2003 PLP 1204 (MLD)

PARVEZ AHMAD, J.

The appellant through this Regular First Appeal has challenged the judgment and decree of the learned trial Court dated 17-7-1995 by virtue of which his suit for specific performance of the contract was dismissed.

2. The facts in brief are that the respondent is owner of the property measuring 63 Kanals and 9 Marlas, fully detailed in Para No.1 of the plaint, who agreed to sell the same in favour of the appellant through an agreement dated 20-1-1991 for a total consideration of Rs.3,20,000 and out of which an amount of Rs.1,50,000 was paid to the respondent as earnest money at the time of execution of the above said agreement .The remaining amount of sale-consideration was agreed to be paid at the time of execution of the sale-deed. The respondent avoided to perform the contract, hence, the appellant/plaintiff filed a suit for specific performance of this agreement to sell. The suit was resisted by the respondent/defendant with the averments that no agreement to sell was either executed in between the parties or any amount as earnest money was ever paid by the appellant to the respondent .The alleged agreement to sell was stated to be the result of fraud .The learned trial Court, from the divergent pleadings of the parties, framed the following issues:-- (1) Whether the defendant entered into agreement to sell dated 20-1-1991 for consideration of Rs.3,20,000 and received a sum of Rs.1,50,000 as earnest money ? OPP. (2) Whether the impugned agreement to sell is fraudulent, mala fide and without consideration ? OPD. (3) Whether the plaintiff has cause of action arid the suit is maintainable ? OPP. (4) Relief. The plaintiff in support of his claim has produced Abdul Wahid as P.W.1, Liaqat Ali as P.W.2 (Marginal witnesses of agreement to sell), Kafiat Hussain as P.W.3 and the plaintiff/appellant himself appeared as P.W.4 to rebut this evidence of the appellant/plaintiff, the respondent/defendant examined Ghulam Abbas as D.W.1, Ghulam Muhammad as D.W.2 and himself appeared as D.W.3. The learned trial Court after hearing the arguments proceeded to dismiss the suit vide judgment and decree dated 17-7-1995. The appellant feeling himself aggrieved, as above-stated, has challenged this judgment and decree through this appeal.

3. We have heard the learned counsel for both the parties and scanned the record through their assistance. The facts for consideration are whether the agreement to sell was entered into in between the parties on 20-1-1991, whether the said agreement stands proved in accordance with law, if so, whether the appellant did pay any amount as earnest money and whether the appellant is entitled to the specific performance of the agreement .The agreement to sell, Exh. P.I, allegedly to have been executed on 20-1-1991. As per record and the evidence of the appellant the stamp paper was alleged to have been purchased from one Muhammad Akbar Butt and the said Muhammad Akbar Butt has not been produced in evidence. The stamp paper reveals that it was allegedly sold by Anjum Ali, stamp vendor, to Amir Din through Hussain Mehdi on 20-10-1991. This agreement to sell does not indicate to have been purchased from Muhammad Akbar Butt. The analysis of the statements of P.W.1 and 2 (marginal witnesses) reveal that this agreement was written by Muhammad Akbar Butt and as abovesaid Muhammad Akbar has not been produced in evidence. Apart from it, there are material contradiction in the statements of marginal witnesses with regard to date, time, place and execution of the agreement. Both the witnesses in their cross-examination clearly admit that neither any agreement to sell was executed nor any amount was counted in their presence. Both the witnesses simply affixed their signatures upon the agreement. There are also discrepancies in their statement with regard to their relationship with the appellant. However, in a suggestion put to them in the cross- examination, they admitted that Yaqoob was owner of the joint property with the respondent and there was a dispute in between the said Yaqoob and the respondent with regard to a tubewell over this land and throughout in that litigation the appellant had been acting as an attorney of the above-said Yaqoob. Even with regard to this fact that the said witnesses are also related to Yaqoob and Yaqoob was related to the appellant. They have contradicted each other in their statement. No register of the stamp vendor has also been produced in the evidence. In view of having raised a specific plea by the respondent as to the non- execution of the agreement and the said agreement to be result of fraud only due to a dispute in between him and Yaqoob, the onus to prove of the execution of the agreement stood heavily upon the appellant. The appellant has failed to discharge this onus to rebut the stance taken by the respondent. The appellant having failed to produce the scribe and the stamp vendor, register of the stamp vendor, having failed to establish the identity of the person, from whom the stamp paper was purchased, the witnesses of the appellant being interested witnesses and having close relations with Muhammad Yaqoob with whom the respondent had a dispute of land and tubewell and, the witnesses being also closely related to the appellant, the execution of the agreement to sell is not established in clear terms. The version of the respondent finds support from the record in this regard, therefore, we hold that no agreement to sell was ever entered into between the parties.

4. The second aspect of the case is the alleged payment of earnest money of Rs.1,50,

000. No receipt with regard to the payment of this amount is available on record. None of the P.Ws. clearly states that the amount was either paid or counted in his presence, therefore, it is established that no earnest money was paid. After scanning the judgment of the trial Court in the light of the above facts, we are of the view that the learned trial Court rightly came to the conclusion that neither execution of alleged agreement to sell nor payment of earnest money was proved, thus the findings of the learned trial Court are hereby maintained.

5. In view of the above discussion, we do not find any scope for interference in the judgment of the learned trial Court, therefore we hold that this appeal is devoid of merits and as such we dismiss this appeal with no order as to costs. H.B.T./A-698/L Appeal dismissed.