2000SCMR1391 (PLP)

CH. MUHAMMAD ARIF, J.

This appeal under sub-clauses (d) and (e) of clause (2) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against judgment, dated 8-2-1994 of the Lahore High Court, Lahore in R.S.A. No.61 of 1993 whereby the judgments and decrees of the Trial and Lower Appellate Courts, favouring appellant/plaintiff in his suit for specific performance of two agreements, were reversed.

2. The subject-matter of appellant/plaintiff's suit related to southern half-portion of Bungalow No.11-C, Model Town, Lahore, hereinafter referred to as disputed portion. The basis of the suit were two agreements, dated 28-4-1976 and 1-12-1977 allegedly executed by deceased Muhammad Akbar Khan in appellant-plaintiff's favour, agreeing to sell disputed portion to him for an amount of Rs.2,00,

000. According to him, deceased Muhammad Akbar Khan received an amount of Rs.1,00,000 at the time of execution of agreement, dated 28-4-1976 and a sum of Rs.80,000 was also paid by the plaintiff to the deceased at the time of execution of the second agreement, dated 1-12-1977. The remaining amount of Rs.20,000 was to be paid to the promisor at the time of the registration of the sale-deed, after the issuance of Transfer Order, TO for short, in his favour by the then Settlement Department, as an heir/son of Dilawar Khan, -the original transferee of the disputed portion.

3. Muhammad Akbar Khan (now deceased) filed conceding written statement admitting the execution of the agreements of sale. ,

4. The suit was contested by appellants in R.S.A. No.61' of 1993 claiming that Muhammad Akbar Khan had agreed to sell the disputed portion to them through agreement of sale, dated 16-3-1977 (D-4). Their case was that in pursuance of Exh.D.4, even possession of the disputed portion was delivered to them and that an Association Deed had been executed, accordingly.

5. On the demise of Muhammad Akbar Khan, his legal representatives were impleaded as defendants in the suit. His son Muhammad Asgher submitted a written statement contending that respondents Syed Ali Muzaffar and his son Syed Muhammad Ali Shamim (defendants Nos.3 and 4); promised to secure employment for him (Muhammad Asgher son of Muhammad Akbar Khan) provided he (Muhammad Asgher Khan) executes an agreement of sale of the disputed portion in their favour. It was for this reason that agreement of sale, dated 16-3-1977 was gone ahead without the knowledge of his father Muhammad Akbar Khan though he had no Power of Attorney in his favour and, therefore, said agreement was void ab initio. As regards Association Deed, dated 1-8-1978 filed before the Settlement Department, his case was that it was without lawful authority and was executed by him without the consent of his father Muhammad Akbar Khan.

6. The father of Muhammad Asgher Khan had stated in his own written statement that the disputed portion was sold by his son Muhammad Asgher Khan defendant No.2 fraudulently, with the result that the agreement, dated 16-3-1977 was void ab initio. Regarding possession, it was pleaded that Muhammad Asgher defendant No.2 as also defendants Nos.3 and 4 had hatched a conspiracy to dispossess the appellant/plaintiff from the house on 13-2-1979 in his absence and that he was entitled to get the possession of the disputed portion.

