of sale consideration it was open to the party concerned to prove that in fact no consideration passed. So far as the pinciples laid down in these cases, there is no dispute about the same. The questions in this case however is whether the pleas raised on behalf of the respondent to the effect that the agreement Exh. 19 was executed under fraud and misrepresentation, that the agreement was without consideration and that he is an illiterate person, have been proved.
Referring to the last plea of the respondent that he is an illiterate person, which plea found favour with the learned Appellate Court it may be mentioned that a perusal of the record/written statement shows that neither such a plea was taken in the written statement nor any such issue was framed or pressed. The plea which was not taken in the written statement, therefore, could not1 2 3 be allowed to be entertained. Furthermore, the respondent in his evidence, as well, did not claim that he is an illiterate or semi-illiterate person or that he did not understand the contents of the agreement. The evidence on the record on the contrary shows that he is a big Zamindar owning about 400 acres of land and comes from the royal family. In the light of the evidence and status of the defendant and particularly in the absence of any plea in the written statement, it was not permissible to have treated the defendant as an illiterate person or semi-illiterate person. It is well- settled law that a plea which has not been taken in defence no amount of evidence could be allowed to be produced B on the same. In the circumstances taking in view the principle laid down in the case of Chiragh Bibi v. Rashida Begum. I have no hesitatio in holding that the plea raised on behalf of the respondent that he is an illiterate or semi-illiterate person could not be entertained or accepted.
12. As regards the agreement the execution whereof by the plaintiff in the presence of the witnesses has not been denied, pleas were taken in the written statement that in fact the said agreement was signed on misrepresentation and fraudulent statement of Ghulam Rasool (brother of the plaintiff) that he being an employee of the revenue department would help the respondent to get back his land regranted by the revenue authorities and that the aforesaid survey numbers were agreed to be given to the said Ghulam Rasool in lieu of his assistance and that in fact no consideration in cash was received by the defendant. It was further pleaded that the matter was still pending in litigation and as such the agreement could not be enforced. These contentions advanced on behalf of the appellant cannot be accepted and are falsified by the fact that on 7th June, 1967 the date on which the agreement of sale was written the land in question alongwith other survey numbers had in fact been mutated in the name of the respondent on the basis of Foti Khata Badal on respondent's application vide entry No, 109 dated 7th June, 1967. Thus, it cannot be said with any justification that the agreement was entered into by the defendant with the plaintiff on 7th June, 1967 on the representation that the plaintiff's brother Ghulam Rasool, a Munshi/Clerk in the revenue department at Karachi, for his promise to help the respondent to get back his property from the revenue authorities. Furthermore the fact that the stamp paper for the agreement was purchased by the respondent a day earlier to the Foti Khata Badal effected on 7th June, 1967 also would be a circumstance to discredit the story of the respondent that the agreement was executed in lieu of services to be rendered by the plaintiff's brother to help the defendant to get back the land from the revenue authorities.
13. The execution of the agreement has been proved by Ghulam Rasool petition writer/stamp vendor (Exh. 18) supported by the evidence of the plaintiff as well as his brother Ghulam Rasool. All these three witnesses have signed the agreement and that in their presence the respondent also executed the agreement. Ghulam Rasool (Exh. 18) in his deposition stated that the agreement was written by him on 7th June, 1967 at the dictation of the defendant. This statement of the witness Ghulam Rasool was not challenged in his cross-examination. Not only the oral evidence led by the appellant belies the defence taken by the respondent that there was no consider ation for the alleged agreement, but I find from the agreement, in writing itself that the land was agreed to be sold. For a sum of Rs, 14,000 absolutely to the plaintiff/appellant and that the respondent represented that it was his own land, that out of the consideration he received Rs, 12,000 from the plaintiff/appellant before the execution of the agreement and that the balance of Rs, 2,000 would be payable by the appellant to the vendor/respondent at the time of registration of the sale-deed before the Sub-Registrar.
' Another important factor to be taken note is that the appellant on 12th September, 1967 served a notice through his Advocate mentioned therein that on 7th June, 1967 the defendant had agreed to sell his agricultural land (three survey numbers) total measuring 23-16 acres situated in deh Maghan Wari taluka and District Khairpur and received from the plaintiff/ appellant a sum of Rs,4 12,000 and the balance Rs, 2,000 were agreed to be paid at the time of registration of proper sale- deed. The notice further recited that the respondent/defendant had represented at the time of the agreement that the land was exclusively owned by him and that he had an absolute right of sale and transfer the same to the appellant. The notice further proceeded to state that it was found that the land belonged to the Government and that the respondent had by fraud and misrepresentation and by producing false and fabricated documents got his name .Mutated in the record of rights and thereby committed fraud on the Government, and was directly responsible in getting a false record manipulated in his favour. He was further called upon to refund Rs, 12,000 received by him from the appellant under agreement of sale dated 7th June, 1967 within seven days failing which he was warned that action would be taken against him at his risk and costs without further notice to him in that respect.
