2006 PLP 669 (CLC)

JAWWAD S. KHAWAJA, J.-The appellant/defendant impugns the appellate decree, dated 29-3-2004, whereby the decree of the learned trial Court, dated 12-6-2003 was set aside and a suit filed by the respondents/plaintiffs seeking specific performance of an agreement to sell was decreed.

2. The facts of the case have been elaborately set out in the appellate judgment and need not, therefore, be reproduced in extenso.

3. The respondents/plaintiffs filed a suit seeking specific performance of an agreement. It was their case that on 15-9-1993 the father of the appellant/defendant, namely, Muhammad Siddique had orally agreed to sell the suit-land to them, while on the following day i.e. 16-9-1993, a written agreement to sell (Exh.P.1) was executed by the appellant. The appellant in his written statement denied having executed the agreement. The learned Appellate Court has examined the evidence on record while concluding that the appellant Arif Ali had, indeed, executed the agreement to sell in favour of the respondents/ plaintiffs. The reasoning of the learned Appellate Court is proper and it has correctly appraised the evidence on record.

4. It is true that Muhammad Siddique, father of the appellant, was one of the marginal witnesses to Exh.P.1 and had thumb-marked the - same. He, however, was won-over by the appellant. The agreement nonetheless, was proved through the other marginal witness and also Mushtaq Ahmad, who was the scribe and had signed the agreement (Exh.P. I). He also proved the execution of the agreement by the appellant. In these circumstances, the said Mushtaq Ahmad, who appeared as P.W. was also a competent attesting witness. Support, if required, for this proportion can be had from the case titled Nazir Ahmad v. Muhammad Rafique 1993 CLC 257.

5. Learned counsel for the appellant placed a great deal of stress on the fact that the alleged oral agreement by the father and the subsequent written agreement by the son on the following day detracted from the veracity of the case set up by the respondents/plaintiffs. He also adverted to the fact that while the agreement (Exh.P.1) was executed by the appellant Arif Ali, the property in the Revenue Records was in the name of his father Muhammad Siddique. This circumstance has, however, been adequately explained by Muhammad Aslam respondent/plaintiff, who appeared as P.W.S. He also deposed that Muhammad Siddique had informed the respondents that he had gifted the suit-land to the appellant and had agreed that if the gift mutation was sanctioned, then the sale-deed would be executed by the appellant, but if the said mutation was not sanctioned, then Siddique himself would execute the sale-deed. The testimony of the respondent/plaintiff rings true. The respondents also produced the Part Patwar of the aforesaid gift mutation which was not sanctioned subsequently. This document also goes to show the truthfulness of the respondent's testimony.

6. In the foregoing circumstances, I find the appellate decree to be unexceptionable. Furthermore, learned counsel for the appellant was unable to show the existence of any of the grounds mentioned in section 100, C.P.C. which would justify interference in the appellate decree in this second appeal. This appeal is, therefore, dismissed with costs. H.H.T./A-589/L?????????????????????????????????????????????????????????????????????? Appeal dismissed.