2006 PLP 1283 (MLD)

JAWWAD S. KHAWAJA, J.

The appellant/plaintiff, namely, Muhammad Arif impugns the appellate judgment and decree dated 17-5-2005, whereby the decree of the learned trial Court dated 16-12-2000 was set aside and a suit filed by the appellant seeking specific performance of agreement to sell (Exh.P.1), dated 18-1-1992 has been dismissed.

2. The case of the appellant is that vide agreement (Exh.P.1) Syed Zulfiqar Ali (respondent No.1) had agreed to sell 6 Kanals of land to the appellant for a total consideration of Rs.600,

000. It is further contended that the agreement itself stipulated that 1 Kanal, 8 Marlas was subject-matter of some dispute. It is for this reason that the appellant had paid a sum of Rs.4,50,000 while the balance was to be paid by 18-4-1992 by which time the dispute was to be resolved by the respondent.

3. The learned trial Court accepted the correctness of the case, set up by the appellant/plaintiff and decreed his suit. However, the learned Appellate Court, as noted above, has reversed this finding. Learned counsel for the appellant has drawn my attention to para.10 of the appellate judgment wherein the learned appellate Court has observed that the respondent No.1 had acknowledged having executed an agreement (Exh.D.1), dated 13-1-1992 in favour of respondents Nos.2 and

3. Learned counsel submits, firstly, that this constitutes a misreading of the record because Exh.D.1 is not in favour of respondents Nos.2 and

3. Secondly, it is pointed out that the agreement (Exh.D.1) was not the basis of the suit filed by the appellant because he had filed suit to enforce the agreement (Exh.P.1), dated 18-1-1992. For these reasons, it is argued that the learned Appellate Court proceeded on extraneous consideration and on the basis of a misreading of the record.

4. The above submission has been controverted on behalf of the respondents/defendants. Learned counsel for the respondents has pointed out that the transaction between the appellant and respondents Nos.2 and 3 can be ascertained from the reading conjointly of both agreements (Exh.D.l), dated 13-1-1992 and (Exh.P.1), dated 18-1-1992.

5. I have gone through both documents with the assistance of learned counsel for the parties. The admitted position is that the land comprised in the two agreements was owned by two brothers, namely, Zulfiqar Ali Shah, respondent No.1, and Sarfraz Ali Shah who had died and had been succeeded by his widow Mst. Nadeem Akhtar and children. There was a dispute between the brothers which is why the agreement (Exh.P.1) made reference to the fact that out of the total area of 6 Kanals, an area measuring 1 Kanal, 8 Marlas did not have clear title. The agreement (Exh.P.1) was executed by the respondent Zulfiqar Ali Shah. The agreement (Exh.D.1) has been executed by the appellant Muhammad Arif Nadeem Chaudhry in favour of respondents Nos.2 and 3 and their third brother Ahmad Saeed. This agreement is in respect of 8 Kanals of land which was agreed to be sold for a total consideration of Rs.11,50,

000. The land in Exh.D.1 belonged to Sarfraz Ali Shah but had passed to his heirs noted above. Although the appellant, Muhammad Arif Nadeem Chaudhry was not legally vested with title,. the agreement (Exh.D.1) recites the fact that the owners of the property had executed an agreement in favour of the appellant on 10-10-1987 and it was on the basis of such agreement that Exh.D-1 was being executed.

6. A sum of Rs.6,00,000 was paid by the respondents Nos.2 and 3 and their brother Ahmad Saeed as earnest money as recorded in Exh.D.l. At the back of this document, vide noting dated 9-3-1992, a further sum of Rs.2,50,000 was received by the appellant but the sale of 4 Kanals out of the total 8 Kanals was excluded from the agreement. A second noting dated 21-9-1992 on the back of Exh.D.1 records that the appellant had procured the registration of a sale-deed in respect of the remaining 4 Kanals of land from the original owners i.e. legal heirs of Sarfraz Ali Shah.

7. From the above narration of facts it is quite clear that the two documents (Exh.P.1) and (Exh.D.l) are composite and have to be read together in order to arrive at the crux of the contention between the parties. The learned Appellate Court has examined both documents together and has rightly concluded that the appellant had no case for specific performance of the agreement (Exh.P.1) because he had c received the total consideration for the disputed land as noted on Exh.D-1 and that the power-of-attorney executed by Zulfiqar Ali Shah, respondent No.l. in favour of Ahmad Saeed, brother of respondents Nos.2 and 3, had been granted on the asking of the appellant. The conveyance of 4 Kanals of land to respondents Nos.2 and 3 vide sale-deed dated 2-5-1992 on the basis of the aforesaid power-of-attorney is consistent with the terms derivable from a composite reading of Exh.P. 1 and Exh.D.1. The appellate decree, therefore, cannot be faulted.

8. When the case was admitted to regular hearing on 4-7-2005 it was argued on behalf of the appellant that even though respondents Nos.2 and 3 had filed a written statement, they had not appeared in the case to give evidence in support of the defence set up by them. This submission was one of the reasons for admitting the petition to regular hearing. I note that in this respect the Court was misled by learned counsel for the appellant. Ahmad Saeed, brother of respondents Nos.2 and 3 who was also a party to the transaction set out in Exh.D.1, appeared as D.W.2 and testified as to the facts of the case. In the circumstances, it is clear that respondents Nos.2 and 3 produced the best witness for proving the transaction in their favour.

9. In the foregoing circumstances, I find no reason for interfering in the impugned decree. This appeal is, therefore, dismissed with costs. H.B.T./M-268/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed,