2008 PLP 252 (MLD)

MUHAMMAD SAIR ALI, J.

Through this second appeal, judgment and decree, dated 13-6-1997 passed by the learned Civil Judge, Sialkot decreeing respondents' suit for specific performance and judgment and decree, dated 12-1-1998 of the learned Additional District Judge, Sialkot dismissing appeal of the appellants thereagainst, have been challenged.

2. In respondents' suit for specific performance to seek enforcement of agreement to sell (Exh.P-1), the appellants submitted their contesting written statements, whereupon the following issues were framed by the learned trial judge: (1) "Whether the defendants have executed the- disputed agreement; of sale; and have received the earnest money of Rs.100,000? OPP (2) Whether the signature of the defendants upon the disputed agreement has been obtained by fraud and misrepresentation? OPD (3) Relief.".

3. Evidence was recorded, whereafter suit of the respondents for specific performance was decreed through judgment and decree, dated 13-6-1997 by the learned Civil Judge, Sialkot. The appellants filed an appeal thereagainst. This appeal was dismissed by the learned Addl. District Judge, Sialkot through judgment and decree, dated 12-1-1998. Hence the present second appeal.

4. The learned counsel for the appellants contended that the terms' of agreement to sell (Exh.P-1) include a term regarding revocation of the agreement, if the amount of earnest money was refunded by the appellants. Wherefore, the intention of the parties was not to sell the property in question but the agreement in fact was relatable to some other money transaction. He further contended that the agreement was not duly proved.

5. No-one appeared on behalf of the respondents, despite due service. Wherefore, they were proceeded against ex parte through order, dated 23-12-2003.

6. I have considered the submissions of the learned counsel for the appellants and do not find any merit therein. Reliance upon the terms of agreement to sell (Exh.P-1) amounts to an admission and acceptance of existence and execution of Exh.P-1. The written statements of the appellants as defendants show that they denied the agreement, whereupon, the above referred issues were framed. At this, the learned counsel for the appellants stated that the respondents had manoeuvred to obtain signatures of the appellants on bland stamp paper with pretended object to make a power of attorney. This again is contradiction of the case of purported fraud or misrepresentation raised by the appellants.

7. In view of the admission of signatures by the appellants on Exh.P-1, the onus was heavy upon the appellants to prove fraud or forgery committed by the respondents in making this agreement to sell instead of the purported power of attorney. No convincing or credible evidence was presented by the appellants.

8. The objection regarding non-production of both the marginal witnesses is also untenable. The appellants admitted their signatures upon the document i.e. Exh. P.1, which has been duly proved by the respondents through production of the original as Exh.P-1 and by despition of P.W.1 and P.W.2. No. legal infirmity is shown to have been committed by the learned Courts below in rendering their concurrent findings of facts on execution and existence of Exh.P-1 and payment of earnest money as per the terms of the agreement. It is well settled that second appeal is only entertainable if a legal ground is available to the appellants to challenge the concurrent judgments of the learned Courts below.

9. I am afraid, in absence of any legal ground, there is no merit in the present appeal, which is accordingly dismissed, with no order as to costs. M.I./C-8/L?????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.