1996 PLP 1819 (MLD)

(1) Whether the suit is hit by section 28, clause A, of Specific Relief Act, if so, its effect? OPD (2) Whether the agreement to sell is forged, fraudulent and result of collusion between the plaintiff and defendant No 1? OPD (3) Whether the suit is frivolous, vexatious and as such the defendant is entitled to special costs under section 35‑A of C.P.C.? OPD (4) Whether the defendant executed the agreement-dated 26‑12‑1988 in favour of the plaintiff? OPD (5) If issue No.4 is proved and whether the plaintiff has performed his part of contract? OPP (6) Whether the plaintiff is entitled to a decree prayed for? OPP (7) Relief. On the conclusion of the trial the learned trial Court found all the issues having been proved in favour of the respondent‑plaintiff and as such decreed the suit vide judgment and decree dated 12‑5‑1991. The petitioner‑defendant assailed this judgment and decree in appeal which was heard and decided by a learned Additional District Judge, Rawalpindi but with no success as the same was dismissed vide judgment and decree dated 22‑10‑1991. Hence this revision petition.

4. Through this revision petition indulgence of this Court is sought on two grounds: (i) misreading of the evidence by both the Courts below and (ii) the agreement to sell (Exh.P.l) being forged, fake and collusive as such is not enforceable.

5. As regards the first ground with the assistance of learned counsel appearing for both the parties the evidence has been carefully examined and it is found out that both the Courts have failed to evaluate the evidence with due care and caution what is the minimum requirement of law for the purposes of just adjudication of the matter. Shah Noor Khan respondent/plaintiff in‑his statement part of examination‑in‑chief did not mention anything about execution of the sale agreement nor about mode of payment nor had said a single word about the ownership of the land allegedly sold out to him nor even mentioned the name of any scribe or attesting witness nor referred the attestation made by the Oath Commissioner. In the cross‑examination part of his statement he expressed his ignorance as to the location of the land purchased by him. He stated that the type written agreement was brought by the defendants but stated nothing with regard to event of sale transaction preceding the preparation of the document. Throughout in his statement he nowhere stated that when and at what place the sale agreement was drafted, typed, finalized and attested by the witnesses and the Oath Commissioner.

6. Muhammad Sadiq P.W.2 who attested the document stated in is examination‑in‑chief that the plaintiff agreed to purchase land against sale consideration of Rs.24,000 in his presence in the Kutchery and he became witness. He also stated that Rs.24,000 were paid to Muhammad Jalil respondent No.2. He knew nothing about the finalization of the transaction between the parties nor about the ownership nor the document was shown to him during his statement to verify the document and his signatures thereon. As regards the location and actual price of the land he showed his ignorance altogether.

7. Similarly Rawajan P.W.3 stated that Rs.24,000 were paid to Muhammad Jalil but as to the purposes of payment he showed his ignorance. This witness was also not shown the original document Exh.P‑

1. The document Exh.P‑1 was tendered in evidence counsel for respondent‑plaintiff through this statement recorded by the trial Court on 26‑6‑1990.

8. As against the above evidence of the plaintiff‑respondents, the petitioner‑defendant Muhammad Ashraf appeared as his own witness as D.W.1 and produced one more witness namely Muhammad Bashir as D.W.2 He also produced documents in proof of actual value of the land and as well the ownership. The petitioner‑defendant categorically denied the sale transaction receipt of sale consideration and execution of document Exh.P.l. He further claimed that Muhammad Jalil‑co‑defendant had got nothing to do with the land in question as he was never the owner nor he ever authorised him to enter into sale transaction on his behalf. He asserted that the alleged sale transaction was a cooked up story to deprive him of his property through fraudulent means and the alleged sale agreement was a forged document.

9. In case of denial of execution of a document under Article 117 read' with Article 72 of the Qanun‑e‑Shahadat, 1984, it was incumbent upon the respondent‑plaintiff to prove the execution and contents of the document what he had miserably failed in the present case. This document was not confronted to the petitioner‑defendant in cross‑examination nor he was asked even a single word about his signatures. The author of the document was not produced. There was no evidence as to when and where document was drafted, prepared and finally typed and nor in proof of transaction preceding the execution of document. Even both the attesting witnesses were not shown this document during their statements before the trial Court nor they said anything with regard to its execution. Only one attesting witness Muhammad Sadiq stated that he was made witness but did not mention anything about his signatures on the document or any other factor leading to the execution of document or finalization of the transaction so much so the Oath Commissioner who finally attested the document was not produced nor the respondent‑plaintiff himself and nor both or his P.Ws." said a single word disclosing that the document was after its completion attested by the Oath Commissioner and his endorsement was also obtained that appeared on the document.

