1998 PLP 536 (MLD)

5. In this revision, the judgment of the learned District Judge has been called in question.

6. Learned counsel for the petitioner argued, that the learned trial Court had recorded a well reasoned judgment but the learned District Judge, without attending to the reasons given by the learned trial Court, reversed the findings, therefore, the judgment in appeal cannot sustain. He further argued, that the agreement, Exh. D-1, in favour of the petitioner was proved beyond doubt but the same was excluded for extraneous reasons and on the grounds which are not recognized in law. It was also argued, that the sale-deed, in favour of the petitioner, executed prior to the filing of the suit, would take precedence over the agreement of respondent No. 1 and that it could not be treated as nullity, on the plea of lack of consideration. He further argued, that the ground on which the agreement of the petitioner has been excluded could not be urged because of lack of pleadings and evidence.

7. Conversely, learned counsel for respondent No. 1, while supporting the judgment of the learned District Judge, argued that finding of fact having been recorded in appeal, it could not be challenged in revisional jurisdiction. He further submitted, that the sale-deed of the petitioner was a sham document and that the agreement was fabricated one.

8. Syed Zamir Hussain Tirmizi Advocate, learned counsel for respondent No. 2 (Kala), submitted, that he has instructions to state that the agreement in favour of petitioner was genuine, the property was validly sold m his favour and that the said agreement was implemented by transfer of property through sale deed in favour of petitioner and also that the agreement claimed by respondent No. 1 was never executed by respondent No. 2 and the same was not binding upon him.

9. Since the judgment of the learned trial Court was reversed in appeal, therefore, the entire evidence was re-examined with the help of learned counsel for the parties.

10. While reversing the findings of the learned trial Court, the learned District Judge, proceeded to find fault with the execution of agreement Exh. D-1, in favour of the petitioner and went on to observe, that it was not genuine and also that it was forged or fabricated one. In doing so, the reasons which prevailed upon the learned District Judge, were, that the agreement was not drafted by Deed Writer, and that no separate receipt was executed for payment of earnest money. Similarly, the sale-deed was excluded on assumption that the consideration was not proved and, therefore, it was a sham document.

11. The reasons, which prevailed upon the learned District Judge, were) absolutely illegal and otherwise unjustified. It is not requirement of law nor any rule provides so, that the agreements must be drafted by a Deed Writer and that only those agreements which are drafted by a Deed Writer are admissible and the others which are drafted by the parties themselves or by private person, should be excluded from evidence. This is a common knowledge, that everyone does not rush to the Deed Writer. There are many instances, where the agreements are found to have been executed by the parties themselves or even some times they seek the assistance of some educated person, if the deal is amongst illiterate person. This would not mean, that if an agreement, prepared by the parties themselves or drafted by a person other than a Deed Writer, should be looked into with doubtful eyes. Similarly, when an agreement is executed, then it is not always necessary, that the payment of earnest money, mentioned therein, shall also be acknowledge through a separate receipt.

12. In this view of the matter, the learned District Judge, mis-directed himself and travelled on absolutely illegal assumptions, while doubting the genuineness of the agreement and excluding the same from consideration.

13. As a matter of fact, there was no reason for disputing the execution of document or making inquiry into the question of its execution, in view of the position taken by the parties in the pleadings. Reference can be made to paragraph No. 4 of the plaint wherein respondent No. 1, had not said a single word against the agreement of sale and his only plea was that a sale-deed had been executed by respondent No. 2 which was fictitious or without consideration. Meaning thereby there was no attack against the agreement and the attack against the agreement and the attack against the sale-deed was not on account of denial of execution but on different reasoning. The plea that a document is without consideration or fictitious rests on altogether different footing than the plea where the execution of a deed itself is in issue.

