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Second Civil Appeal No. 338 of 1978, decided on 31st August, 1986.

‑‑‑Art. 78‑‑Admissibility of document‑‑Genuineness of‑‑Admissibility of document in evidence is one thing and genuineness thereof is another‑ Admissibility of document in evidence, held, would not mean that contents of such document had also been accepted by Court as genuine.

P L D 1977 Lah. 267 ref.

‑‑‑S. 100‑‑Second appeal‑‑Finding of fact, concurrently arrived at by two Courts below on question of fact, held, could not be displaced in second appeal except in case of misreading of evidence, wrong consideration of material evidence on record and misapplication of law by Courts below.

A I R 1946 All. 178 ref.

K . M . Nadeem for Appellant.

Jhamat Jethanand for Respondents.

Date of hearing: 31st August, 1986.

The appellant had challenged in this second appeal the judgments of the two Courts below whereby the suit of the plaintiff was dismissed by the trial Court and appeal filed against that judgment was dismissed by the Additional District Judge, Hyderabad.

2. The facts in brief are that the appellant filed a suit for recovery of Rs.4,000 alleged to have been advanced by her to late Zahid Hussain, who was son of respondent No. 1, husband of respondent No. 2 and father of respondent No. 3. According to the appellant, she advanced the loan to late Zahid Hussain on 9‑12‑1967 who executed a receipt on the said date in favour of the appellant. Zahid Hussain died on 2‑12‑1969. The deceased had also left one Will and in the said Will, he acknowledged the sum of Rs.4,000 as payable to the appellant. The suit was filed after the death of Zahid Hussain against the respondent. The respondent No. 1 who is the real sister of the appellant admitted the claim of the appellant while respondents 2 and 3 denied the claim and alleged that the said receipt and Will were forged and never executed by Zahid Hussain. It was further alleged that appellant in collusion with respondent No. 1 filed the suit and various other suits against respondents Nos. 2 and 3. The pleadings of the parties gave rise to the following issues:‑‑

(1) Whether the bond in question was executed by deceased Zahid Hussain

(2) Whether the said bond is forged document and is without consideration

(3) Whether defendant Zahid Hussain has left any Will in which he had acknowledged the amount of bond in question as payable to the plaintiff

(4) Whether the suit is not maintainable

(5) Whether the defendants Nos. 2 and 3 are entitled to special costs

The appellant examined herself and P. Ws. Shahid Khan and Muhammad Aslam in support of her case. The respondent No. 1 examined herself only while respondents 2 and 3 led no evidence.

3. Learned counsel for the appellant has contended that the appellant has been able to prove her case. Diary Exh. 68 maintained by the deceased was also produced which shows that the deceased had admitted the amount of Rs.4,000 to be paid to the appellant. Exh. 18 is a Will. All these documents would show that the plaintiff had discharged the burden. It has been established that the document had been executed. The two attesting witnesses namely, Shahid Khan and Muhammad Aslam have proved the execution of document and the consideration. Respondent No. 1 who was mother of the deceased had supported the claim of the appellant and in view of such facts the findings of the two Courts below are erroneous.

Learned counsel has stated that the document has been proved in accordance with section 67 of the Evidence Act. He has relied upon P L D 1977 Lah. 267 wherein it has been observed that when the admission of document in evidence is not objected such documents can be safely held to have been duly proved. The admissibility of document is one thing and the genuineness of the document is another thing. The document may be admissible in evidence even if not opposed to by the other side but it does not mean that if any objection was taken by the other side the contents of the documents would be accepted also. The respondents 2 and 3 have not admitted the execution of the document therefore, the burden was upon the appellant to show that document was validly executed for consideration. The two Courts below have categorically held that the execution of the document was not established and once there is concurrent finding of fact upon a question of fact then in second appeal that finding cannot be displaced unless the appellant shows that it is a case of misreading of evidence or wrong consideration of material evidence on record. He has also referred to AIR 1946 All. 178 wherein it has been held that word 'execution' includes attestation as required by law.

In the present case, the appellant has not been able to prove the signature of the deceased. Section 67 of the Evidence Act lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. As the signature of the deceased has not been admitted by the respondents 2 and 3, it was the duty of the appellant to prove the signature of the deceased through reliable evidence. It has been observed by the learned 1st Appellate Court that Zahid Hussain was an employee and his signature could have been got produced from the record of his pay bill. It was the duty of the appellant to have proved ‑the signature of Zahid Hussain. It has been further observed that evidence of appellant and Shahid Khan are unworthy of any belief. The appellant in her statement before the District Judge had stated that the deceased had left the pronote in his handwriting but in her deposition in this case she has stated that the document was typed by the deceased. Thus, the appellant has given two contradictory statements. Her attesting witness Muhammad Aslam before the District Judge has deposed that he had seen the deceased for the first time at the time of execution of the document whereas in his deposition in this case he stated that he knew the deceased prior to the execution of document. The High Court may, interfere in second appeal on any of the following grounds namely:‑‑

(a) the decision being contrary to law or usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

None of the grounds exist in the present case. The High Court is not entitled to go behind the finding of fact which did not result from the misconstruction of document or misapplication of law. The views of the two Courts below are based on facts and there is concurrent finding that the appellant has not been able to prove the signature of the deceased. The finding of fact cannot be set aside merely because there may be a second view of the matter.

In the result this appeal has no force. The same is dismissed without any order as to costs.

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