' This second appeal under section 100, C.P.C. Is directed against concurrent decisions of two Courts below decreeing a suit No, 1679/77 filed by the respondent Murad for cancellation of an agreement dated 14-1-1966. The facts in the background, briefly stated, are as under:
2. The respondent averred in the suit No, 1679/77, filed in the Court of Civil Judge XXV, Karachi on 6- 1-1977, that he was in possession of a Plot No, AK-21-503-34 situated at Ibrahim Chowk, Kalakot, Karachi. According to him, there were 5 shops on a portion of the plot on road side and the remaining portion, which was lying unconstructed stood subdivided into two portions, one measuring 26 x 19 feet and the other one 29 x 25 feet. He contended that the respondent No,1, by name Hashim, who was impleaded as the defendant No,1 in the suit, was in occupation of the unconstructed portion of the plot as his tenant for the previous 15 years. He stated that the appellant Hashim was permitted to construct a compound wall and one Pucca room over the rented premises from his own funds and adjust the cost of the construction incurred by him through future rent, which was increased from Rs, 30 to Rs, 60 per month. He alleged that the appellant Hashim put pressure on him for reimbursement of the cost of the construction to the tune of Rs,4,800 immediately and he was compelled to sell to him a portion of the plot measuring 29 x 25 feet for the aforesaid amount under sale deed dated 25th May, 1965. He further alleged that the appellant fraudulently obtained his signature on a piece of paper misrepresenting that some objections were to be filed before the Excise & Taxation authorities in respect of the demised premises which was standing in his name till then. He asserted that the appellant continued paying him rent at Rs, 30 per month for the unsold portion of the open plot. There happened to be a tussle between the parties over some matter somewhere in the year 1977 and the matter was reported to Kalakot police. It transpired during the course of investigation of that case that both the portions of the open plot stood purchased by the appellant Hashim from the respondent Murad by two separate sale-deeds, one, dated 25th May, 1965 and another, dated 14-1-1966. In the event of dispute between the parties, police instituted proceedings under section 145, Cr.P.C. Against them.
Facing this situation, the respondent Murad filed the suit that for the reliefs that the sale-deed, dated 14-1-1966 claimed to have been executed in favour of the appellant Hashim in respect of the area of 26 x 19 feet was unlawful, illegal, void and unenforceable at law and that the same may be ordered to be delivered up in Court and cancelled. The suit was resisted by the appellant No,1, who escorted that the impugned sale-deed was a bona fide transaction and there was no element of fraud therein. He advanced some other pleas, which are reflected in the issues struck for determination of the suit. As many as 9 issues were settled, out of which only 2 issues, at serial Nos.
5 and 6 reproduced below, are relevant for the purpose of decision of this appeal. They read as under:-- "5. Whether the plaintiff sold the portion measuring 26 x 19 for Rs,2,100 on 14-9-1966 to defendant No,1?
6. Whether the defendant. No,1 had fraudulently obtained signature of the plaintiff upon a document, dated 14-1-1966 if so, what is its effect?".
3. The learned trial Judge, by his judgment, dated 23-12-1980, recorded his findings on these issues as under:- "In view of the evidence adduced by the parties, this Court finds that the plaintiff managed to shift the burden of proof on to the defendant's side which had then to prove the genuineness of Exh. P/2.
Only one attesting witness was produced and he too admitted to being servant of defendant No,l's brother. His evidence therefore cannot be considered independent in any way. No receipt for Rs,2,100 alleged payment was produced and Exh. P/2 bore no other attestation. In consequence, therefore, this Court holds that the defendants failed to prove the document and issue No,6, on a balance of probabilities, stands proven in favour of the plaintiff.
' The upshot of this finding is that all further transactions carried out by the defendant No,1 on the basis of this document, are nul and void ab initio, and this document itself, having been obtained by fraud, is null and void.
' In view of the above finding on issue No,6, clearly this Court holds that the plaintiff, did not sell the portion measuring 26' x 19' for Rs,2,100 on 14-1-1966 the defendant No,1".
4. On appraisement of evidence adduced by the parties on other issues as well, the suit was decreed in the trial Court by the impugned judgment and decree, dated 23-12-1980. The appellant Hashim and others filed appeal No, 46/81 in the District Court, Karachi. The appeal was heard by VIIth Additional District Judge, Karachi. He maintained the judgment and decree passed by the learned trial Judge and dismissed the appeal by his judgment and decree, dated 3rd February, 1982. The learned C. Appellate Court Judge dealt with the main issues Nos. 5 and 6 at paragraph 10 of his judgment. It would be worthwhile to reproduce that paragraph of his judgment. It reads as under:- "10. I have examined the contentions of the counsels for the parties on this main issue to find out as to which party has adduced best evidence in support of their pleas. So far as the plea of misrepresentation and fraud is concerned it was certainly the legal duty of the plaintiff/respondent to discharge that burden. And in this case after going through the evidence of the respondent and the witnesses his plea that the appellant Hashim obtained his signature and thumb-impression on a blank paper on his shop in the presence of two witnesses has been satisfactorily established. He has deposed the truth. The respondent has admited the first transaction very frankly but denied the second and subsequent transaction. Had he become dishonest he would have denied the previous transaction also. However, the evidence which came from the side of the respondent had shifted the burden on the appellant who have failed to discharge that burden. The appellant has not produced the original document in the Court which he had with him. This document as it will appear from its photostat copy bears the signature of two attesting witnesses namely Usman and thumb-mark of Sher Muhammad as well as signature of the petition writer but out of those three persons the appellant produced only Usman. The best witness apart from the attesting witnesses would have been the person who had typed the agreement and had signed on it. Moreover, the appellant during the cross-examination had put his case that he had obtained the signature of the respondent on Exh. P/2 at his shop in presence of his witnesses.
