2003 PLP 246 (MLD)

Muhammad Yaqoob Sindhu for Respondents. Date of hearing: 12th April, 2002. On the basis of an agreement to sell dated 30‑3‑1991 whereby Ibrahim, the predecessor‑in‑interest of the appellants, had agreed to sell the suit land measuring 9 Kanals, 13 Marlas (the description of which is found in the plaint) for a consideration of Rs.60,000 a suit for specific performance was brought by Fateh Muhammad, now succeeded by his legal representatives. The suit was contested inter alia on the plea that the agreement was result of undue influence, coercion and was not with free consent of Ibrahim. Number of issues were framed by the trial Court. The parties produced evidence in support of their respective pleas. On consideration of the evidence the learned trial Judge vide. His judgment dated 30‑5‑1994 decreed the suit subject to payment of Rs.30,000, the balance consideration. Appeal filed by the appellants there against was dismissed by the learned District Judge, Sialkot on 7‑6‑1995. This is their second appeal before this Court.

2. The learned counsel for the appellants disputes the correctness of the findings recorded by the Courts below about the execution of the agreement to sell and payment of the consideration money. It is contended that Ibrahim was an old man of feeble health, and the agreement was result of undue influence and coercion and no consideration money was paid. Reference to the statement of D.W.1 Syed Ihsan Medhi Jaffari, Tehsildar/Sub‑Registrar is made. It is contended that since all the attesting witnesses of the agreement had not been produced by the respondent/plaintiff, the findings as to the execution of the agreement are illegal. Relies upon Shamsher Ali v. Sardar Khan (1991 CLC Note 133 at page 110).

3. The learned counsel for the plaintiff/respondent supports the concurrent finding of facts recorded by the two Courts below that the same are supported by the evidence on record, and immune from challenge in second appeal. It is contended that in view of the plea and the defence that agreement was result of coercion and undue influence, its execution cannot be denied and that there is no misreading of any material piece of evidence by either of the Courts below.

4. Issues Nos.4 and 5 assumed importance in the context of the controversy between the parties. The plaintiff/respondent produced Allah Rakha, Petition Writer P.W.1, Ilam Din P.W.2, Malik Nazir Ali, Advocate P.W.3, Mehar Din P.W.4, Muhammad Nawaz Salahria, Advocate P.W.5 and Fateh Muhammad himself appeared as P.W.6, in support of his case. On the other hand the defendants/appellants produced Syed Ihsan Mehdi Jaffari, Tehsildar/Sub‑Registrar as D. W .1, Muhammad Tufail D.W.2, Mst. Sharifan Bibi D.W.3, whereas Ibrahim did not enter appearance himself and his wife Mst. Sharifan Bibi appeared as his attorney. In view of the plea and defence of Ibrahim/defendant/appellant the execution of the document could not be denied. It was, however, his case that the same result of undue influence and coercion. The learned trial Judge on perusal of the evidence that had come on the record, came to the free conclusion that "The defendant duly with his free consent and without any coercion executed the agreement to sell". The evidence has been considered over again by the learned District Judge who also reached the conclusion that the agreement was duly executed by Ibrahim for a consideration of Rs.60,000 and thus affirmed the findings recorded by the learned trial Judge. Although appreciation of evidence is not undertaken ordinarily by this Court, yet the evidence has been gone through by me with ‑ the assistance of the learned counsel and find that no illegality has been committed by the Courts below in the matter. The testimony of Syed Ihsan Mehdi Jaffari, Tehsildar/Sub‑Registrar D.W.1 goes to show that the parties were present for the completion of the transaction and Ibrahim was, even accompanied by his wife and daughter. From the perusal of his statement it comes out that there was a dispute regarding the payment of the consideration money which was the cause of altercation between the parties. The execution of the document is thus fully proved. During the course of hearing of the appeal it was stated by the learned counsel for the respondent that although a sum of Rs.30,000 was paid as earnest money and the balance sum of Rs.30,000 was deposited by the order of the Court and invested in Defence Saving Certificates, to which the appellants are entitled, yet in order to end this controversy and litigation the respondent was ready to pay a sum of Rs.30,000 in addition to the amount already deposited under the order of this Court dated 16‑10‑1995. While maintaining the findings as to the execution of the agreement the decree is maintained with the modification that the respondent shall make deposit of a sum of Rs.30,000 within a period of one month from today in addition to already deposited in the Court. The appellants will be entitled to the amount deposited and invested in Defencc Saving Certificates alongwith profit, in view of order dated 16‑10‑1995 and also to a further amount of Rs.30,000 being deposited vide this judgment. The appeal is dismissed with the above modification and observation. No order as to costs. H.B.T./M‑1562/L Appeal dismissed.