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(a) Civil Procedure Code (V of 1908)-

--0. XX, R: 5 & O.XLI, R. 31--Judgment, validity of--Judgment of Court based on reappraisal of evidence, determination of crucial issues involved in case, held, would not be violative of provisions of O.XX, R. 5 or O.XL1, R: 31 of Civil Procedure Code, 1908.

(b) Civil Procedure Code (V of 1908)__

--S. 10--Consolidation of suits--Effect--Failure of one party in consolidated suit to prove main issue in case relating to validity of sale-deed, held, would entitle opposite party in such suit to decree prayed for on basis of same document.

(c) Civil Procedure Code (V of 1908)-

---S. 100--Second appeal--.Concurrent findings of Courts below- Concurrent findings of Courts below on question of limitation, held, could not be disturbed in second appeal.--[Limitation].

(d) Specific Relief Act (I of 1877)--

---S. 39--Limitation Act (IX of 1908), Art. 91--Cancellation of document--Suit for--Limitation--Suit containing prayer for cancellation of document, held, would be governed by Art. 91 of Limitation Act. 1908.

Shamshad Ali Shah v. Syed Hassan Shah P L D 1964 S C 143; Mst. Hamida Begum v. Mst. Murad Begum P L D 1975 S C 624 ref.

(e) Evidence Act (I of 1872)--

---Ss. 102 & 103--Burden of proof--Burden .of proof though rightly placed. held, would, however, become irrelevant after production of evidence by parties.

(f) Specific Relief Act (I of 1877)--

---S. 42--Civil Procedure Code (V of 1908), S. 100--Second appeal- Declaratory suit--Maintainability--Contention regarding non-maintain ability of suit, held, could not be allowed to be raised in second appeal when no issue was framed or claimed in that respect in Courts below.

Ch. A . Waheed Saleem for Appellants.

Aitzaz Ahsan and Mian Ghulam Rasul for Respondent.

Date of hearing: 24th September, 1980.

This judgment will dispose of R . S . A . Nos. 202 and 203 of 19 80 -; which arise out of two suits consolidated by the learned trial Court for disposal and two separate appeals having been filed were dismissed by the lower appellate Court. The facts leading to the two suits may be briefly stated below.

2. Suit No. 374 of 1977 was filed on 10-10-1977 by Hakim Karam Ali, the predecessor-in-interest of the appellants. Hakim Karam Ali died on 26-10-1977 shortly after the filing of the suit and his legal representatives were brought on record. Hakim Karam Ali had filed a suit for a declaration that the sale-deed, dated 19-6-1964 in respect of Property No. 53, situate in Shahpur, Tehsil and District Sheikupura in favour of the respondent was void and liable to be cancelled having been obtained by fraud and being without consideration. The respondent was the second wife of Hakim Karam Ali deceased and the cause disclosed by the original plaintiff. in paragraph 4 of the plaint, was that on account of his illness he could not attend to his business and the respondent compelled him to execute a power of attorney. It was further stated that he had gone to the District Courts in that ailing condition and the respondent who was in collusion with the scribe got a sale-deed executed in her favour in respect of the above-described property. It is also stated that his thumb-impression and signatures were also got procured in the Office of the Sub-Registrar in spite of the fact that no consideration had been paid to him. Hakim Karam Ali described himself to be a simpleton and that the respondent has exerted her undue influence for the reason that she was his second wife. The suit was contested by the respondent and all the allegations were specifically denied. It was stated by the respondent that the original plaintiff had died after a short illness preceding the filing of the suit and that at the time of execution of the sale-deed was perfectly hale and hearty.

3. The respondent had also filed Suit No. 702 of 1977 on 24-10-1977 against the appellants in which she prayed for a declaration in respect of the same property which had been sold to her by her husband Hakim Karam Ali being Property No. 53, situate in Shahpur, Tehsil and District Sheikhupura with a consequential relief that her possession be not disturbed. It seems that the respondent had filed a suit only because a suit had been filed by her husband earlier. The respondent claimed herself to be in possession of the property in question. This suit was contested by the appellants. Both the suits were consolidated by the learned trial Court, vide his order, dated 29-1-1978 and the evidence was recorded in both the suits on the following issues:

(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.

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