14. Another factor which was over looked in this case was, that respondent No. 1 did not appear in the witness-box to raise the plea of agreement of sale being forged, fictitious or without consideration. Instead his attorney appeared as P.W.5. It is important to note, that this witness appeared after the evidence in rebuttal, of petitioner had concluded. The evidence of petitioner was concluded on 6.4.1978 while Muhammad Yasin, P.W.5, attorney of petitioner appeared on 22-2-1979. In his examination-in-chief, he does not say a single word about the agreement but only says that the sale executed in favour of Wali Muhammad was forged and fictitious. The issue was, which one of the two agreements was prior in time and, therefore, the existence of sale agreement was a point of determination. No evidence was led by respondent No. 1 to question the validity of the sale agreement and his main stress had been against the sale-deed. Even regarding sale-deed, in the written statement, it was not termed as forged but in the examination-in-chief, for the first time, the attorney termed it as fictitious and forged. This is not the end of the matter. In cross-examination, when the witness was confronted with the existence of prior agreement of sale, he deposed as follows:-- The attorney simply denied the suggestion but did not state that the agreement of sale was fictitious, forged or fabricated one. So much so, no suggestion of agreement being forged or fictitious, was given to Wali Muhammad when he appeared as D.W.5. Even this was not suggested in cross-examination, to Wali Muhammad that the agreement of sale did not exist in his favour prior in time or that the sale-deed was fabricated or forged one and in cross-examination except one sentence which was of inquisitive nature, rest of cross-examination did not touch, either the agreement or the sale-deed. In this back-drop, it could not be said that the existence of the sale agreement was in issue or had been disputed or was otherwise not established. The non-appearance of respondent No. 1 in the witness-box, to avoid cross-examination, the absence of affirmative statement by e his Attorney, against the agreement Exh.D. 1 and absence of any cross- examination, in this regard to the statement of D.W.5, were sufficient to give rise to an adverse presumption against respondent No. 1 and were good enough to safely assume that the sale agreement was executed.

15. Even otherwise, sufficient evidence existed on record to prove the execution of the agreement. D.W.1 appeared and deposed that he had written Exh. D-1 and that Rs. 10,000 was paid in his presence. D. W.2 Abdul Sattar, had deposed that D.W.1 was written in his presence and he was a witness to the document and that Rs. 10,000 was paid at the time of the agreement in his presence when Kalay Khan thumb marked the document. D.W.3 Mukhtar Ahmed had deposed that Exh. D-1 was witnessed by him and it was thumb marked by Kalay Khan who received Rs. 10,

000. D.W.4 was also a witness to the agreement. Exh. D. 1 was not executed by Kalay Khan or that it was forged or that it was ante dated. This being so, there was sufficient evidence on record to establish the execution of agreement Exh. D-1.

16. The learned Trial Court considered the above evidence and concluded on cogent reasons, that execution of agreement Exh. D. 1, in favour of the petitioner, which was prior in time, was proved. Amazingly, the learned District Judge, misdirected himself, while proceeding on assumption, as if the sale agreement was in issue or as if he was expected to dilate as to the execution of the agreement of sale. Even otherwise, before this Court also, learned counsel for respondent No. 2 Kalay Khan, has candidly admitted that the sale agreement Exh. D-1 was genuinely executed by this client which was prior in time.

17. In this case, Exh. D-4, the sale-deed was also, illegally treated as a sham document, on erroneous assumption as if a registered document of sale becomes nullity if the price is not paid. This view is not in consonance with section 54 of the Transfer of Property Act which contemplates that the sale can be for the price paid or promised to be paid. If the document is registered in accordance with law it cannot be annulled, for the sole reason that the balance sale price was yet to be paid. The earnest money of Rs. 10,000 was proved by the witnesses, referred to above and even if a question had arisen as to the payment of balance price against the sale-deed, only right, which the vendor could have was to file a suit for recovery of money. Reliance can be placed on Muhammad Nawaz v. Muhammad Hayat and others (1972 Law Notes (SC) 153), where it was observed that the sale-deed could not be cancelled on the ground that the consideration had not been paid. It was further observed, that a distinction has to be drawn in the cases where the matter rests simply on contract and where it has passed the stage of an executed conveyance and in the latter case more non -payment of consideration will not render the transaction void or viodable. In this view of the matter, even the sale-deed Exh. D.4, which was executed prior to the filing of the suit, could not be ignored, particularly when it was a registered document and its execution was never denied by the owner. Even its execution has been frankly conceded by the learned counsel for respondent No. 2, while appearing in this Court.

18. From what has been noted supra, it will be observed that the judgment of the learned District Judge, being a result of non-consideration of the evidence, misreading of the record, mis-interpretation of the pleadings, mis conception of the real issue and in violation of law, cannot sustain.

