2001 PLP 2145 (YLR)

Issues: (1) Whether there was a valid agreement to sell between the plaintiff Nazir Ahmad and the predecessor of defendants, which was later on executed an agreement, dated 29‑6‑1976 by defendant No.1.? O. P.P. (2) If Issue No.1 is proved then Whether the plaintiff Nazir Ahmad is entitled to the specific performance of the agreement to sell? O. P. D. (3) Whether the agreement to sell is void because of section 19 of the Colonization Act? O.P.D. (4) Whether the suit of the plaintiff is within time? O.P.D. (5) Whether the plaintiff Nazir Ahmad is estopped to bring the present suit? O.P.D. (6) Whether the defendant Abdul Hameed etc. are entitled to receive special costs? (7) If Issues Nos.5, 1 and 2 are not proved then whether the defendants are entitled to decree prayed for? O.P.D. (8) Whether the Civil Court has no jurisdiction to try the suit of Abdul Hameed etc. as per preliminary Objection No.4 of the written statement? O.P.P. (9) Whether defendants Abdul Hameed etc. are estopped to file their suit against Nazir etc.? O.P.P. (Nazir Ahmad etc.). (10) Relief.

5. After considering evidence adduced by the parties, the learned trial Court was of the view that the alleged agreement to sell claimed by the appellant to have been executed in his favour by Muhammad Akbar Khan predecessor‑in‑interest of the respondent was not proved. However, the learned trial Court found that the agreement to sell dated 29‑6‑1976 was made by respondent No.1 Abdul Hamid in favour of the appellant. The learned trial Court held that as respondent No.1 was entitled to only half of the subject land and as the agreement to sell dated. 29‑6‑1976, was not proved to have been executed on behalf of respondents Nos.2 and 3, the appellant was entitled to a decree for specific performance of half of the subject land i.e. 204 Kanals only on the payment of Rs.1,40,000 only after adjustment of Rs.10,000 claimed to have been paid as earnest money to respondent No.

1. The suit for possession of respondent No.1 was correspondingly dismissed while the suit of respondents Nos.2 and 3 for possession was decreed in their favour to the extent of their share measuring 204 Kanals only. Vide judgment and decree dated 4‑6‑1988, the learned trial Court passed a decree in the aforesaid terms.

6. Respondent Abdul Hamid son of Muhammad Akbar Khan filed an appeal against the said judgment and decree. Cross -objections were also filed in the said appeal by the appellant.

7. Vide judgment, dated 22‑6‑1989 passed by the learned District Judge, Rahimyar Khan, the appeal of Abdul Hamid respondent No.1 was accepted while tic cross‑objections filed by Nazeer Ahmed were dismissed.

8. This Regular Second Appeal and R.S.A. No.44 of 1989 are directed against the judgment and decree, dated 22‑6‑1989 passed by learned District Judge, Rahimyar Khan. The learned counsel for the appellant appearing in support of the Regular Second Appeal has at very outset conceded that there was no sufficient material on the record to rebut the concurrent findings of both lower Courts as far as they related to the earlier agreement to sell which was allegedly made by Muhammad Akbar Khan, predecessor‑in- interest of the respondents in favour of appellant. The learned counsel for the appellant thus confined himself to challenge the findings of the learned lower Courts regarding the alleged subsequent agreement to sell dated 29‑6‑1976 (Exh.P.1). According to him this latter sale agreement lead been proved on the record through the statements of P.W.1 Abdul Nabi, P.W. 2 Muhammad Nawaz and P.W.3 Bashir Ahmed. He further submitted that the evidence to prove Exh.P.1 was sufficient and should have been relied upon by the learned First Appellate Court, despite the contrary opinion of Handwriting Expert. According to the learned counsel for the appellant, the evidence of Handwriting Expert is to be viewed with caution and cogent evidence otherwise adduced on the record cannot be ruled out of consideration on the basis of the opinion of the Handwriting Expert alone. He further asserted that as the agreement to sell was duly proved, the suit of the respondent for possession could not have been decreed against him.