' This fact clearly noticeable in the cross-examination of Murad as well as his two witnesses. The appellant has taken a different turn at the time of his evidence and placed altogether a different case with regard to the place of execution of that document Exh. P/2. The appellant has stated that the plaintiff/Murad and he alongwith him had gone to the Lea Market to the petition writer and got Exh. P/2 written by him and both had signed in his presence. This fact has not been stated by the appellant in his written statement nor the appellant had summoned the petitioner writer. The witness Usman was summoned by him at a later stage though the appellant did not give his name in the list of witnesses. It has also come in the evidence of appellant Hashim that two witnesses Usman and Ibrahim had signed Exh. P/2 whereas Usman examined by appellant had stated that the other witness was Sher Muhammad. In fact Exh. P/2 shows that the other attesting witness is Sher Muhammad. The above discrepancies and the different plea taken by the appellant makes his version wholly unreliable. The appellant cannot get any benefit out of the previous statements made by plaintiff and his witnesses who have not been confronted and contradicted with these portions in accordance with section 145 of Evidence Act. The evidence which has been adduced by the appellant on this point is not convincing and he had not been able to discharge the burden of proof, as he has failed to examine the best evidence which was available with him. The learned Civil Judge has rightly believed the respondent and disbelieved the version of the appellant. The circumstances and probability of the case are in favour of the respondent".
5. At the hearing of the appeal herein, both the learned counsel have dealt with the findings of the Courts below only in respect of the issues No, 5 and 6, which have been reproduced above. The learned counsel for the appellant has urged that it was defendant Murad who alleged that the document, dated 14-1-1966 was fraudulently obtained from him and the burden of proving alleged fraud heavily lay upon him; but the learned Courts below erroneously shifted that burden or proof to the appellants against 11 cannons of law and, therefore, the judgments and decrees passed by them are liable to be set aside. He has made reference to the cases referred to in paragraph 9 of the judgment of the learned 1st Appellate Court, dated 3rd February, 1982. The cases mentioned therein are L D 1968 Kar. 320; PLD 1969 SC 167; AIR 1923 Sind 25, AIR 1955 Madh. Pra. 417; AIR 1954 Asam 94; A 1 R 1926 Cal.
73. On the other hand, the learned counsel for the respondent has contended that the findings of the Courts below on both the issues are concurrent and they are not liable to be set aside. He has placed reliance on a *case reported in PLD 1955 FC 38.
6. It is evident from the extracts reproduced from the judgments of the Courts below that they have adopted the view that on consideration of the evidence adduced by the respondent Murad that the sale-deed was a fraudulent document, the burden or proof that the alleged sale-deed was a genuine document shifted to the appellants herein. The learned counsel for the appellant has taken strong exception to the view adopted by the learned Courts below. Of course, the learned Courts below have erred in making mention of shifting of burden of proof. But the error in recording reasons seems to have cropped in as learned Judges did not expressly state the reasons for shifting of the burden of proof. It appears that the learned Judges in the Courts below, while discussing together the issues Nos. 5 and 6, reproduced above, came to the conclusion that the plaintiff in the suit, who is the respondent herein, had proved the issue No,6 by adducing convincing evidence that the defendant No,1, who is the appellant No,1 herein, had fraudulently obtained his signature on the alleged sale-deed, dated 14-1-1966. After dealing with the issue No,6, they embarked on discussing the issue No,5, the burden of proof whereof lay upon the defendant No,1/appellant No,1 and held that the evidence adduced by him to prove that the suit land had been sold to him under the sale-deed, dated 14-1-1966 was not convincing. It seems that it was in this context that the learned Courts below held that the plaintiff in the suit had proved issue No,6, while the defendant No,1 in the suit had failed to prove the issue No,5; and since both the issues related to the same matter viz. Execution of the alleged sale-deed, dated 14-1-1966, they concurrently held that the alleged sale transaction was fraudulent. It follows that the learned Court below clearly held, on appraisement of evidence led by the parties, that the sale-deed affirmed by the appellant and denied by the respondent was a fraudulent document. Their concurrent findings on facts are not liable to be set aside. The enlightening authority on this proposition of law is the case of Abdul Majid and others v. Khalil Ahmed, reported in PLD 1955 FC 38. Accordingly, there is no merit in the appeal and it stands dismissed with costs.