19. The argument, that the order cannot be interfered with in revisional jurisdiction, as a finding of fact was recorded in appeal, is without substance and devoid of force. In Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), it was observed that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, and comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. In Ali Muhammad and 13 others v. The Province of West Pakistan and another (PLD 1.969 Lahore 951), it was observed that if the Courts below, due to erroneous view on main question of law, reaching conclusion, it will amount to failure of exercise of jurisdiction vested in them in accordance with law. In Shiekh Muhammad v. Mst. Hashmat Sultana (1989 SCMR 34), it was ruled, that findings of fact based on no evidence or in admissible evidence or if perverse, causing grave injustice, would not be immune from interference in revisional jurisdiction. In Muhibullah Khan v. Sadiq Khan (1986 SCMR 270), it was observed that the concurrent findings of facts, if arrived at by ignoring evidence, interference in revisional jurisdiction can be made by correctly reading evidence. In Jan Muhammad Khan v. Shah Mir Hussain and others (1985 SCMR 2029), it was observed, that if there is a misreading of document by Courts below, it will justify interference, even in concurrent findings of facts. It was further observed, that if on examination of record it is found that the Courts below had arrived at an erroneous conclusion which was based on misreading of documents, the same will justify interference with concurrent findings of fact. In Shah Gul and others v. Mst. Shamim Ahktar and others (1990 SCMR 110), it was held that where material circumstances were overlooked by the Court below, interference in revisional jurisdiction would be permissible.

20. As observed in their preceding paras, the learned District Judge, misread the pleadings, misunderstood the real position and defence taken by the respective parties, and erroneously assumed that there was a dispute as to the execution of the sale agreement and the findings were reversed in appeal on illegal assumptions and by misreading of the record. It has further been noted that the learned appellate Court did not consider, that the execution of the sale agreement was not seriously disputed, either in the pleadings or in the evidence and that the execution of the agreement Exh. D.I was otherwise proved beyond doubt. It was never the case in the plaint that the date in the agreement was changed or any ante date was inserted. It was also ignored that respondent No. 1 did not appear in the witness-box without any reasonable cause. Again it was wrongly assumed that only agreement executed by the deed writer could be accepted as genuine. This being so, the judgment of the learned District Judge, was based on erroneous view of law, misreading or non-reading of the material on file and otherwise not sustainable which can be interfered with, in the revisional jurisdiction, as the order suffers from material illegality and jurisdictional error.

21. The learned trial Court, while refusing relief of specific performance, to respondent No. 1, had clearly observed that the agreement of petitioner, Exh. D-1 being prior in time, would take prudence over the agreement or respondent No.

1. The learned trial Court also relied on AIR 1930 PC 99, where it was held as follows:

"a suit for specific performance of contract for sale of property dated 25-10-1920 as against a person who had entered into a contract for the purchase of the same property on 22-10-1920 and who had obtained a registered conveyance, was dismissed agreeing with the High Court. "

22. The learned Civil Judge, further took the view, that respondent No. 1 was claiming number of extensions in the sale agreement and the reasons for the same, claimed by him were that the property was mortgaged with Agricultural Development Bank which was to be released before sale-deed. It was observed that no evidence was led on the point nor it was proved that the land was actually so mortgaged. It was, therefore, observed, that even otherwise, the discretionary relief could not be exercised, when the suit was filed after number of years, particularly, when during this period a final sale-deed had been executed in favour of the petitioner, in pursuance of a prior agreement of sale. Although the reasons given by the learned Civil Judge, in refusing discretion, were cogent, vet the appellate Court brushed aside the same, without recording any reasons. Obviously, the relief of specific performance was discretionary in nature, which could not be claimed as a matter of right, no matter, the discretion had to be exercised on sound judicial principle. One of the considerations for refusing discretion can be the changed situation where a right had been created in favour of a third party. It was a case, where agreement of sale, prior in time was proved in favour of the petitioner who had also got the sale-deed and thus the property stood finally conveyed to him. There was, therefore, no valid reason to disturb the prior purchaser, at the instance of a person who pleaded a false ground which he could not establish, and in these circumstances, the learned District Judge could not ignore the reasoning recorded by the learned trial Court, without extending any plausible ground. 23 For the reasons above, this revision is allowed, the impugned judgment, dated 14-7-1982, of the learned District Judge Faisalabad is set aside and the judgment of the learned Civil Judge is restored. In consequence, the suit of respondent No. 1 for specific performance shall stand dismissed. However, a decree for Rs. 4,000 i.e. return of the earnest money as allowed by the learned trial Court in his favour, shall stand restored. No order as to the costs. A.A./W-23/L Revision accepted.