1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from a judgment of a learned Single Judge of the Peshawar High Court in a second appeal.
2. This second appeal arose out of a suit filed by the petitioner herein for a declaration that be was the sole owner of the property left by his first cousin, Gul Khan, and for an injunction restrain-- ingthe respondents, who are the sister and the widow of the said Gul Khan, from receiving any amount out of the compensation money payable by the Government in respect of the acquisition of the said lands.
3. Gul Khan died in March 1943, and an inheritance mutation was attested thereafter by which the properties of Gul Khan were mutated in the following shares :-
(1) Mst. Taj Bibi (real sister)share
(2) Mst. Shabo (widow) (paternal cousin)-- share
(3) Habib Khan petitioner.-- share The petitioner based his title too these properties on the basis of an alleged sale by Gul Khan in 1942 in his favour by an unregistered sale deed.
4. The suit was contested by both the defendants who filed separate written statements. The written statement purported to have been filed on behalf of Mst. Taj Bibi admitted the plaintiff-petitioner's claim. Nevertheless, the trial Court found that the written statement was obtained from Taj Bibi by coercion. Tai Bibi had actually appeared before the Senior Civil Judge, Peshawar, in connection with the said suit and wanted to submit an application but she was forcibly taken away from the Court by the plaintiff and the plaintiff was later on arrested by the police.
5. The entire story of the plaintiff was found by the trial Court to be false and his suit was dismissed with costs.
6. On appeal, however, the Additional District Judge, Peshawar, maintained the findings of the trial Court with regard to the title sought to be set up by the petitioner on the basis of his alleged purchase from Gul Khan in 1942 yet he accepted the appeal in part and allowed him a decree to the extent of a 3/4th share ; 1/4th in his own right and 1/2 on the basis of the admission in written statement of Mst. Taj Bibi.
7. In second appeal the High Court on the 28th of May 1970, remitted the case back to the trial Court "to enquire as to whether the power of attorney was given by Mst. Taj Bibi to Mr. Abdur Rahman Khan and whether the written statement filed in Court was one filed by Mst. Taj Bibi and what part Mr. Fazal Ilahi Khan played, if any, as the power of attorney which is placed on the record is in his name attested by his agent".
8. In pursuance of this direction the trial Court held an enquiry and came to the conclusion that the written statement was procured by one, Fakir Muhammad, the brother of the first wife of the petitioner and what he gathered from the whole affair was that "either Faqir Muhammad had brought on the spot some female impersonating Mst. Taj Bibi or Habib Khan, in collusion with Fakir Muhammad, had duped Mst. Taj Bibi in obtaining her thumb-impression on the wakalatnama and written statement."
9. Mr. Fazal Ilahi Khan was the Advocate of the petitioner andMr. Abdur Rahman Khan stated that he had affixed his signature on the wakalatnama form of Mr. Fazal Ilahi Khan as the latter told him that the woman wanted to file a written statement admitting the claim of his client. He had, out of abundant caution, advised her to be represented by a different lawyer and to get her written statement drafted by a petition-writer.
10. Both these gentlemen were examined by the trial Court and they stated that the woman produced before them as Taj Bibi never uncovered her face before them and they did not know Mst. Taj Bibi personally.
11. Jafar Khan, the Court clerk of Mr. Fazal Ilahi Khan, deposed that it was Fakir Muhammad, the brother of the first wife of the petitioner who introduced the burqa-clad woman to him as Taj Bibi.
12. The High Court accepted the report of the trial Court and held that the written statement, even if it contained the thumb impression of Mst. Taj Bibi, did not advance the case of the petitioner, because, in any event, if the basis of his title was found to be false, so far as one of the defendants in the suit was concerned it was difficult to appreciate as to how that title could be upheld so far as the other defendant in the suit was concerned even if that defendant had admitted the claim of the petitioner.
13. We are in full agreement with the High Court that if the entire foundation of the cause of action is found to be false the suit cannot succeed in part on the same cause of action even as regards a defendant admitting the plaintiff's claim.
14. We are also in agreement with the High Court that the learned Additional District Judge had totally failed to notice that the trial Court had not accepted that Mst. Taj Bibi had filed any such written statement or that she bad of her own free will and accord admitted the claim of the petitioner.
15. Even in the trial Court she tried to protest but was forcibly taken away from Court by the petitioner.
16. In these circumstances, we see no substance in the contention of the learned counsel appearing in support of the petition that the High Court was wrong in not acting upon the admission of Mst. Taj Bibi in her written statement. This petition is, accordingly, dismissed.