2016 PLP 1 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By filing the instant Regular Second Appeal the appellant (hereinafter to be referred as defendant No.1) has challenged the judgment and decree dated 12.4.2001 passed by the learned trial court, whereby, suit for specific performance of agreement to sell dated 28.11.1995 (Ex.P-1) filed by respondents Nos.1 to 3 (hereinafter to be referred as plaintiffs) was partially decreed whereas the suit filed by defendant No.1 for perpetual injunction was dismissed as well as judgment and decree dated 10.4.2003 delivered by the learned lower appellate court, by virtue of which, appeal filed by defendant No.1 was dismissed and appeal filed by the plaintiffs was accepted and their above referred suit was decreed in toto.

2. Briefly the facts are that the plaintiffs instituted a suit for specific pet formance of an agreement to sell against Murid Hussain defendant No. 1 with the assertion that the suit property measuring 72 kanals fully mentioned in the caption of the plaint was owned by defendant No.1, who had agreed to sell the same to the plaintiffs against a consideration of Rs.7,20,000/- and a token amount of Rs.6,70,000/- was paid to him before the witnesses on 28.11.1995. Then on the same day, agreement (Ex:P1) was duly executed by defendant No.1 in favour of the plaintiffs and thereafter same was duly got attested/registered from the Sub-Registrar on 15.1.1996, but the same could not be enforced as the revenue estate was under consolidation and the parties by mutual consent extended its target date by means of written deed dated 23.10.1996 (Ex.P2). However, when defendant No.1 refused to honour the agreement (Ex:P1), the above referred suit for specific performance of agreement to sell was filed. During the pendency of suit, the disputed property measuring 48 kanals was alienated through tamleeq by defendant No.1 in favour of his sons namely, Habib Ullah and Naeem Ullah, defendants Nos.4 and 5 (hereinafter to be referred as defendants Nos.2 and 3), whereas, rest of the property was also transferred by defendant No.1 in favour of respondents Nos.6 to 9 (hereinafter to be referred as defendants Nos.4 to 7) vide sale mutation No.8 dated 27.2.1999. The plaintiffs in the suit prayed for specific performance of agreement to sell (Ex:P1) and cancellation of mutation attested during the pendency of suit in favour of defendants Nos.2 to

7. Defendant No.1 resisted the suit filed by the plaintiffs while denying the execution as well as attestation/registration of agreement (Ex:P1) besides the execution of other agreement dated 23.10.1996 (Ex:P2) for extension of time being forged, fictitious and without consideration and that the plaintiffs are step brothers of defendant No.1, who had maneuvered these documents. It is further averred in the written statement that the plaintiffs in the life time of father of the parties also filed suit of similar nature to usurp the property and when it came into the knowledge of the defendant the same was withdrawn by the plaintiffs.

3. Defendant No.1 also filed an independent suit for perpetual injunction against the plaintiffs and other defendants with the prayer that a decree for permanent injunction be issued in his favour restraining the plaintiffs and other defendants from interfering into his possession. The suit of defendant No.1 was also resisted by the plaintiffs by filing their independent written statement. The learned trial court after full-fledged trial decreed the suit filed by the plaintiffs only to the extent of 44 kanals out of 72 kanals, whereas, the suit filed by defendant No.1 was disposed of vide impugned judgment and decree dated 12.4.2001.

4. Feeling dissatisfied, the plaintiffs as well as defendant No.1 filed two separate appeals bearing No.98/13/2002 and 99/13/2002 before the learned lower appellate court, who vide impugned judgment and decree dated 10.4.2003 accepted the appeal filed by the plaintiffs, whereas, the appeal filed by defendant No.1 was dismissed and the suit for specific performance of agreement to sell filed by plaintiffs to the extent of 72 kanals was decreed, hence this appeal.

5. It is argued by the learned counsel for defendant No.1 that both the learned courts below failed to consider that the disputed agreements were specifically claimed to be forged and fictitious by defendant No.1 and the plaintiffs remained un-successful to prove its execution, but the learned courts below while misinterpreting material available on file passed the impugned judgments and decrees on illegal premises of law; that the disputed agreement (Ex:P1) was unilateral being not signed by the vendees, which is not enforceable as per law, but both the learned courts below without taking into consideration the said aspect of the case passed the impugned judgments and decrees in complete derogation of law. He has lastly prayed for the acceptance of the instant appeal, setting aside of the impugned judgments and decrees passed by both the learned courts below and also that suit for specific performance of agreement to sell filed by the plaintiffs may be dismissed, whereas, the suit filed by defendant No.1 be decreed.

