1986 PLP 2126 (CLC)

(1) Whether the plaintiff in Suit No. 702 of 1977 has no cause of action? O . P . D . (2) Whether the plaintiff in Suit No. 702 of 1977 is owner of the suit house? O.P.P. (3) Whether the Suit No. 702 of 1977 and the Suit No. 374 of 1977 have not been properly valued for purposes of Court-fee and jurisdiction, if so what is the proper valuation and Court-fee? O. P. P. (4) Whether the Suit No. 374 of 1977 is time-barred? O.P.P. (5) Whether the plaintiffs in Suit No. 374 of 1977 are estopped to file the suit? O.P.P. (6) Whether the sale-deed. dated 19-9-1964 is based on fraud, misrepresentation and without consideration and, therefore void and liable to be cancelled? (7) Relief. The learned Civil Judge, Sheikhupura, vide his judgment, dated 16-10-1979 decreed the suit filed by the respondent while the suit filed by the original plaintiff Hakim Karam Ali was dismissed. The appellant filed two appeals which were also dismissed by the learned Additional District Judge, Sheikhupura on 14-1-1980 and hence these two appeals.

4. The learned counsel for the appellants has raised the following contentions: (i) That the judgment of the lower appellate Court does not fulfil the conditions of Order XX rule 5 and Order XLI, rule 31, C.P.C. (ii) That the dismissal of the suit filed by the appellants could not automatically result in the decreeing of the suit filed by the original plaintiff Hakim Karam Ali; (iii) That the case has been decided without framing a specific issue regarding undue influence; (iv) That the onus of issue No 6 had wrongly been placed on the appellants and instead burden ought to have been placed on the respondent; (v) That the issue relating to limitation has wrongly been decided by both the Courts below; (vi) That the suit filed by the respondent was not maintainable under section 42 of the Specific Relief Act. ',46~ (vii) That the appellants were entitled under the law to show that the transaction was unconscionable and this plea could be examined under the definition and term "undue influence" as given under section 16 of the Contract Act. I have heard the learned counsel for the appellants at length but he has failed to substantiate the above contentions on the pleadings of the parties, evidence on record and the relevant law

5. The first contention would not detain us long. The judgment of the learned Additional District Judge is based on the reappraisal of evidence determination of crucial issues involved in the case and as Ix such cannot be said to be in any way violative of the provisions of Order XX, rule 5 or Order XLI, rule 31, C.P.C. The contention has no force and is hereby repelled.

6. Similarly, contention No. 2 noted above has also no force. Both the suits filed by the original plaintiff (Hakim Karam Ali) and the respondent had been consolidated as they raise common question of law and fact and no objection had been raised to the consolidation of the H suits. If the appellants had failed to prove the main issue in their own case relating to the validity of the sale-deed, dated 19-6-1964, the respondent was entitled to the decree prayed for on the basis of the same document. This objection has no validity

7. The third contention of the appellant that no specific issue as regards under influence had been framed is wholly without any force. I have already given the details of paragraph 4 of the plaint in which the whole case of Hakim Karam Ali for the cancellation of the sale-deed had been narrated and the issue framed truly reflected the contention of the appellants or for that matter his predecessor. The observations of the Courts below as regards undue influence were based on the evidence of the appellants themselves.

8. The only important point for consideration in, the present case is one of limitation. The concurrent findings of both the Courts below on issue No. 4 cannot be disturbed. In paragraph 7 of the plaint, the original plaintiff Hakim Karam Ali had stated that he had the knowledg 'e of the sale-deed a month before the filing of the suit when the respondent had started showing herself to be the owner of the property in dispute. From the evidence led by the respondent this contention was falsified. Noor Hussain (D.W. 1) admitted in the cross-examination that some 18 years ago Hakim Karam Ali deceased had informed him that he had sold the property in question to his wife Aziz Bibi for Rs.1,

000. Similarly Abdul Ghafoor (D.W. 2) admitted that she lived in the property in dispute. Hafiz Abdul Chani (D.W. 3) stated that he did not know whether Hakim Karam Ali had- sold the property to the respondent. Sanaullah one of the appellants appeared as D.W. 4 and did not state a single word as to when his father had come to know about the execution of the sale-deed. As here is no evidence on record to show as to when the original plaintiff had come to know of the sale-deed the evidence produced by the respondent was considered by both the Courts below for giving a finding against the appellant. It was rightly held that Hakim Karam Ali had the knowledge of the sale-deed. Hakim Karam Ali was duly identified at the time of the execution of sale-deed also at the time when the power of attorney (Exh. P.2) was executed by the respondent in favour of her husband Hakim Karam Ali. The original plaintiff was also present at the time of the sanctioning of the mutation. From this unflinching evidence it cannot be said that Hakim Karam All had no knowledge of the execution of the sale-deed and he kept quiet for 13 years before he filed the suit only a few days before his death. The sale-deed (Exh. P.1) was a vital documents and had to be cancelled before granting any relief to the original plaintiff. I have already given details of the prayer in the suit which was one for cancellation of the document and as such Article 91 of the Limitation Act was fully attracted to the facts of the present case and reliance may be placed on Shamshad Ali Shah v . Syed Hassan Shah P L D 1964 S C 143 and Mst. Hamida Begum v. Mst. Murad Begum P L D 1975 S C 624.

9. The next contention of the appellants that the burden had wrongly been placed on the appellants has also no force. In the first instance, the burden had rightly been placed on the appellants and in the second place the question of onus becomes wholly irrelevant after the evidence is led by the parties.

10. As regards the contention of the appellants that the suit filed by the respondent was not maintainable under section 42, the same is also without any force. It is admitted by Abdul Ghafoor (D.W. 2) produced by the appellants that the respondent was living in the F property. Sanaullah one of the appellants appearing as D.W. 4 did not depose in his statement that the respondent was not occupying the property in question. This contention cannot be permitted to be raised at this stage, when no issue had been framed nor claimed in the Courts below.

11. No ground has been made out to interfere in the concurrent findings of both the Courts below. These appeals have no force which are hereby dismissed with costs. H . B . T . _ Appeal dismissed.