7. As mentioned above, Muhammad Ashger Khan defendant No.2 died during the pendency of the suit and his legal heirs were brought on the record. The array of parties, reflected in the Memo. of amended plaint, is to the following effect:-- Abdul Majeed son of Mr. Hashiar Khan, resident of Village Jallo, Tehsil and District, Lahore. Versus (1) Mst. Aisha Begum alias Subhani wife of deceased Muhammad Akbar Khan. (2) M. Saeed Ahmad son of Muhammad Akbar deceased. (3) Mr. Fareed Ahmad (minor) son . ) through (4) Muhammd Azhar (minor) son ) their (5)' Ilyas Mazhar (minor) son ) mother (6) Ahmad Mazhar (minor) son ) Mst. Aisha Begum. (7) Mst. Shamshad Akhtar d/o Myhammad Akbar, deceased. (8) Mst. Nasim Akhtar d/o Muhammad Akbar deceased. All residents of 524-A-2, Township Lahore. (9) Muhammad Asghar s/o Muhammad Akbar deceased. (10) Syed Muhammad Ali Shamim through Syed Ali Muzaffar II-C, Model Town, Lahore. (11) Syed Ali Muzaffar son of Fasih-ud-Din, attorney of r/o II-C, Model Town, Lahore. (12) The Deputy Settlement Commissioner-V, Faridkot House, Lahore. " The prayer clause in the memo. of amended plaint was couched in the following words:-- "It is, therefore, respectfully. prayed that a decree for possession through specific performance of half an portion (southern side) of Banglow No.C, Model Town, Lahore, may graciously be passed in. favour of the plaintiff directing the defendant Na.1 and the subsequent purchaser the defendant No.3 and his father and attorney the defendant No.4 to convey the property to the plaintiff by executing, registry before the Sub-Registrar, Lahore. It is further prayed that the defendant NO. I be ordered specifically, to perform both the agreements, dated 28-4-1976 and 1-12-1977 and to do all acts necessary to put the plaintiff in full possession of the half portion (Southern Side) of Banglow No.II-C, Model Town, Lahore and pay the cost of the suit." The respective pleadings of the parties are duly reflected in the issues struck in the suit which reads thus:-- "(1) Whether the suit is not maintainable due to preliminary objection No. l of the written. statement of defendants Nos. 3 and 4? OPD. (2) Whether the plaintiff has not come to the Court with clean hands? OPD. (3) Whether the suit is liable to be dismissed under Order 7, Rule 11, C.P.C.?OPD. (4) Whether this suit is collusive and its effect? OPD. . (5) Whether the defendant No. l has already specifically performed the agreement in favour of the defendants Nos.3 and 4, if so, its effect? OPD. (6) Whether the plaintiff is entitled for the specific performance of the agreements in dispute, if so, on what terms and conditions? OPD. (7) Whether the plaintiff is in possession of a portion of the disputed property, if so, how much and effect? OPD. (8) Whether the transfer orders in dispute are result of fraud and its plaintiff has no cause of action for this suit? OPD. (9) Whether the plaintiff has no cause of action for this suit?OPD (10) Relief.

8. Appellant examined two witnesses namely Nazir Ahmed and Rehmat Khan respectively as P.Ws.I and 2 and himself appeared as P.W.3 in support of the case. Documentary evidence of the plaintiff consisted of agreement to sell, dated 1-12-1977 (Exh.P.1), receipt, dated 1-12-1977 (Exh.P.2), certified copy of order, dated 7_-7-1979 passed by the Lahore High Court in Writ Petition 707-R of 1979 (Exh.P.3), copy of order, dated 20-11-1983, whereby Writ Petition No.708-R of 1979 was disposed of as withdrawn (Exh.P.4), certified copy of Memo. of Writ Petition No.707-R of 1979 (Exh.P.5), certified copy of interim order, dated 8-11-1983 made by Lahore High Court in Civil Revision No.1373 of 1986 (Exh.P.6), certified copy of Memo. of Civil Revision No. 1373 of 1986 (Exh.P.7), certified copy of Association Deed, dated 1-8-1978 approved by Deputy Settlement Commissioner, Lahore (Exh.P.9) and certified copy of an application of. Muhammad Asgher respondent/defendant (Exh.P.10).