6. Conversely, the learned counsel for the plaintiffs has vehemently opposed the arguments advanced by the learned counsel for defendant No.1 while submitting that the plaintiffs fully proved the valid execution of agreement (Ex:P1) as well as its attestation by the Sub-Registrar besides the second agreement (Ex:P2) for extension of time and both the learned courts below after taking into consideration the convincing and strong evidence adduced by the plaintiffs eminently passed the impugned judgments and decrees. He has lastly prayed for the dismissal of the instant appeal.

7. Arguments heard. Record perused.

8. It is significant to note that atong with the appeal, defendant No.1 also filed C.M. No.3-C/2005 for comparison of his signatures over the agreements from the Expert. At the very outset, learned counsel for defendant No.1 has opted not to press the instant C.M. on merits if this court itself makes a comparison thereof under the law. Consequently, C.M. No.3-C/2005 is disposed of accordingly.

9. From the perusal of written statement filed by defendant No.1 it is straightaway noticed that the execution of agreement dated 28.11.1995 (Ex:P1) was specifically denied by defendant No.1, who also denied the execution of agreement dated 23.10.1996 (Ex:P2) by means of which the target date for performance of Ex:P1 was extended. The perusal of basic agreement (Ex:P1) reveals that at the time of alleged execution, it was not signed by the vendees/plaintiffs, but the same was attested by Mushtaq Ahmad son of Qadir Bakhsh (PW4) as well as Mohammad Arif son of Ghulam Qadir (PW5) as marginal witnesses and it was scribed by Hafiz Wahid Bakhsh, Deed Writer. It is borne out from the file that Hafiz Wahid Bakhsh deed writer was not produced as witness by the plaintiffs, rather his son Tariq Shahzad was produced as PW

2. No doubt he identified the writing of his deceased father over the agreement (Ex:P1), but it is strange to note that he categorically denied to have recognized the signature of his father over Ex:P

1. So the statement of PW2 to this extent was of no help to the plaintiffs when he categorically explained during the cross-examination that neither Ex:P1 was scribed before him nor deed writing register was signed in his presence.

10. The attesting witness Mushtaq Ahmad (PW4) without giving exact date, month and year of the execution of Ex:P1 stated in his examination-in-chief that about 4-1/2/4-3/4 years ago bargain of sale was settled by Murid Hussain/defendant No.I with his brother Ashiq Hussain, plaintiff No.1 regarding the property measuring 9 acre against a consideration of Rs.7,20,000/- and at the time of bargain he himself along with attesting witness Mohammad Arif besides one or two un-known persons was present. PW4 further stated that after 3/4 days, he, Mohammad Arif and the parties of the agreement came to Tehsil Lodhran where stamp paper of Ex:P1 was purchased by defendant No.1, but when Ashiq Hussain/plaintiff No.1 exclaimed that some amount was deficit, Murid Hussain/defendant No.1 deposed that only after receiving sale consideration he would execute the agreement. According to PW4, after 3 or 4 days part payment of Rs.6,70,000/- was received by defendant No.1 at his house from plaintiff No.1 in his presence and then they came to Tehsil Lodhran where agreement (Ex:P1) was scribed by Hafiz Wahid Bakhsh, deed writer, which was signed by defendant No.1, Ashiq plaintiff No.1 and the marginal witnesses. In cross-examination PW4 deposed that the bargain was settled at 10/11.00 a.m. in the winter season of December or January. He further deposed that amount of Rs.6,70,000/- was paid by the plaintiffs to defendant No.1 in presence of Mohammad Arif and 2/3 other persons. PW4 also deposed that Ashiq Hussain/plaintiff No.1 handed over the amount to him and he after counting the same paid it to defendant No.1. He further stated that six packets of currency notes containing Rs.1000/- and 70 loose notes of the same value were paid to defendant No.1. PW.4 deposed during the cross-examination that he and Muhammad Arif, the other attesting witness were residing at a distance of 35/40 kilometers from the residence of the parties.

11. The other attesting witness Mohammad Arif appeared as PW5 and got recorded his statement on the same day when the statement of PW4 was recorded. He stated in his examination-in-chief that about 5 years ago the bargain of sale of property measuring 9 acre was settled between the parties against a consideration of Rs.7,20,000/- in his presence and at that time Mushtaq Ahmad (PW4) and other witnesses were also present when stamp paper for execution of agreement was also purchased by defendant No.1, but as the total amount was not available with the plaintiffs, defendant No.1 refused to execute the agreement. PW5 further stated that the parties and the witnesses after 4/5 days again approached the deed writer and the agreement (Ex:P1) was got executed, whereas, the amount was already paid to defendant No.1 through Mushtaq Ahmad (PW4). However, PW5 failed to recall his memory whether he put his signature over the agreement (Ex:P1) or thumb marked the same. He further deposed that agreement Ex:P1 was also signed by Murid Hussain and the deed writer. He conceded in his cross-examination that plaintiff No.I and defendant No.1 were step brothers, but he showed his ignorance if plaintiffs were disinherited by their father due to their disobedience. He further admitted that no receipt was executed when the token sale consideration was paid by the plaintiff's to defendant No.1. Mohammad Arif (PW5) in his cross-examination candidly conceded that he remained involved in 2/3 criminal cases of theft, but the same were got registered on account of rivalry and he showed his ignorance if Mushtaq Ahmad (PW4) was also involved in those cases, however, he also conceded that Mushtaq Ahmad was related to him. PW5 further admitted that father of the parties had two wives and plaintiff No.1 and defendant No.1 were step-brothers. He also showed his ignorance that whether father of plaintiffs had disinherited the plaintiffs. He further deposed that the bargain of sale was settled between the parties outside their house. However, he deposed in his cross-examination that after 4/5 days of the purchase of stamp paper, the payment was made and agreement (Ex:PI) was executed. The perusal of stamp paper/agreement (Ex:P1) reveals that it was allegedly purchased on 23.11.1995 and the name of plaintiffs Nos.2 and 3 were entered over its endorsement without affixing any initial by the stamp vendor and the stamp vendor or his register was not produced by the plaintiffs despite his availability without any justification.

12. Mohammad Ashiq one of the plaintiffs appeared as PW7, who deposed that 4-1/2 /4 3/4 years ago on 22nd/23rd day of November, the bargain of sale was settled between the parties in presence of Mushtaq Ahmad and Mohammad Arif PWs besides 2/4 other persons of the Biradri', but the agreement could not be executed as entire sale consideration was not available and when Rs.6,70,000/- were paid to defendant No.1, then the agreement was got executed. He further deposed that amongst others he also signed the stamp paper/agreement (Ex:P1) and the consideration was also paid in presence of Mohammad Arif and Mushtaq Ahmad besides one/two other persons. The plaintiff No.1 (PW7) deposed in his cross-examination that Mohammad Arif (PW5) was his tenant and Mushtaq Ahmad was his friend. He further stated that no one signed the agreement as marginal witness on behalf of vendor and also deposed in his cross-examination that some of the amount was available with him and the remaining amount was arranged by selling 2/3 buffaloes, one/two cows and bulls and some goats, whose number was not remembered to him, which were sold to a friend, who was dealing in the business of sale purchase of animals and was also alive. He further deposed that bargain was settled in the courtyard of the house of the parties and the amount was paid at a well at about 9/10.00 a.m. in presence of Mushtaq Ahmad, Mohammad Arif and one or two other friends one of whom was Abdul Majeed while other's name was not known to him. He also stated that on the day of execution of agreement (Ex:P1) the consideration was not paid. He also admitted that defendant No.1 was the stepbrother of the plaintiffs and their father was annoyed with the plaintiffs and also disinherited them. He further conceded that mother of defendant No.1 got lodged an FIR against him (PW7).

13. The above referred evidence produced by the plaintiffs to prove the execution of agreement (Ex:P1) was insufficient on the grounds:-- (i) That the original deed writer could not be produced due to his death, whereas, his son Tariq Shahzad (PW2) exclaimed in his statement-in-chief that he did not recognize the signature of his father over Ex:P l; (ii) That the non-production of stamp vendor has also made a dent in the case of the plaintiffs. The said lapses are sufficient to hold that the plaintiffs failed to prove the settlement of bargain of disputed property, purchase of stamp paper and execution of the agreement (Ex:P1). (iii) That agreement (Ex.P1 and P2) were attested by the persons who were residing at a distance of 35/40 kilometers away from the residence of the parties and no person from the locality or any of their relatives attested the said agreement being its marginal witnesses. (iv) That Mushtaq Ahmad (PW4), Mohammad Arif (PW5) and even plaintiff No.1 as PW7 admitted that defendant No.1 was step-brother of the plaintiffs and father of the parties remained annoyed with the plaintiffs due to their disobedience. It is also admitted by plaintiff in his cross-examination that an FIR was lodged against him by the mother of the defendant with the allegation that she was beaten by him. In such strained situation, it could not be presumed that agreement (Ex:P1) had been voluntarily executed between the parties; (v) That none of the witnesses including plaintiff No.1 deposed the exact date of settlement of bargain, purchase of stamp paper, execution of agreement (Ex:P1) and even the payment of consideration. Even none of the attesting witnesses deposed that the agreement (Ex:P1) after its execution was read over to witnesses or vendor, who after understanding the contents thereof signed the same; (vi) That Mushtaq Ahmad (PW4) deposed that at 10/11.00 a.m. in December or January the settlement of bargain was settled, whereas, perusal of Ex:P1 reveals that stamp paper was purchased on 23.11.1995 and same was scribed on 28.11.1995; (vii) That Mohammad Arif (PW5) deposed that bargain was settled in the house of the parties whereas PW.4 stated that it was arrived at between the parties outside their house; (viii) That both the attesting witnesses deposed that at first point of time the bargain was settled and stamp paper was purchased, but the agreement could not be scribed as the consideration was not available with the plaintiffs which was scribed 3/4 days thereafter and the amount was paid by the plaintiffs at his residence on the same day, whereas, Mohammad Ashiq plaintiff No.1 (PW-7) deposed as under:- The said narration of PW7 has fully negated the stance of the plaintiffs regarding the payment of sale consideration made to defendant No.1; (ix) That PW4 and PW5 deposed that amount was paid to defendant No.1 at his residence, whereas, PW7 deposed that the same was paid at the well where the bargain was struck at about 9/10.00 am; (x) That the perusal of plaint does not reveal that Ex.PI was completed with three intervals, thus the testimony of PW.4, 5 and 7 that bargain was settled at first point of time when stamp paper was also purchased, whereas, the agreement (Ex:P1) was executed on 2nd point of time and the same was got registered on 3rd point of time is altogether a departure from the pleadings in the plaint.

14. The contention of learned counsel for the plaintiffs that the agreement (Ex:P1) was duly attested/registered by the Sub-Registrar and at that time one of the vendees Mohammad Ashiq also signed the same is of no value. The signatures of Mohammad Ashiq or other plaintiffs at the time of its execution are admittedly not available on Ex:P1 and it is settled principle of law that if a document was registered on the date subsequent to the date of its execution would operate from the date of its execution only and not from the date of its registration. Ex:P1 was allegedly executed on 28.11.1995, whereas, the same was got registered from the Sub-Registrar on 15.1.1996 after a lapse of almost one month and seventeen days. The subsequent improvement i.e. signature of one of the vendees out of three over it on the day of its registration cannot take effect from the day of its execution. Any improvement or signatures subsequently made by one of the vendees cannot take away the agreement from the definition of unilateral document. No doubt, the plaintiffs also produced witnesses to move its registration, but once it has been concluded that plaintiffs failed to prove the execution of agreement, then mere its registration or any other evidence to prove the attestation of the same cannot make the agreement as a proved document. Both the attesting witnesses are of not trustworthy witnesses. One of them remained involved in criminal cases and when plaintiff No.1 as PW7 himself admitted that one of them was his tenant and other was his friend, hence, they cannot be termed as independent witnesses. In this view of the matter, there is left no occasion to believe that agreement (Ex:P1) was duly executed between the parties, rather the same was maneuvered by the plaintiffs by making its attestation through his close fellows.

15. It is also significant to note as observed supra that the stamp paper had been purchased on 23.11.1995, which was scribed on 28.11.1995 and registered on 15.1.1996. The preparation of agreement (Ex:P1) with three intervals has also made it highly doubtful. When the basic agreement (Ex:P1) could not be proved by the plaintiffs as a valid document, then the argument of learned counsel for the plaintiffs that the other agreement dated 23.10.1996 (Ex:P2) had also been executed between the parties is without any force. I have minutely perused Ex:P1 and Ex:P2 and even while making glance through naked eyes it is vivid that the alleged signatures of Murid Hussain/defendant No.1 available on Ex:P1 and Ex:P2 are not identical to each other, rather there is huge difference in the characteristics thereof. The said document was also attested by the same witnesses and the perusal of the alleged signature of Mushtaq Ahmad being attesting witness on both the documents further reveals that there is again much difference in its characteristics, which is also another factor to believe that the plaintiffs maneuvered forged documents to deprive their stepbrother of his property, who had no cordial relations with the plaintiffs and there was no occasion for settlement of the sale transaction between the parties in the normal routine as claimed by the plaintiffs.

