1. GUL ZARIN KIANI, J.- This appeal under Order XLHI, rule 1 (m), Civil P.C. By Mst. Saleema Bibi, successor in-interest of original plaintiff in the preemption suit, and, respondent in the appeal filed in the Court below, is from a decision of learned District Judge, Sialkot Dated 4.9.1971 recording a compromise, and passing a decree in accordance therewith for dismissing the preemption suit.
2. 20 kanals, 17 marlas of land at village Phangat, in Tehsil Daska of Sialkot District, was owned by Mst. Fatima Bibi. She sold it to Sardar Khan and, his three brothers for a consideration of Rs.6,000/- on 25.11.1976. Sale was made by a registered deed. On 17.12.1966, Mst.Allah Bibi, as real sister of the vendor, and, co-sharer in the land sold brought a suit for pre-empting the above sale. Vendees resisted the pre-emption suit filed against them. On 2.4.1969, the trial Court gave decree for the land in suit to the pre-emptor on her paying Rs.6,0007- minus l/5th of pre-emption money already deposited, as sale price to the vendees by or before 10.5.1969, failing which the suit was to stand dismissed with costs. Vendees in the pre-emption suit preferred an appeal to the learned District Judge, Sialkot. In its course, on 18.7.1969, they filed an application under Order XXIII, rule 3 Civil P.C.
2. For recording of a compromise concluded between the parlies and deciding of the appeal in accordance with its terms. It was stated in the petition that the parties had settled the dispute. The appellants were prepared to perform their part of the compromise whereas the respondent in the appeal (Mst.Allah Bibi) did not abide by it. Composition Deed embodying the terms of compromise was annexed to the petition filed under Order XXIII, rule 3 Civil P.C. In reply, Mst.Allah Bibi denied the compromise. She stated that the appellants had a quarrel with her, and, for its settlement, had taken her thumb impressions on a blank paper. As the compromise was disputed, the Court recorded evidence of the parties for reaching of a conclusion about its correctness. Appellants who relied upon the compromise gave evidence of Qazi Abdur Rashid AW-1, who had scribed the composition deed mark 'A', Ghulam Haider AW-2, who was marginal witness of the composition deed and had witnessed its execution, and, the statement of one of them namely Bashir Ahmad.
3. Respondent was supported by the testimony of Dr. Hafiz Abdul Latif, Medical Officer, Civil Hospital, Daska RW-1, Ahmad Mukhtar RW2 and Muhammad Ibrahim RW-3, a special attorney of the respondent. It may be noted that Mst .Allah Bibi died in course of first appeal. Her daughter Mst.
4. Saleema Bibi succeeded to her estate, and, was substituted on the record. Muhammad Ibrahim was the special attorney of Mst. Saleema Bibi. Upon review of the above evidence, learned District Judge, found that compromise was effected between the parties as shown in the composition deed mark 'A' and gave effect to it in his judgment. Net result of the compromise upheld in the Court below was that the appeal was allowed, pre-emption suit brought by Mst.Allah Bibi dismissed, and, instead, her successor-in-interest namely Mst. Saleema Bibi found entitled to a sum of Rs.10,000/-; Rs.6,000/- as pre-emption money already deposited in Court plus Rs.4,000/- to be paid to her by the appellants by or before 4.10.1971, failing which their appeal was to stand dismissed and the judgment of the trial Court was to prevail. It is the decision that is being assailed at the instance of Mst. Saleema Bibi.
3. Upon hearing the learned counsel for the parties and examination of the original records, in my opinion, this appeal is bound to succeed for a remand to the learned Judge below for deciding of the appeal before him on merits in accordance with law. AW-1 held a licence for sale of stamps only. He did not hold a licence for writing deeds. Register maintained for sale of stamps was not produced by him in Court. Mst.Allah Bibi was not previously known to him. She was identified to him by the marginal witnesses of the composition deed. Composition deed was scribed at Kundan Sian, whereas, Mst.Allah Bibi belonged to village Phangat, situated in a different Union Council.
5. Marginal witnesses to the composition deed were related to the appellants in the Court below.
6. Except Ghulam Haider, none from them stepped in the witness box to support the compromise, and, writing of the composition deed at the instance of Mst.Allah Bibi. As said above, Ghulam Haider is also a relation of the appellants. As far Bashir Ahmad AW-3, his testimony is self- interested and cannot be safely relied upon for finding in his favour. There is no explanation for with-holding other marginal witnesses from the Court who are many in number. No attempt was made to identify the thumb impressions of Mst.Allah Bibi on the composition deed, land in suit was also situated at village Phangat. Composition deed was executed at Kundan Sian. Mst. Allah Bibi was not accompanied to Kundan Sian by any male member of her family. Reason for shifting the place for execution of the composition deed to Kundan Sian is not known from the record. Mst.Allah Bibi was an uneducated village lady. She had no independent advice. Deed of composition revealed that the settlement took place between Mst. Allah Bibi and Bashir Ahmad only. It contained no reference to the other appellants. As far a term in the composition deed about payment of mortgage money by Mst.Allah Bibi, when the land in suit vested in the appellants, it is not wholly unintelligible. Learned counsel for respondents failed to convince me about the reason for inserting this term in the (feed of compromise. Record clearly revealed that the parties had fallen out, on possession of the land in dispute and in course of a Tight between them received injuries at the hands of each other. Mst.Allah Bibi did not participate in the fight but Ibrahim her son-in-law was injured in it. The matter was reported to the police but it was settled amicably between the parties. It was admitted from the appellants' side that compromise was confined to the fight that had taken place, and, the civil appeal was not covered in it. The onus of establishing that the appeal was adjusted in a lawful manner through a compromise was on the appellants in the Court below who had alleged the same. Having due regard to the existing records, they had failed to discharge the burden of proof that lay upon them in this behalf. Sufficient convincing evidence was not produced by them to establish that Mst.Allah Bibi was a willing party to the alleged compromise and had put her thumb impressions on mark 'A'. Learned Judge below took an incorrect view of the record and raised erroneous inferences therefrom for finding in favour of the compromise.
7. In view of the aforesaid, I would accept this appeal, set aside the impugned decision and direct decision of the appeal filed by present respondents against the judgment and decree of the trial Court on merits by learned Judge below by leaving the parties to bear their own costs in this Court.
8. Records be returned.