1994 PLP 1116 (SCMR)

SHAFIUR RAHMAN, J: ‑‑The petitioners seek leave to appeal against the judgment of the Lahore High Court dated 16‑5‑1992 whereby a Regular Second Appeal was accepted, the first appellate Court order was set aside and the dismissal of the suit as ordered by the trial Court was upheld.

2. The predecessor‑in‑interest of the petitioners had instituted a civil suit claiming specific performance on the basis of an earlier agreement to sell dated 12‑11‑1971 executed by Ghulam Muhammad, the owner, in his favour. He also challenged the transfer of the same land by registered deed to the predecessor‑in‑interest of respondents Nos.1 to 10 (Haji Nazir Ahmed) by Ghulam Muhammad on 27‑4‑1973 pending the suit for specific performance. A serious controversy with regard to the genuineness of the execution of the agreement dated 12‑11‑1971 arose. It was dealt with by the trial Court in the following words:‑ "The comparative study of the evidence of the parties available on record and arguments advanced by the learned counsels for the parties make it crystal clear that the plaintiff has failed to assert any logic or reason for the execution of Exhs.P.1 and P.2 at the District Headquarters Bahawainagar, when the services of petition writer and stamp vendor were available at Fortabbas as well as at Haroonabad. EXh.P.1 the agreement to sell is reported to be written at Serial No.1111 in the register of petition writer. On the stamp paper it is nowhere stated that from where it has been purchased. The stamp of stamp vendor is also not available on the back of Exh.P.1. The petition writer has also failed to submit the register of his petition writing in the Court of law to substantiate this fact, that in fact this agreement to sell was written on the register of his petition writing at Serial No.1111 dated 12‑11‑

71. The signature of Ghulam Muhammad at Exhs.P.1 and P.2 and on the written statement are evidently unidentical. Ghulam Muhammad was admittedly not known to the petition writer personally. By whom Ghulam Muhammad was identified, the agreement to sell and receipt i.e. Exh.P.1 and Exh.P.2 are also silent in that regard. Statement of Muhammad Sharif and Muhammad Shafi are also controversial, contradictory and divergent specially with regard to the execution of both the documents The result of above discussion is that the plaintiff has failed to convince this Court regarding execution of Exhs.P.1 and P.2 that these were not a fictitious and vague documents." On this finding, the trial Court dismissed the suit taking the agreement to be not enforceable.

3. The appellate Court reversed the finding of the trial Court holding as hereunder:‑‑ "Thus, both the P.Ws. have proved the execution of P‑1, P‑2 which have never been rebutted by the respondents. Exh.P.3 also finds corroboration from Exh.D‑1, copy of Khasra Girdawari. The suit land was from joint Khata of appellant and Ghulam Muhammad respondent. Respondents have failed to rebut the case of the appellant. DWs stated the execution of agreement between the respondents but no such agreement has been produced." It further held that the transfer in favour of the respondents had taken place during the pendency of the litigation and was not binding on the plaintiff. The suit was decreed.

4. As regards the applicability of the doctrine of lis pendens to the case, the High Court came to the conclusion that the agreement itself being not proved the other question did nut require decision. On the question of the genuineness of the agreement it held as hereunder:‑‑ "The version of Rahim Bakhsh/plaintiff and Muhammad Shafi and Muhammad Sharif P.W.4 is completely demolished by this entry. The stance taken by the plaintiff had been that in the first instance he had gone to Haroonabad and then proceeded to Bahawalnagar on account of non‑availability of stamp‑paper there; that the same was purchased on the date of execution. This version is totally negatived by the document itself. Seen from this perspective I have no difficulty in coming to the conclusion that the version of Ghulam Muhammad vendor rings truth."

5. On the factual plane the finding recorded by the High Court in respect of the agreement to sell dated 12‑11‑1971 is fully borne out by the material placed on record. The appellate Court had not attended to the details of the agreement concerning the execution of these documents. The decision suffered from infirmity of improper reading of the evidence and lack of proper analysis of the evidence. It could justifiably be interfered with in second appeal.

6. No case is made out for our interference. Leave to appeal is therefore, refused. AA./A‑1087/S Leave refused.