16. Apart from the above, there is much force in the argument of the learned counsel for defendant No.1 that agreement to sell (Ex:P1) being unilateral in nature having not been signed by the vendees is not enforceable as per law. The said contention finds support from the judgments reported as "Mst. Barkat Bibi and others v. Muhammad Rafique and others" (1990 SCMR 28), "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" (2011 SCMR 334) wherein it has been held that an agreement is required to be signed by both the parties and if the same was not signed by any of the parties then the same cannot be enforced as per law. His lordship Mian Saqib Nisar, J in the recent judgment reported as "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187) has authoritatively held as under:-- It is an undisputed fact that appellants agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agents execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract. But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants, therefore in law and fact it is no contract (agreement).

17. The question of enforceability of a unilateral agreement has earlier been dealt with by me vide judgment dated 9.9.2014 passed in C.R.No.304 of 1999 whereby the concurrent findings arrived at by the two courts below in decreeing the suit for specific performance of a unilateral agreement were reversed while holding that such an agreement was not enforceable under the law. My said verdict also prevailed when the apex Court once again vide judgment dated 13.2.2015 passed in Civil Appeal No.347-L of 2015 dismissed the appeal. So there is left no room for this Court to form a different opinion except that a unilateral agreement cannot be enforced as per law.

18. As per law a judgment must speak clearly and it should be well written and containing what the case was, what the disputed issues were, what decision the court/judge reached and why that conclusion was drawn. The legislature has casted a vital responsibility on the courts because it is the court, which has to decide all the questions of facts on which the disposal of the suit might depend. If the learned courts below do not examine the facts and the evidence available on the record and fail to mention the points on which the case hinges, it will be certainly their failure in the performance of their duties. The learned lower appellate court also failed to scan, analyze, evaluate and record in its judgments and decrees the evidence adduced by the parties, which is violation of the mandatory provisions of law i.e. Order XLI Rule 31 of the Civil Procedure Code, 1908. Both the learned courts below without considering the evidence available on file and while comparatively scanning Ex:P1 and Ex:P2 rendered their findings without application of judicial mind which is result of misreading and non-reading of evidence on the record as well as its misinterpretation, which have rendered the impugned judgments and decrees illegal, unlawful and without jurisdiction and the same are liable to be set aside.

19. At the fag end of his arguments learned counsel for the plaintiffs contended that while exercising powers under section 100, C.P.C. the concurrent findings arrived at by the courts below cannot be disturbed by this Court. No doubt in second appeal ordinarily this Court is reluctant to interfere in concurrent findings of facts arrived at by the courts below. However, this is not a rule of thumb as this Court cannot shut its eyes when there is found to be an apparent misreading of evidence and manifestly illegal conclusions are found to have been drawn by Courts below. The manifest injustice could not be permitted to be perpetrated simply for the reason that in second appeal High Court should not have looked at the evidence, which formed the basis for the findings recorded by the Courts below. The apex Court in a series of cases has observed that if findings of facts arrived at by Courts below are found to be based on misreading or misinterpretation of evidence on record, the Court of second appeal is entitled to review evidence and these findings can always be disturbed and reversed on the ground that the decision was based on misreading of evidence or that it was a result of perverse application of evidence or that the conclusions was drawn after ignoring vital piece of evidence on record. In the present case issue of fact has not been properly determined by the courts below by reason of any substantial error or defect of drawing a wrong inference about the correct legal position, which materially affected the decision on merits and this Court while dealing with second appeal can correct such error in the interest of substantial justice.

20. On the touchstone of the above discussion, the instant Regular Second Appeal is accepted, impugned judgments and decrees passed by both the learned courts below are hereby set aside and the suit for specific performance of agreement filed by the plaintiffs is hereby dismissed and suit for permanent injunction filed by defendant No.1 is hereby decreed with cost throughout. ZC/M-338/L Second appeal allowed.