9. On his own behalf the defendant Muhammad Ali Shamim examined his father/defendant Syed Ali Muzaffar his General Attorney as D.W.1, who also produced the following documents in support of his case:-- (1) Photo Copy of General Power of Attorney EXh.D.l. (2) Original agreement, dated 30-10-1975.Exh.D.2. (3)Agreement, dated 9-5-1975, Exh.D.3. (4) Agreement, dated 16-3-1977 Exh.D.4. (5) Registered Agreement, dated 8-11-1978 Exh.D.5. (6) Transfer order Exh.D.6. (7) Copy of order, dated 16-5-1984 passed by the Civil Court in suit titled Aisha Bibi and others v. Ali Muzaffar and others Exh.D.7. (8) Certified copy of Vakalatnama by Muhammad Akbar Khan favouring Fazalur Rehman, Advocate Exh.D.8. (9) Certified copy of order of D.S.C., dated 14-11-1977 (Exh.D.9).

10. The trial Court decreed the suit of the appellant on 26-10-1989. Under Issue No.1 it was held that the issuance of T.O. by the Settlement Department in favour of respondent-defendant Syed Muhammad Ali Shamim had no adverse effect on the maintainability of the suit. As no evidence was produced by the defendant-side to discharge the onus of proof regarding Issue No.2, the same was decided against respondent No.1/defendant Syed Muhammad Ali Shamim. Issue No.3 was also resolved against the defendant side, holding that the averments in the plaint that deceased Muhammad Akbar Khan had executed agreements, dated 28-4-1976 and 1-12-1977 were sufficient to clothe the appellant with a cause of action. Observing that no evidence was produced to establish collusion between the plaintiff and other defendants, even Issue No.4 was resolved against the defendant Syed Muhammad Ali Shamim. Under Issue No.5, it was held that as agreement of sale dated 28-4-1976 was executed in favour of the plaintiff when no agreement of sale had been executed in favour of defendant No.1 prior thereto i.e., prior to the said agreement of sale, dated 28-4-1976, the same is answered in favour . of the plaintiff. Issues Nos.6 and 9 were taken up together and it was held that plaintiff had the cause of action and was entitled to the specific performance of the agreements in dispute. Under Issue No.7 it was noticed that the plaintiff was out of possession and that the pendency of his possessory suit under section 9 of the Specific Relief Act, 1877, before the trial Court itself; was not fatal to the suit for specific performance. Under Issue No.8 it was held that as the plaintiff had not produced sufficient evidence thereon and as it was for the Settlement Authorities to look into the question of legality of the transfer orders on the ground of alleged insanity or otherwise of deceased Muhammad Akbar Khan, the same is liable to be decided against him.

11. Respondent/defendant Syed Muhammad Ali Shamim remained unsuccessful in his 1st Appeal against the judgment and decree, dated 26 -10-1989 of the learned Civil Judge 1st Class, Lahore before a learned Additional District Judge, Lahore, under section 99, C.P.C. The findings rendered by the learned trial Court in the overall context of the case as reflected in the issues struck by it, were upheld by the 1st Appellate Forum. It was towards the middle part of paragraph 15 of the judgment, dated 18-7-1993 that the documentary evidence of the parties was discussed, as below:-- " . . . . The documents regarding this,agreement from Exh.D.2 to Exh.5 are of no help to appellant in this behalf. These documents were not properly proved and it appears from the statement of D.W.1 that Exh.D.2 to Exh.D.5 were produced, by him in his examination-in-chief. In his cross-examination the witness admitted that his examination-in-chief was recorded in absence of counsel for plaintiff. Even otherwise, these documents do not inspire any confidence. Exh.D.2 shows that one thousand was paid at that time and total Rs.15,700 was paid. Exh.D.4 shows that Rs.23,000 were paid. Exh.D.3 shows that Rs.7,000 were paid. It is very strange that through Exh.D.3 and Exh.D.2 the total paid amount becomes Rs.8,000 then how in Exh.D.4 it was mentioned that Rs.23,000 were received. "

12. Respondents Nos. 10 and 11 Syed Muhammad Ali Shamim and Syed 4li Muzaffar filed regular second appeal before the Lahore High Court, .ahore impleading respondent/plaintiff as respondent No. l and the legal representative of late Muhammad Akbar Khan as respondents Nos.2 to 10. 1`he Deputy Settlement ;Commissioner was not impleaded as respondent in the appeal of the respondent-defendants under section 100, C.P.C. R.S.A. No.61 of 1993 was allowed, judgments and decrees passed by both the Courts below were set aside and appellant-plaintiff's suit was dismissed with costs throughout.

