2017 PLP 5 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this single judgment we intend to decide the above captioned RFA as well as R.F.A. No.569 of 2009 titled "Muhammad Ashiq v. Saghir Ahmad etc.", as both the appeals are against the same judgment and decree.

2. This appeal has been filed against the judgment and decree dated 12.11.2009 passed by the learned Civil Judge 1st Class, Lahore, whereby the suit for specific performance filed by the appellant-plaintiff was dismissed. The other R.F.A. No.569 of 2009 has been filed by defendant No.1, the original owner of suit plot with the prayer that the judgment and decree dated 12.11.2009 may kindly be set aside in the interest of justice.

3. The brief facts of case are that the appellant/plaintiff (Aijaz Ahmad) on 30.05.2005 filed a suit for specific performance on the basis of an agreement to sell dated 18.10.2004 against three defendants. Subsequently defendant No.4 was added through the amended plaint filed on 25.06.2009. The defendant No.1 filed conceding written statement and pleaded that after the agreement, he was summoned by NAB authorities for some inquiry, therefore, in order to save the right of plaintiff he transferred the suit plot in favour of defendant No.2 (Saghir Ahmad) who is his business partner and instructed him to transfer the plot in favour of plaintiff but he dishonestly transferred the same in favour of his son -in-law. The defendants Nos.2 and 4 filed their joint written statement on 24.04.2007 and pleaded that the suit plot was transferred in favour of defendant No.2 and then in favour of defendant No.4 prior to 18.10.2004, therefore, suit is incompetent, result of fraud and mala fide on the part of plaintiff and defendant No.1. Learned trial court on 14.02.2008 framed the issues and parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence. Learned trial court has noted the same in detail in its judgment which is impugned in this appeal, therefore, need not be re-noted herein. After the closing of trial vide judgment and decree dated 12.11.2009 learned trial court dismissed the suit filed by the plaintiff-appellant with special cost of Rs.20,000/-. Hence, this appeal by the plaintiff and the connected appeal by defendant No.1, the original owner.

4. Learned counsel for the appellant-plaintiff argues that whole of the consideration amount i.e. Rs.3.5 million was paid and the agreement was written between the parties; that the plaintiff has fully proved the agreement to sell and defendant No.1 the original owner has even admitted the agreement as well as receipt of consideration amount, therefore, learned trial court was bound to decree the suit and fell in error while dismissing the same; that the plaintiff has produced two witnesses to prove the agreement. Argues that defendant No.2 Saghir Ahmad, who claims transfer of suit plot, was bound to prove his agreement and then he can take benefit of transfer of suit plot in his favour, as the agreement in favour of the plaintiff is prior in time than the actual transfer in favour of defendant No.2; that defendant No.2 failed to prove his agreement to sell in accordance with Articles 17 and 79 of Qanun-e-Shahadat Order, 1984; that in the agreement (Ex.D-1) there is no mention of payment of consideration amount; that the oral evidence cannot exclude the documentary evidence; that statements of all the witnesses of defendants are contradictory one; that the learned trial court has ignored the important document i.e. Ex.P-26. Prays for setting aside the impugned judgment and decree and also prays for decree of the suit.

5. Learned counsel representing respondent No.1/appellant in R.F.A. No.569 of 2009 when confronted that what was the purpose for filing appeal by defendant No.1 and how the appeal is competent when he was defendant in the suit, which has been dismissed and even the learned trial court has not ordered for return of money which he admits to have been received as consideration amount for transfer of suit plot, learned counsel states that his case is that he agreed to sell the suit plot in favour of Aijaz Ahmad/appellant of R.F.A. No.563 of 2009 and as such he has filed this appeal. We are unable to understand that how his appeal is competent when the plaintiff, whose suit has been dismissed, has filed the appeal before this court.

6. Learned counsel representing respondent No.4 has argued the matter at length, whereas learned counsel representing respondents Nos.2 and 3 have adopted the arguments advanced by learned counsel for respondent No.4. Learned counsel for respondent No.4 argues that filing of second appeal by defendant No.1 i.e. R.F.A. No.569 of 2009 is sufficient to prove that there is collusion between the plaintiff and defendant No.1, both the appellants. Learned counsel states that the suit has been filed with the connivance of defendant No.1 and further that the pleadings and evidence of plaintiff-appellant are contradictory one; that the plaintiff has not proved his agreement to sell in accordance with law. Relies upon "PLD 2006 Lahore 571 (Muhammad Ramzan v. Saif Nadeem Electro (Pvt.) Ltd.)" to argue that in accordance with the criteria given by the learned Division Bench of this court for proving an agreement to sell when it is denied between the parties, the plaintiff-appellant failed to prove his agreement when he has withheld the best evidence available with him and as such presumption will be against him. Learned counsel has referred various portions of statements of witnesses as well as the pleadings of plaintiff to show contradictions. Lastly argued that the photocopies of cheques have been produced as Ex.P-2 to Ex.P-26, which were exhibited under objection and the same cannot be taken into evidence and cannot be exhibited being photocopies of the documents. Prays for dismissal of the appeal.

7. We have heard the learned counsel for the parties at full length, gone through the record as well as the findings recorded by the learned trial court and the evidence available on the file.