' It would be seen that in the notice referred to above serious allegations of fraud and misrepresentation were made against the respondent besides stating therein that he had agreed to sell the three survey numbers to the plaintiff for a sum of Rs, 14,000 and had received Rs, 12,000 cash from the appellant. In case there was no truth in the allegations made by the appellant the natural reaction on the part of the respondent would have been to send an appropriate reply to the appellant denying the allegations. He however did not dare to contradict the allegations for reasons which are obvious.
14. Another relevant factor to be mentioned is the conduct of the respondent Mir Ashraf Ali Khan who had agreed to sell the three survey numbers of the appellant. He got the Survey Numbers 554- 569 of Deh Maghan Wari mutated in his name on the basis of Foti Khata Badal alleging that the land belonged to his father Mir Ali Gohar Talpur and that after his death he was entitled to mutation of the said land in his name and on such representations got the land mutated in his own name. The question of the legality and the propriety of the mutation thus obtained by the respondent in his name, came for consideration before the Deputy Collector Khairpur who after hearing the respondent held that he had failed to prove any title in favour of his father or any of his predecessors and that the land in dispute was not an ancestoral land of Mir Ashraf Ali Khan but it was Government land. The relevant findings which throw light on the conduct of the respondent, are reproduced bereinbelow : "All these factors lead me to believe that the land belonged to Government and as such the Barrage Department had rightly, disposed of the land to various khatedars including Mir Allah Bux son of Mir Ashraf Ali in the years 1959 and 1961.
' The above facts confirm my view that respondent Mir Ashraf Ali has played fraud and tried to tamper with the revenue record and thereby got his name mutated through the negligence of the village staff and the Head Munshi who did not go deep in the matter and did not refer to the old Government record "
' The above findings of the Deputy Collector show that Mir Ashraf All the respondent had played fraud and had tried to tamper with the revenue record. His past conduct makes him an unreliable witness whose statement to disown the agreement Exh. 19 made in writing on 7th June, 1967 could not, therefore, be accepted unless otherwise proved beyond any reasonable doubt and which I find he has miserably failed to do.
15. I have perused the judgments of the two Courts below and find that the learned trial Court while decreeing the suit has taken into consideration the positive evidence of the plaintiff supported by P.
W. Ghulam Rasool an attesting witness and Ghulam Rasool Soomro (Exh. 18) who is the petition writer and scribe of the agreement. The learned Civil Judge who had the opportunity and advantage of seeing the witnesses, had observed that the evidence of the above witnesses examined remained unshaken and that Ghulam Rasool Soomro petition writer (Exh. 18) was independent witness who had stated that he had written the agreement at the dictation of the defendant and that it was read over to the defendant who admitted it and signed it. I have also noted above that this part of the evidence given by Ghulam Rasool Soomro was not even challenged in the cross-examination on behalf of the respondent. From the perusal of the record I find that the learned Civil Judge rightly rejected the plea of the respondent that the agreement was without consideration. The learned Civil Judge took notice of the fact that Ghulam Rasool was not posted at Khairpur but was posted as Head Munshi at Karachi, and that there was no evidence to show that a mere Clerk, as he was, had so much influence over the Government that he could get the land regranted in his favour. The reasons given by the learned Civil Judge in my opinion are cogent and that as against the said reasoned judgment of the learned Civil Judge I find that the learned lower appellate Court had proceeded on the wrong assumption that the onus for non- payment of consideration lay upon the party who alleges it but where the party is illiterate onus shifts on the person who alleges payment of consideration and that the appellant according to the defence witness Mir Sabit Ali, is a semi-illiterate person. No such plea was taken in the written statement or evidence by the respondent.
' The plaintiff/appellant was accordingly found entitled by the trial Court to refund of the sum of Rs, 12,000 the land having been cancelled from the khata of the respondent.
16. The discussion as above leads to the conclusion that the learned trial Court rightly decreed the plaintiff's suit and there were no cogent reasons to reverse the findings reached by the said Court.
The judgment of the learned lower appellate Court on the contrary is against the law and suffers from serious errors of law which have resulted in miscarriage of justice.
17. Accordingly the judgment and decree passed by the learned lower appellate Court are set aside and the decree passed by the learned trial Court is restored. The respondent shall bear costs throughout and shall pay interest on the amount decreed at the rate of 10% per annum from the date of passing of this judgment till payment.
' The decretal amount is allowed to be paid by the respondent in six equal instalments. The first instalment shall be paid on 1st September, 1982 and each instalment thereafter shall be paid on expiry of every six months. In case of default in payment of any instalment as directed above the entire decretal amount then due shall become payable forthwith. PLD 1963 Kar. 825 27 I A 93 PLD 1968 Dacca 198 PLD 1958 SC 209