1991 PLP 2359 (MLD)

Illiterate village lady

Compromise

Compromise deed executed by an illiterate village lady

Compromise having been allegedly executed at a village different from the one where said lady resided and no male member of her family was shown to have accompanied her to the place of execution of compromise deed

No attempt was made to identify thumb-impression of the lady

Lady, before executing such deed had no independent advice

Lady was, thus, not a willing party to the alleged compromise.

[Compromise]. Ch. Muhammad Farooq for Appellant. Ch. Mushtaq Ahmad Khan for Respondents. Date of hearing: 26th January, 1991. This appeal under Order XLIII, Rule 1(m), Civil Procedure Code by Mst. Saleema Bibi successor-in-interest of original plaintiff in the pre-emption 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 pre-emption suit. 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 25-11-1966. 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 28-4-1969, the trial Court gave decree for the land in suit to the pre-emptor, on her paying Rs.6,000 minus 1/5th 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 Procedure Code for recording a compromise concluded between the parties 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 Procedure Code. 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 A.W.1, who had scribed the composition deed mark `A', Ghulam Haider A.W.2, who was marginal witness of the composition deed and had witnessed its execution, and the statement of one of them namely Bashir Ahmad. Respondent was supported by the testimony of Dr. Hafiz Abdul Latif, Medical Officer, Civil Hospital, Daska R.W.1, Ahmad Mukhtar, R.W.2 and Muhammad Ibrahim R.W.3 a special attorney of the respondent. It may be noted that Mst. Allah Bibi died in course of first appeal. Her daughter Mst. 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 toy 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 this decision that is being assailed at the instance of Mst. Saleema Bibi. 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. A.W.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. Marginal witnesses to the composition deed were related to the appellants in the Court below. 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 for Bashir Ahmad A.W.3, his testimony is self-interested and cannot be safely relied upon for finding in his favour. There is no explanation for withholding 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 for 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 deed of compromise. Record clearly revealed that the parties had fallen out, on possession of the land in dispute and in course of a fight 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 by 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. In view of the aforesaid, I would accept this appeal, set aside the impugned decision and direct decision of the appeal fired 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. Records be returned. A.A./S-937/L Appeal accepted.