1990 PLP 894 (CLC)

Regular Second Appeal No.7 of 1988, decided on 3rd July; 1989. Specific Relief Act (1 of 1877)‑‑‑ ‑‑‑Ss.12 & 28‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Suit for specific performance of agreement to sell‑‑‑Execution of agreement to sell, on basis of which suit was fled by plaintiff, was totally denied by defendant who was a villager, illiterate old lady‑‑‑Judgment and decree passed by Trial Court in favour of plaintiff, was set aside by Appellate Court below observing that apart from other discrepancies apparent on face of alleged agreement, plaintiff who was heavily burdened with the onus to prove not only execution of agreement in his favour, but also to prove that execution thereof by vi]lager illiterate old lady had taken place in his favour with free consent of old lady, had failed to discharge; that burden‑‑‑Reason given by Appellate Court below for setting aside findings of Trial Court, being well based on record, no case, held, had been made out for interference in second appeal. Allah Wassaya Malik for Appellant. Record perused. Learned counsel has been heard. The judgment and decree dated 10‑9‑1985 of the learned Civil Judge decreeing the suit for specific performance of contract were set aside by the learned Additional District Judge, Bhakkar by gibing detailed reasons. Record was called for in order to verify whether the criticism with respect to agreement Exh.P1 made by the learned first appellate Court is factual and correct. The examination of agreement to sell EX.Pl fully supports the criticism of the learned Additional District Judge. The Khasra numbers apparently have been inserted after completing the writing of the agreement as some of the Khasra numbers have been written in the margin extending over the remaining writing. The thumb impressions of the attesting witnesses were obtained and their names were written in the ink different from the one with which the rest of the document was written. The other discrepancies noted by the learned first appellate Court are also well based and I fully agree with the said criticism and the observations made.

2. Learned first appellate Court is also right in observing that whenever a villager, illiterate and old woman is stated to have executed any document and the A execution of the same is denied by such lady then heavy burden lies on the person in whose favour such document purports to have been executed to not only prove the execution of the document but also to prove that such execution took place with fee consent and under independent advice. The plea that Muhammad Hayat (a nephew) having attested the document as an attesting witness, independent evidence was available to the lady, is without substance as Muhammad Hayat PW.3 is admittedly son‑in‑law of the plaintiff/petitioner. The brothers of the lady were admittedly available but none was joined in when the alleged bargain was, finalized or the document was allegedly executed by the lady. No receipt was also obtained while paying the consideration. It is also important to note that the second attesting witness of the document namely Malik Jhanda does not belong to the village to which the lady belongs. He in his deposition stated that his village is situated at a distance of 3/4 miles from the house of the lady. The land in dispute was received by the lady on the death of her husband. This was a share in the joint Khata and admittedly was already in possession of the joint owners including the petitioner/plaintiff. As such the only circumstance put up to support the genuineness of the transaction i.e. the change of the possession on account of alleged agreement of sale and alleged payment of sale consideration stood refuted. Learned counsel faced with this situation referred to the answers given by witnesses of defendant/respondent and contended that the execution of agreement by the respondent can be inferred. Firstly, no such inference can be drawn. Secondly, by merely proving execution of the document, the petitioner cannot succeed as he has further to show that the executant being an old, rustic and illiterate lady, executed the document with free consent under independent ad‑vice and after fully understanding the nature and the effect of the document which she was made to thumb mark. It is also to be noted that the respondent/lady was not even suggested that the thumb impression appearing on the agreement EX.P1 was hers and she had affixed the same after attaining knowledge of the contents of the document. 1, therefore, fully agree with the reasons given by the learned Additional District Judge for setting aside the B finding of the learned trial Court. These reasons are well based on record and as such no case is made out for interference in second appeal. The appeal, therefore, fails and is dismissed in limine. H.B.T./M‑1854/L Appeal dismissed.