8. As the suit for specific performance has been filed on 30.05.2005 on the basis of alleged agreement to sell dated 18.10.2004 and the suit property was admittedly transferred in favour of defendant No.2 prior to the filing of suit and then through Ex.D-6 in favour of defendant No.4 on 28.05.2005. When prior to the filing of suit the suit property was transferred in favour of defendant No.2 and then in favour of defendant No.4 in the record of DHA/defendant No.3, therefore, the plaintiff was required to prove the genuineness of his agreement to sell dated 18.10.2004 and to show that this agreement was in the knowledge of all the defendants as has been argued before us as well as while deciding issue No.5 learned trial court has taken into consideration whole of the evidence in detail, which need not be re-discussed herein. Suffice to observe that in the light of judgment "PLD 2006 Lahore 571" when an agreement to sell is denied or questioned by the other side whose interest is involved in the property, the person who comes to the court for grant of a decree for specific performance of agreement to sell, is bound under the law to prove the agreement to sell with regard to specific date of agreement, as date of agreement is a material feature in a suit where an agreement is denied or if agreement is admitted by the original owner and the suit property is transferred after the alleged date of agreement to sell in favour of any other person, in that eventuality as is available in this case the alleged agreement to sell (Ex.P-1) is dated 18.10.2004, whereas the suit has been filed on 30.05.2005 and before filing of the suit admittedly suit property was transferred in favour of defendant No.2 and then defendant No.2 transferred it in favour of defendant No.4 on 28.05.2005 which is evident from Ex.D-6. No doubt, the plaintiff himself appeared as PW-1 and produced Basharat Nasir Bajwa as PW-2 the marginal witness of agreement to sell and Syed Sohail as PW-3 the other marginal witness. The confidence inspiring evidence for proving a document on specific date was the Stamp Vendor along with his Register with endorsement of sale of stamp, the person who purchased the stamp paper on specific date, the scribe of agreement with his Register to show the endorsement of writing of agreement on specific date. The above mentioned evidence is important and necessary to prove the execution of a document on specific date when it is denied by the other side. In case in hand when defendants Nos.2 and 4 have denied the execution and existence of agreement (Ex.P-1) on the specific date, therefore, the plaintiff was bound to prove the execution of Ex.P-1 on 18.10.2004 by producing the above said evidence, as endorsement in the Register of Stamp Vendor is in chronological order and is mentioned with date and when the Stamp Vendor comes to the court as a witness along with his Register of sale of stamps and proves that on specific date the stamp upon which the instrument has been written was sold to a specific person with the endorsement that for which purpose the stamp was sold. The evidence helps the court to find that on specific date a stamp was sold and was purchased by a specific person for writing a specific document. Same is the position of Petition Writer who comes along with his record to show that he has written the said document on specific date. In this case none of above referred evidence has been produced, in the light of Article 129, illustration (g) of Qanun-e-Shahadat Order, 1984. The best evidence when withheld by a person is presumed to be against him. The evidence produced by the plaintiff was not sufficient to prove that agreement to sell (Ex.P-1) was actually written and executed on the date which has been claimed by the plaintiff when he has opted not to produce the above referred evidence which is essential to prove the creation of a document on a specific date. The evidence as well as pleadings are contradictory one. In the agreement it is written that defendant No.1 acknowledged the receipt of whole consideration i.e. Rs.3.5 million. In Para 7 of the plaint it is stated that the total consideration was paid in lump sum, whereas while appearing as PW-1 the plaintiff has stated that through various cheques and drafts which have been produced as Ex.P-2 to Ex.P-26 the payment was made. It is a material contradiction between the pleadings and evidence of plaintiff-appellant. Even otherwise through the photocopies of cheques and demand drafts it cannot be presumed that any payment was made through the alleged cheques when Photostat copies have been produced which has no evidentiary value in the eye of law. Further that all the cheques are not by the appellant-plaintiff in favour of defendant No.1. Some of the cheques are by other persons without any endorsement on behalf of the plaintiff in favour of defendant No.1 and various cheques are for cash, meaning thereby these are not in the name of defendant No.1. Learned trial court has wrongly exhibited these documents. Even no application for permission to produce the secondary evidence was moved. Learned counsel for respondents has shown the interest of witnesses produced by the plaintiff while referring Ex.P-6, Ex.P-7, Ex.P-10 and Ex.P-13, which clearly show the interest of these witnesses with the plaintiff. Further story by the plaintiff narrated when appeared as PW-1 that he went along with defendant No.1 in the office of DHA where defendant No.1 informed that he could not bring the transfer letter and he went back to bring the same. Same is the position of his witness but in Para 3 of the plaint the plaintiff pleaded that transfer letter had been misplaced. It is also pleaded that in the office of defendant No.3, defendant No.1 himself informed that the original letter had been misplaced. This is also a material contradiction when the factual story was to be proved without any shadow of doubt. We agree with the findings recorded by the learned trial court that the plaintiff failed to prove the execution of agreement to sell on specific date.

9. The other aspect of the case is that when full consideration amount was paid as claimed by the plaintiff and defendant No.1, why the suit property was not got transferred in the name of plaintiff and what was the reason that suit has been filed after the suit property was transferred in favour of defendant No.2 and then in favour of defendant No.4 and further that the story narrated by defendant No.1 that he has himself transferred the suit property in favour of defendant No.2 with the direction to transfer the same in favour of plaintiff, we are unable to understand that why this practice was adopted when according to defendant No.1 he has received full consideration amount and nothing was to be received from the plaintiff and what was the necessity to transfer the property in favour of defendant No.2 instead of plaintiff. The story that some inquiry was being initiated against him by NAB authorities is misconceived and when some inquiry was being initiated against defendant No.1 by NAB authorities, we are unable to disagree with the findings recorded by the learned trial court. The argument of learned counsel for respondents Nos.2 and 4 that filing of appeal by defendant No.1 bearing R.F.A. No.569 of 2009 strengthens the plea taken by defendants Nos.2 and 4 that suit is result of connivance between the plaintiff and defendant No.1. We agree with the contention raised by learned counsel for respondents Nos.2 and 4.

10. In the light of what has been discussed above, the instant appeal as well as R.F.A. No.569 of 2009 having no substance stand dismissed with costs throughout. ZC/A-3/L Appeal dismissed.