10. It is amazing under these circumstances how both the Courts below treated the document Exh.P.I as genuine document and legally proved ignoring 'the requirements of law for the purpose. This document (agreement of sale) Exh. P.1 is neither a copy of judicial record nor a public document it is a private document that should not have been received in evidence without proof of signatures or handwriting of persons alleged to have singed or the author. This document could not be tendered in evidence through bare statement of the counsel for the party and got exhibited albeit there was no objection from the other side. Reliance in this respect is placed on Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, Messrs Agro Marketing Corporation Ltd., Lahore v. Pakistan and 2 others (PLD 1982 Lah. 20); Abdul Rehman and 3 others v. Muhammad Usrrian and 2 others 1982 CLC 1128), Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others (PLD 1990 Lah. 229) and Ghulam Hussain and 7 others v. Mehdi Khan and 6 others (PLD 1993 Lah. 303).

11. Besides this there were certain other material points for the Courts below to consider such as the factum of payment and the ownership of the land being transferred under the sale agreement. None of the witnesses including the respondent‑ plaintiff himself had said that sale consideration of Rs.24,000 was paid to petitioner Muhammad Ashraf. According to them it was paid to Muhammad Jalil. The sale consideration as per contents of Exh. P.1 was shown to have been paid at him by the vendee. As against that according to Muhammad Sadiq and Rawajan the amount was paid in Ihata Kutchery. This glaring contradiction was not taken notice of by both the Courts below. The most important factor was the ownership of land according to document Exh. D.4 copy of Register Haqdaran‑i‑Zamin the petitioner‑defendant Muhammad Ashraf was the owner of the land to the extent of 16/64 share to Khasra No. 83 and Muhammad Jalil figured nowhere. Both the Courts below did not bother to find out from the documentary evidence as to what was the status of Muhammad Jalil viz. ownership of the property and how he was authorised to enter into sale transaction and to receive money. In Exh. D.4 (copy of Register Haqdaran‑i Zamin) the petitioner‑defendant was shown to be owner alongwith his sisters and brothers as sons and daughters of Mansabdar. Had Muhammad Jalil been also son of Mansabdar his name would have also been included in the record of rights along with other co‑owners. This crucial document Exh. D.4 that goes to the root of the matter is not discussed in the judgments of both the Courts below I think both the Courts did not bother to consider the document.

12. It shows that Muhammad Jalil is neither the owner nor son of same Mansabdar who is father of petitioner and nor he is the owner of the land in dispute. As such there appears to be no reason how Muhammad Jalil joins himself with Muhammad Ashraf as one of the owners to enter into sale, transaction for valuable property which in fact belongs to the petitioner defendant alone. Although in the document EXh.P.I Muhammad Jalil is also shown as son of Mansabdar which fact is categorically denied by the petitioner defendant yet no question was asked either from the petitioner‑defendant or from any of the witnesses to prove that Muhammad Jalil is the bother of Muhammad Ashraf and son of same Mansabdar Muhammad Jalil respondent‑defendant though submitted a separate written statement yet showed no courage to appear in the witness‑box nor he was called by the respondents‑plaintiffs to throw light on the attending circumstances and to explain his position with regard to ownership and authority to enter into the sale transaction in question . The learned trial Judge in para. I1 of his judgment dated 12‑5‑1991 has made sweeping remark that there is no rebuttal of the evidence produced by the respondent‑plaintiff little realising firstly, rebuttal is required only in those matters where evidence regarding particular fact in issue if not rebutted shall be presumed to have been proved. In the instant case the respondent‑plaintiff had miserably failed to discharge the onus of proof of execution of agreement and as E such, there arose no question of rebuttal. Secondly, the respondent‑plaintiff was to succeed on the strength of his own evidence and not on the weakness of petitioner‑defendant's case. Moreover, assertion as to execution of a document is a positive assertion and denial of a document is an assertion in negative. Legally. proof is required for a positive assertion and in case some evidence worthy of credence at least prima facie in proof of such assertion has come on the record only then the party asserting in negative is called upon to rebut. I think both the Courts have arrived at the conclusion without adhering to the basic principles of law of evidence. Finally, I take up the point of sanctity of concurrent findings of facts what is raised by the learned counsel of the respondent‑plaintiff. Where is a question of construction of document and its admissibility in accordance with law particularly when its execution and genuineness is denied categorically by C the contesting party, High Court is competent to examine the record and interfere with the findings in aid of justice.

13. In Gulzar Khan v. Mst. Shahzad Bibi and another (PLD 1974 SC 207) it is held. While it is undoubtedly correct that an interference drawn from evidence amounts to a finding of fact yet it is well‑settled that the question of the proper construction of a document is a question of law and not of fact in the present case the question turns solely on the construction of the document by which the transaction was evidenced and therefore the High Court was right in regarding this as a question of law and giving its own interpretation and interpretation with which we agree." Suffice it to say that the conclusions drawn by the Courts below as discussed above are clearly based on misreading and misinterpretation of evidence the oral and as well‑documents. Thus, the impugned judgment and decrees are liable to be set aside for having been passed illegally and with material irregularity. 1, therefore feel no hesitation in setting aside the judgments and decrees dated 12‑5‑1991 and 22‑10‑1991 passed by Civil Judge, Class‑III, Rawalpindi and Additional District Judge, Rawalpindi respectively and dismiss the suit of the respondent‑plaintiff with costs throughout. A.A./M‑75/L Order accordingly.