13. The findings regarding the availability of a right to the appellant/plaintiff for the specific performance of the Agreement EXh.P.I were held not to be in order as Agreement, dated 16-3-1977 Exh.D.4 was legally executed in favour of respondent/defendant No.

10. As regards the plea that Muhammad Asgher was not authorised by deceased-Muhammad Akbar Khan to enter into the Deed of Association Exh.P.8, it was observed that deceased Muhammad Akbar Khan was bound to abide by Agreement, dated 16-3-1977 to transfer the disputed portion to respondent/defendant and that the T.O. issued by the Settlement Department in favour of respondent Syed Muhammad Ali Shamim could otherwise be enforced by him against deceased Muhammadd Akbar Khan as. he".'.,could get the sale-deed executed by enforcing the said agreement of sale through Court, " Paras. 15 to 17 of the impugned judgment read thus:-- "

15. As observed earlier none of the legal representatives of Muhammad Akbar Khan or Muhammad Asgher appeared as witness to state that the appellant had not paid the remaining sale price to Muhammad Akbar Khan which according to his written statement he had paid. The agreement of sale, dated 16-3-1977 in the light of the above discussion stood completely performed and the appellant was no more required to file suit for specific performance of the same, he having acquired ownership rights derivable from document of title issued in his favour by the Settlement Authority which as observed above he could enforce against Muhammad Akbar Khan even though Muhammad Akbar Khan was not party to the association deed. The finding recorded by both the Courts below thus suffers from acute misreading, misconstruction and non-reading of evidence, as such, they are not sustainable. "

16. The trial Court remarked that though the respondent No: l failed to prove execution of agreement of sales, dated 2,8-4-1976 and 1-11-1977 but the same were held to have. been proved through admission of appellant No.

1. The trial Court observed that since in answer to a question put to respondent No.1 in his- cross examination he stated that the said two agreements were executed, therefore, it constituted an admission. The said answer of respondent No. l in the cross-examination is as under:-- I am afraid if this could by any stretch of imagination be construed to be an admission on the part of the appellant about the execution of the said two agreements. In the cross-examination respondent No. l must have been asked a question to challenge the legality and existence of the said two agreements which he had denied but the trial Court appears. to have not recorded the answer in proper form, that it did not convey the nature of the question correctly. Even otherwise if the said answer is taken, as such, the same even then does not amount to an admission on the part of the appellant about the execution of the said two documents which I have held are the products of nothing but collusion and the entire evidence in its totality alongwith the attending circumstances support this view. The son of Muhammad Akbar namely Muhammad Asghar was also in collusion with Muhammad Akbar Khan and they were trying to regain the property, which Muhammad Akbar Khan had already sold. "

17. In the light of the above finding it is held that respondent No. l had not approached the Court with clean hands and that the suit was also collusive, as such, findings on issues Nos.2 and 4 of the two Courts below are hereby reversed. Under Issue No.5 it is held that with the issuance of transfer documents by the Settlement Department in favour of appellant No. l agreement of sale, dated 16-3-1977 executed in his favour stands fully performed which transfer documents can very well be enforced against Muhammad Akbar Khan and his legal representatives even if Muhammad Akbar Khan himself was not party to the association deed (Exh.P.8). The findings on Issue No..5 are also reversed and this issue is decided in favour of the appellant. Under Issue No.6 it is held that the plaintiff/respondent No.1 is not entitled to specific performance of disputed agreements of sale, as such, Issue No.6 is also decided against him and the findings recorded by both the Courts below are reversed. The findings on Issue No.7 recorded by both the Courts below that the plaintiff was not in possession of the property are maintained. Under Issues No.8 and 9 it is held that the transfer orders issued in favour of appellant No.1 were enforceable against Muhammad Akbar and his legal representatives, as such, respondent No. l/plaintiff had no right to enforce the disputed agreements of sale as a consequence of which he can safely be held to have no cause of action. Issues Nos. 8 and 9 are accordingly decided."

