2006 PLP 690 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against judgment, dated 15-11-1999 passed by learned Single Judge of Lahore High Court, Lahore, in Chambers whereby the revision petition preferred on behalf of petitioners has been dismissed and judgment of Appellate Court, dated 30-10-1998 was kept intact.

2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect that "the petitioners filed a suit for specific performance of alleged agreement to sell, dated 20-2-1982, against the respondents, claiming that the respondents had agreed to sell the suit-land to them for a consideration of sum of Rs.30,000 and had received the same amount at the time of execution of the agreement vide receipt Exh.P.2. This suit was contested by the respondents who denied any sale transaction, the execution of the agreement, receipt or any payment of consideration having been received by them. Issues were framed, parties were put to trial and the learned Civil Judge, seized of the matter by giving his findings on issues Nos.3 and 4, in favour of the petitioners, came to the conclusion ,that the respondents-defendants did execute the agreement and had thus are entitled to the specific performance. Suit was allowed on 10-2-1988. Against the above respondents preferred an appeal, which has been allowed by the learned Appellate Court on 30-10-1988, reversing the findings of the trial Court on the above mentioned material issues, holding that the petitioners have failed to prove the valid execution of the document." Being aggrieved a revision petition was filed which met the same fate and dismissed vide judgment impugned.

3. The prime contention of Mr. M. Aftab Iqbal Chaudhree, learned Advocate Supreme Court on behalf of petitioners is that execution of agreement has been proved by adducing consistent, trustworthy and confidence inspiring evidence which has been ignored by the learned Appellate Court and revisional Courts without assigning any cogent reasons which resulted in serious miscarriage of justice. It is also contended that the statement of Noor Ahmed P. W.1 marginal witness cannot be brushed aside merely on the ground that he is son of the petitioners.

4. We have carefully examined the above mentioned contentions in the light of record of the case. The judgments of learned trial, appellate and revisional Courts have been perused thoroughly. The evidence, which has come on record, has also been examined carefully. The pivotal question needs determination would be as to whether the agreement to sell the land in question was executed by the respondent or otherwise? In order to prove the execution of agreement three witnesses were produced, version whereof was not relied upon and rightly so by the learned Appellate and revisional Courts for cogent reasons. For the sake of abundant caution we have also perused the statement of Noor Ahmed (P.W.1/marginal witness) who is the real son of petitioner but his statement does not find corroboration from any independent source. This corroboration could have been furnished by scribe who mentioned in a crystal clear manner that respondent was not known to him personally. In such view of the matter it cannot be said with certainty that agreement to sell was executed by the respondent. The statement of Karam son of Ameer (P.W.2) is indicative of the fact that he could not specify the contents and nature of the document whereon allegedly thumb-mark of the petitioner was affixed. Muhammad Khurshid (P. W.3) has mentioned in an unambiguous manner that respondent was not known to him personally and thus his statement has rightly been discarded.

5. From all the facts and circumstances it inevitably follows that the respondent failed to produce cogent, concrete and worthy of credence evidence to prove the execution of agreement to sell and remained unsuccessful to discharge his burden in this context. We may point out that in such-like cases in absence of forthright and convincing evidence no one could be deprived from his property. No error, infirmity or jurisdictional flaw could be pointed out warranting interference in the judgment impugned. The petition being meritless is dismissed. M.H./A-419/SC?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.