1987 CLC 2482 (PLP)

(3) Whether the plaintiff is the owner of the disputed property and is entitled to a decree of possession in respect of the same property? (4) Whether the suit is vexatious and frivolous and the defendants are entitled to Rs.2,000 by way of compensatory (sic) as such? (5) Relief .

2. During the trial, while the evidence of the plaintiff was in the process of being recorded, on 19‑9‑1984 the defendant Muhammad Saleem and an Advocate Mr. Aziz Ahmad on behalf of all the defendants, offered to have the suit decided on the based of a special oath to be taken by the plaintiff on the Holy Quran to the effect that he had actually made a bargain for the house with Bashir and has not obtained a fictitious decree. It was further undertaken that if the plaintiff took the proposed oath then his suit may be decreed. The statement so recorded bears the signatures of Muhammad Saleem and Aziz Ahmad. Plaintiff accepted the offer and took the proposed oath in consequence whereof his suit was decreed on 19‑9‑1984.

3. Despite the case set up by Muhammad Sharif defendant No.4 in the Trial Court, of being a mere tenant of the house in dispute, an appeal against Trial Court's decree was filed by him alone. Therein he impleaded the plaintiff and Muhammad Saleem defendant No.1 as the respondents alongwith the legal heirs of the other two defendants Muhammad Saleh and Khushi Muhammad for the reason that they had in the meanwhile died and, while admitting that the offer was made by the defendant Muhammad Saleem, the appellant Muhammad Sharif also took up the plea that there was no counsel by the name of Aziz Ahmad engaged by him so that his offer could not be binding on him. The appeal was heard by a learned Additional District Judge who preferred to uphold the sanctity of the judicial record and observed that until and unless the trial Courts observation with regard to the counsel on behalf of the defendants having made the offer was shattered by some solid reason, it could not be believed that a counsel for the defendants had not made an offer binding on all the defendants. He also took notice of the fact that the three defendants whose rights of ownership were actually involved in the suit had not filed any appeal against the Trial Court's decree and the tenant alone had come up to challenge its validity and dismissed the appeal by his judgment dated 2‑3‑1985 to uphold the decree of the Trial Court.

4. Muhammad Sharif, the said tenant‑defendant No.4, has now come up to this Court in this Second Appeal and the legal‑heirs of the two deceased defendants, namely, Muhammad Saleh and Khushi Muhammad, have also been joined as appellants Nos. 2 to 9 and Mst. Surrya Begum, one of the heirs of Khushi Muhammad deceased defendants, has been arrayed as respondent No.3 alongwith the plaintiff and Muhammad Saleem defendant No.1 cited as respondents Nos. 1 and 2 respectively.

5. At the preliminary hearing of this appeal held on 8‑6‑1985, learned counsel contended that Mr. Aziz Ahmad, Advocate, who had made the statement in the Trial Court, was not actually representing any of the parties in the suit. Trial Court's record was sent for to be made available within three Weeks to verify this contention. The same has since been received and despite the fact that more than two years gone by, the counsel for the appellants has refused to assist me with reference to the record which, he stated, was not necessary to be examined by him. However, I have myself gone through the Trial Court's file and whereas there is a statement dated 29‑5‑1983 available at page 27 signed by the same Aziz Ahmad under his statement described as that of counsel for defendant No.1, there is no Wakalatnama available on the record as that of Mr. Aziz Ahmad, Advocate who has signed as many as four forms for deposit of process‑fee on behalf of the defendants which are available at pages 159 to 166 of the Trial Court's record. The only Wakalatnama for the defendants available at page 89 is dated 11‑10‑1978 filed by Ch. Nasrullah Khan Waraich, Advocate and the written statement for the defendants was filed on 30‑10‑1978 as signed by Ch. Muhammad Iqbal Bhatti, Advocate even whose Wakalatnama is not available on the file. There is no doubt that Mr. Aziz Ahmad, Advocate was associated with the case on the side of defendants but his Wakalatnama is not available. No surprise that the Wakalatnama of Aziz Ahmad, Advocate may have been removed from the record to augment the case urged subsequent to the passing of the consent decree on the basis of Special Oath and since the case pertains to the Court of Civil Judge, Mandi Baha‑ud‑Din which is not a large town, therefore, it can be safely presumed that the learned trial Judge personally knew the local Advocates. Since in the proceedings recorded by him on 19‑9‑1984 he has described the statement about offer of special oath to have been made before him also by the counsel for the defendants which was also so signed by Mr. Aziz Ahmad, therefore, I am net persuaded to attach any importance to the non-availability of his Wakalatnama on the file of the Trial Court. A presumption of correctness attaches to the judicial proceedings and reference may with advantage be made to Katta R Venkatesayya and another v. Muhammad Ghouse Saheb AIR 1944 Mad. 4.50 wherein, on the authority of Reg v. Pastonji 10 Born. H.C.R. 75 and Rex v. Grant 110 E. Q‑ A 1092 it was ruled as under:‑

"When a question of fact arises as to what happened in the lower Court, the statement of the presiding judge is conclusive. No affidavit by an Advocate or a party is admissible to controvert the statement of the Judge." This judgment was cited with approval in Muhammad Zaman v Abdul Ghaffar and 3 others P L D 1980 Lahore

582. It was for the defendants to have rebutted the presumption on the basis of satisfactory evidence to the effect that he was net the counsel for all the defendants when he made the said statement of offer but they have not only not cared to produce any evidence. on the point but have, on the contrary, also acquiesced in his authority, to make such a statement by not filing any appeal against the trial' Courts decree which was assailed by defendant No.4 alone who admittedly is a mere tenant and does not have any title in the house in dispute. Joinder of the legal heirs of the other two defendants as co‑appellants now in this second appeal with him, does not equip them with a locus standi to contest the matter.

6. Upshot of the foregoing is that there is no reason made out for interference with the decree passed in favour of respondent No.1 on the basis of special oath. The R.S.A. is accordingly dismissed in limine. M.B.A./391/M‑L???????????????????????????????????????????????????????????????????? Appeal dismissed.