14. Ch. Muhammad Khurshid, learned counsel appearing on behalf of the appellant, has objected to the reversal of the judgments and decrees of the first two Courts by the High Court on the ground that the appellant/plaintiff has been non-suited by not advancing cogent reasons in the judgment in appeal. According to him, the High Court should have remanded the case to the First Appellate Court in terms of Rule 23 of Order XLI, C.P.C. as the observations in the judgment in appeal were that the First Appellate Court had not dealt with each and every issue separately and that the decision of appeal by it was without taking into consideration the material evidence on record. He also referred to the material on the record, including Agreement of Association, dated 15-8-1978 declaring Muhammad Akbar Khan as a person of unsound mind, to contend that total price having been paid/adjusted out of the compensation Book of Dilawar Khan, father of Muhammad Akbar Khan (and Rehmat Khan), the result was that there was no need for entering into Agreement of Association by recognising the factum of Muhammad Asgher Khan being of unsound mind in order, dated 15-8-1978 (Exh.P.9). The main purpose of the other side was to defeat the rights of the appellant under Agreements, dated 28-4-1976 and 1-12-1977. The burden to prove Issue No.4, regarding the suit of the appellant being collusive, was on the defendant side and as they did not succeed is discharging the same, as held by the first two Courts below, the learned Judge of the High Court is in error in reversing the concurrent findings in the case by them. He concluded his arguments with the assertion that the First Appellate Courts had examined a very important aspect of the case i.e., that respondent Syed Muhammad Ali Shamim had disowned the agreement for sale in his Memo. of Appeal (in para. 15) by pleading that: -- "Muhammad Akbar Khan was neither an allottee nor a transferee of the Evacuee Property, no PTD was ever issued in favour of Muhammad Akbar Khan, therefore,, the deceased had not to execute any sale-deed, it has been wrongly held by the trial Court that Muhammad Akbar Khan (deceased) old the property in dispute to the appellant No.l vide agreement, dated 16-3-1977, as Muhammad Akbar Khan, was not the owner of the property in dispute. " But still the High Court proceeded with observing that it was for the appellant to prove the voidability of the Agreement. The High Court also failed to attach due weight ,to Exhs.P.4 and P.5 as also to the written statement of Muhammad Akbar Khan.

15. Mr. S. Raza Hussain Shamsi, learned counsel representing respondent No. 1, supported the impugned judgment, dated 8-2-1994 generally and specifically contended that the two Courts below had resolved No.8 against the appellant/plaintiff and that such findings could be reversed by the High Court while disposing of Second Appeal No.61 of 1993.

16. The first argument advanced on behalf of the appellant-plaintiff that the judgment in appeal in sans cogent reasons in the support, will be attended to after dealing with the other contentions.

17. The next plea .that the Hon'ble High Court should have remanded the case to the First Appellate Court under Rule 23 of Order XLI, C.P.C., as observations were that it had not dealt with each and every issue separately, appears to be the result of some misconception in relation to the very applicability of Rule 23 as also of the Lahore High Court Amendment therein adding Rule 23-A on 4-8-1936. These Rules are couched in the following words:-- "

