2007 PLP 838 (SCMR)

CH. IJAZ AHMED, J.

Brief facts out of which the present petition arises are that. petitioner filed suit for specific performance of agreement to sell, dated 29-12-1961 relating to the property in question against the respondent in the Court of Civil Judge, Hafizabad on 30-9-1992. The contents of the plaint reveal that property in question was an evacuee property which was originally owned by Sundar Singh. After the partition respondent purchased the property in question for consideration of Rs.900 vide P.T.O. dated 28-12-1960 issued by the Deputy Settlement Commissioner, Gujranwala. Agreement to sell dated 29-12-1961 executed relating to the purchase of Compensation Book No.315568.HFD/A-339 between the petitioner and respondent. Contents of the plaint reveal that respondent received Rs.1,360 in cash and sell out her entire rights of compensation book in favour of the petitioner and agreed to alienate the suit property in his favour and further agreed that the respondent would complete the execution of sale-deed when the property finally be transferred in favour of respondent. Possession of the property in question was delivered to the petitioner as part performance of the said agreement. Permanent transfer rights were devolved upon respondent on 10-9-1963 but the respondent did not act upon her part of the agreement and refused to execute the sale-deed at asking of the petitioner in his favour, on one pretext or the other, she has been postponing the matter. The respondent vide Mutation No.3074 dated 30-4-1992 got her name in the Revenue Department and on this event the petitioner asked her to alienate the suit-land in his favour but she refused. The petitioner had filed said suit after three days of her refusal to execute the sale-deed. Respondent filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 7 issues and after recording the evidence of the parties, dismissed the suit vide its judgment and decree, dated 31-3-1996. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Hafizabad who accepted the same vide its judgment and decree, dated 17-6-1998 and the suit was decreed. Respondent being aggrieved filed civil revision in the Lahore High Court who accepted the same, set aside the judgment of the First Appellate Court and restored the judgment of the trial Court vide impugned judgment. Hence this petition.

2. The learned counsel for the petitioner submits that trial Court as well as the learned High Court has erred in law to ignore the agreement to sell which was executed between the parties and attained the presumption of truth by flux of time as the document in question was 30 years old. He further submits that attesting witnesses and scribe of the agreement had since been died and the petitioner had proved the execution of the agreement to sell by producing Muhammad Jaffar, Muhammad Shafi (petitioner) and their statements were discarded by the trial Court as well as the High Court without any justification and relied upon the statement of the respondent.

3. We have considered the submissions made by counsel for the petitioner and perused the record. It is a settled law that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal's case PLD 1969 SC

617. The learned High Court has wide power to reverse the finding of the First Appellate Court while exercising power under section 115, C.P.C. having supervisory jurisdiction. In the case in hand, the learned High Court had taken a lot of pain to reappraise the evidence on record after examining each and every portion of the evidence on record and had come to the conclusion that finding of fact recorded by the trial Court was based on reasons, logic while appraising the evidence on record whereas the learned First Appellate Court had reversed the finding of the trial Court in violation of the law laid down by the superior Courts and also acted on surmises and conjectures. It is admitted fact that petitioner is a beneficiary of the agreement in question, therefore, it is the duty and obligation of the petitioner to show that the agreement was executed by the respondent after having independent advice and this fact was not proved and discharged by the petitioner as depicted from the record. The learned High Court had taken into consideration this aspect of the case while reversing the finding of the First Appellate Court. The judgment of the learned High Court is in consonance with the law laid down by this Court in Ghulam Ali's case PLD 1990 SC

1. Thus, in view of law laid down by this Court in Ghulam Ali's case the strict positive and independent evidence should have led by the petitioner to prove the execution of the agreement to sell and payment of consideration which from the reading of the statements of the petitioner is not so established. It is settled law that 'presumption qua thirty years old document under Article 100 of Qanun-e-Shahadat Order, 1984 is permissive and not imperative. The Court must consider the evidence of the documents, in order to enable it to decide whether in any specific case it should or should not presume proper signature and execution. It is settled law that the Court should be very careful about raising any presumption under Article 100 in favour of old documents specially when the same are produced during the trial of suits in which under proprietary rights are set up on the basis of such documents/deeds. It is also settled law that the Court may refuse to apply the presumption where evidence in proof the document is available, or where the evidence has produced and disbelieved. See Ramchari's case AIR 1924 All. 869, Raghubar Singh's case AIR 1921 Oudh 55, Mansukh Panachand Shah's case AIR 1930 Bom. 39 and Ram Naresh Singh's case AIR 1932 Oudh

227. It is a settled law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. For the purpose of E exercising discretion conduct of the petitioner is always relevant and necessary, it is better and appropriate to reproduce basic facts in chronological order for the purpose of exercising discretion in view of the conduct of the petitioner: (i) Agreement to sell 'allegedly executed between the parties on 29-12-1961. (ii) Permanent Transfer Order was issued by the Settlement Department in favour of respondent on 10-9-1963. (iii) Mutation was sanctioned in favour of respondent on 30-4-1992. (iv) Suit was filed by the petitioner on 30-9-1992.

4. In case the aforesaid facts are put in juxtaposition, then it is crystal clear that petitioner has purchased compensation book from the respondent then the petitioner must have vigilant qua the subsequent event relating to issuance of permanent transfer order in favour of respondent on 10-9-1963. The petitioner did not file suit for specific performance within the period of three years in terms of Article 113 of the Limitation Act, 1908 from the date of execution of agreement. The petitioner even did not file suit immediately after the sanctioning mutation in favour of the respondent on 30-4-1992 and filed suit as mentioned above on 30-9-1992. The conduct of the petitioner as mentioned above does not deserve that discretionary relief be granted in favour of petitioner. It is pertinent to mention here that subsequent conduct of the parties is always a relevant factor for determination of status of document. See M. Saeed Sehgal's case PLD 1964 SC

598. It is pertinent to mention here that the jurisdiction possesses by this Court in such matters under Article 185(3) of the Constitution is discretionary and it has repeatedly been held to be so. Keeping in view the aforesaid circumstances, we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in Haji Saifullah Khan's case PLD 1989 SC 166 and Nawab Syed Raunak Ali's case PLD 1973 SC

236. This Court does not, normally, interfere in the findings of fact recorded by the learned High Court while exercising power under Article 185(3) of the Constitution.

5. For what has been discussed above, the petition has no merit and the same is dismissed. Leave declined. M.H./M-24/SC Petition dismissed.