23. Remand oT case by Appellate Court.--Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand that case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the. Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. "23-A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary the Appellate Court shall have the same powers as it has under Rule 23. " When the afore-referred Rules are read in conjunction with Rule 1 of Order XLII, C.P.C. which provides for application of the rules of Order XLI, P` C.P.C. to appeals from appellate decrees, it becomes abundantly clear that one of the preconditions for remand at both the levels is that: "--the decree is reversed in appeal and a re-trial is considered necessary --". Here, the decree of the trial Court was not reversed by the First Appellate Court and the material, which was not considered by it, was considered by the High Court threadbare while reversing the judgments of the Courts below. It is not the case of the appellant that he had made any cross-objections seeking production of additional evidence in .relation to any issue resolved against him, by the trial Court. Moreover, the disposal of R.S.A. No.61 of 1993 by considering the evidence on record as sufficient, obviously tantamounts to) saying that a retrial was not considered 'necessary' by the High Court.

18. The next argument in support of this appeal that there was no need for entering into the Agreement of Association (Exh.P.9) as the total price had been paid out of .the Compensation Book of Dilawar Khan, father of Muhammad Akbar Khan (and Rehmat Khan) by recognizing the factum of Muhammad Asgher Khan being of unsound mind in (Exh.P.9), need not detain us any further. Suffice it to say that the rights of the appellant under agreements, dated 28-4-1976 and 1-12-1977 did fall for consideration in the Regular Second Appeal under section 100, C.P.C., and the findings against the appellant/plaintiff were rendered after due consideration of his case. The judgments/decrees of the first two Courts below were reversed by the High Court after coming to the conclusion that the appellant had failed to prove the execution of the said agreements of sale and that the alleged admission of such execution was without any justification in law. The further finding in that behalf was that even if the alleged admissions were to be taken on its face value, the said documents being the product of collusion, which stands support by the totality of evidence on record, the appellant had no case to obtain specific performance of Agreement, dated 28-4-1976 and 1-12-1977.

19. There is no cavil with the proposition that onus of proof of Issue No.4 was on the defendant-side. While resolving this controversy the High Court came to the conclusion that the collusive nature of the suit of the appellant was starting one in the face. The detailed discussion in this behalf appears in para. 16 of the judgment in appeal. It is not the case of the appellant that the Second Appellate Court could not resolve the said issue No.4 the way it did. Even this criticism/argument does not advance the case of the appellant a wee bit.

20. Coming to the last point, it would be of interest to reproduce the admitting order, dated 16=11-1993 in R. S. A. No. 61 of 1993. "It is argued that the trial Court expressly held that the respondents/plaintiffs failed to prove execution of any of the two agreements allegedly executed in their favour by Muhammad Akbar the original owner, as such; the suit could not have been decreed against the appellants in whose favour Muhammad Akbar had already executed agreement of sale (Exh.D.4) which was a registered document. I have also noticed that Muhammad Akbar the original owner of the property and the respondents/plaintiffs were closely related being 'humzulf' therefore, the suit prima facie appears to be collusive. (2) Admit. Notice. " The discussion of the question regarding the weight to be attached to Exhs.P.4 and P.5 as also to the written statement of Muhammad Akbar Khan can now be taken in hand. It is not denied that Exhs.P.4 and P.5, being copy of order, dated 20-11-1983 whereby Writ Petition No.7008-R of 1979 was disposed of as withdrawn and certified copy of memo. of Writ Petition No.707-R of 1979 respectively, as also the written statement of deceased Muhammad Akbar Khan, are the 'pleadings' of the parties respectively, in writ jurisdiction of the High Court and in the instant litigation before the trial Court. It is trite law that pleadings are not evidence by themselves and that statements of a defendant in written statement could not be used as evidence when amounting to admission of plaintiff's pleas, without the examination of the concerned party in its support. See, Khairul Nisa v. Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Muhammad Ishaq v. Erose Theatre and others (PLD 1997 SC 109). That respondent/defendant Syed Muhammad Ali Shamim had disowned the agreement of sale in his favour in his Memo. of Appeal before the First Appellate Court, cannot be treated as evidence in the case of the appellant/plaintiff in that the agreements, which formed the basis of the suit of the appellant/plaintiff, were not admitted in evidence and being part of the collusion between the appellant and heirs of late Muhammad Akbar Khan, were rendered as ineffective in law, even otherwise.

21. We may now deal with the point which was deferred for consideration until after the others. A perusal of judgment in appeal clearly shows that the material brought on the record by the parties in support of their respective causes, was duly considered therein. In para. ll of the judgment in appeal, the following excerpt clinches the matter:-- "I have examined the agreement of sale, dated 16-3-1977 (Exh.D.4) which shows that it was executed by Muhammad Akbar Khan himself and not Muhammad Asgher Khan on his behalf. This agreement of sale is a registered document. This aspect of the case has not at all received consideration of the two Courts below which in my opinion amounts to acute misreading of the record. The very basis on which the said document was alleged to be void was not present. This is apart from the fact that in support of the plea raised by Muhammad Asghar in his written statement as also by Muhammad Akbar Khan, Muhammad Asgher Khan did not appear as witness to support and prove it. It is firmly settled law that a plea of fraud or any allegation that a particular document was void on account of the circumstances in the special knowledge of the person alleging the same must be proved by the person alleging it. Muhammad Asgher having not appeared as a witness in support of his own written statement and none of the other legal representatives of Muhammad Akbar Khan having also appeared as witness to prove the allegations made by Muhammad Akbar Khan in his against agreement of sale, dated 16-3-1977, same can safely be held to have gone Similarly, Exhs.P.1 and P.2 were also examined in juxtaposition with Exh.D.4. After coming to the conclusion that the appellant was in collusion with the other defendants, it was held, in para. 13, as below: -- "...Nazir Akhtar and Rehmat Khan P.Ws.1 and 2 respectively on the one hand and respondent No.1 on the other hand are closely related to each other, therefore, an inference can safely be raised from this circumstance apparent on the face of the record that they were in collusion with each other and prepared the said agreement of sale, dated 1-12-1977 in which it was stated that earlier agreement in 1976 was also executed in order to make out a case of execution of an agreement of sale in favour of respondent No.l earlier to the agreement of sale; dated 16-3-1977. From. these established facts it also emerges that this agreement of sale was in fact prepared much after 1-12-1977 i.e. after the association deed, dated 1-8-1978 (Exh.P.8) was executed by Muhammad Asgher son of Muhammad Akbar Khan on the basis of which a permanent transfer document was. issued to appellant No. I in order to get back the property, for, if Muhammad Akbar Khan on 1-12-1977 or even on 28-4-1976 intended to sell the property to his Humzulf/respondent No.1 he could conveniently enter into an agreement of association and produce the same before the Settlement Authorities and get the same transferred to him i.e. respondent No.1. It is clear that there was insurmountable hurdle on account of the Settlement Authorities having issued Transfer Deed to the appellant that they adopted the device of ante-dating the agreement of sale, dated 1-12=1977 thereafter. In order to hold this, no evidence was required as the facts brought on the record and the events speak (for) themselves apart from the fact that the attorney of the appellant who was his father categorically stated in his evidence that Muhammad Akbar Khan and respondent No. l played fraud and blackmailed him. No other evidence was required to hold that the suit was collusive and, that neither agreement of sale, dated 28-4-1976 was ever executed nor agreement, dated 1-12-1977 was executed on the said date, therefore, execution of both these documents have not been established, and merely because Muhammad Akbar Khan who was in collusion with respondent No.1 admitted to have executed those documents was not of any use to respondent No.1 as against the appellant who had already acquired rights in the property." The learned counsel was not in a position to substantiate his argument that cogent reasons were not advanced in support of the judgment in appeal. We find that such reasons in the judgment in appeal, are duly supported by the material available on the record.

22. No other point was urged.

23. This appeal is dismissed leaving the parties to bear their respective costs. . Q.M:H./M.A.K./A-35/S Appeal dismissed.