9. On the other hand, the learned counsel appearing for respondents has strongly asserted that the appellant in his suit for specific performance had specifically relied upon two agreements to sell, one was the alleged agreement made in his favour by Muhammad Akbar Khan in pursuance of which the appellant claims to have been put in possession by Muhammad Akbar Khan. The appellant further claims to have paid a sum of Rs.20,000 as advance to the said Muhammad Akbar Khan. According to the learned counsel for the respondent, the second agreement dated 29‑6‑1976 was alleged to have been executed by respondent No.1 in affirmation of the earlier agreement to sell. The claim of the appellant as made by him before the learned, lower Courts was that both these agreements were complementary of each other. The contention of the learned counsel for the respondent is that the basic agreement having found not to be proved by both the learned lower Courts and the concession by the learned counsel for the appellant not to challenge the first agreement in the Regular Second Appeal, would take away the very basis of the possession of the appellant over the subject property. He further contended that the evidence of P. W.1, P. W.2 and P.W.3 was totally insufficient to prove the agreement to sell dated 29‑6‑1976. The non production of the scribe of the agreement to sell dated 29‑6‑1976 or the stamp vendor was fatal to the case of the appellant.

10. Arguments have been heard and record perused.

11. As far as the first agreement between Muhammad Akbar Khan, and the appellant is concerned, both the learned lower Courts concur that the appellant had failed to prove the said agreement to‑ sell the, reasons given by both lower Courts need‑ not be recounted here. Even the learned counsel for the appellant has not in his discussion pressed the said earlier agreement to sell.

12. As regards the proof of execution of the agreement to sell dated 29‑6‑1976 Exh. P.1, the learned counsel for appellant has referred to the statements of P.W.1. Abdul Ghani son of Ahmed Khar. P.W.2 Muhammad Nawaz son of Khushi Muhammad, P.W.3 Bashir Ahmed son of Mian Allah Ditta and the statement of the appellant himself as P.W.4. The learned First Appellate Court has correctly read and appreciated the statements of the aforesaid witnesses: The learned First Appellate Court was correct in not placing reliance upon the statement of these witnesses. The learned First Appellate Court was also mindful of the fact that the appellant had not produced the vendor of stamp paper or the scribe of the said agreement to sell. It has also not been explained as to why the scribe and the stamp vendor could not be produced. The learned First Appellate Court also held that much reliance could not be placed upon the witnesses produced by the appellant, albeit marginal witnesses, as they were closely related to the appellant. It is in this back ground that the report of the Handwriting Expert assumes evidentiary importance. Handwriting Expert appeared as D.W.4 and produced his report Exh.D.3 on the record. According to his report the questioned Urdu signatures of Abdul, Hamid present at four places upon Exh. P. 1 were compared with his specimen signatures obtained in Court and on another document Mukhtar‑e‑Aam and his signatures on his Identity Card. According to his report the questioned Urdu signatures of Abdul Hamid did not bear identical characteristics with the specimen provided. The specific reasons for the conclusion by the Handwriting Expert are given in Exh.D.5. The enlarged signatures are on the record as Exh. D.4. The‑Handwriting Expert appeared in Court as D.W.4. He was cross‑examined at length but nothing disparaging was brought out in his statement. It is also noticed that the learned First Appellate Court itself undertook the exercises of comparing the disputed signatures itself. The opinion formed by the First Appellate Court itself may not be conclusive on its own. Nonetheless, the report of Handwriting Expert, the basis of his opinion, the result of cross‑examination upon the Handwriting Expert are all relevant and are helpful for a just determination of the controversy. It is true that the evidence of Expert is generally considered to be weak type of evidence and it is not safe to place total reliance upon the same in the absence of other material on the record. When it is said that as the matter of prudence the Courts who insist upon some sort of corroboration of the opinion of the Handwriting Expert. What is meant is that the report must be supported by other positive corroborative evidence. In the instant case, it is a question of sufficiency of the proof of a document. There is nothing illegal for the Court to draw strength from the report of a Handwriting Expert when the said report also coincide with the view formed by the Court independently from its appreciation of the evidence on the record. The evidence of P.W.1, P.W.2 and P.W.3 have been found to be insufficient to prove Exh.P.1. Adverse inference shall also be drawn from the non‑production of scribe and the stamp vendor of Exh. P.

1. The opinion of the First Appellate Court itself upon its own examination of the disputed signatures cannot also be totally ignored. The report of the Handwriting Expert in such circumstances can be relied upon to arrive at a just conclusion. The findings of the First Appellate Court that the agreement to sell dated 29-6‑1976 has not been proved is unexceptionable and is hereby upheld. The next question worthy of note is the failure of the appellant to prove the basis of his possession. After claiming in the plaint that he was put in possession by Muhammad Akbar Khan the predecessor‑in‑interest of the respondent, his entire case for possession disappears upon his failure to prove the first agreement. There is `no reliable evidence on the record to show that the appellant was inducted in possession as a tenant. The learned counsel for the appellant has also not been able to specify as to how, even if the agreement to sell Exh.P.1 is proved it could operate to bind respondents Nos.2 and 3 who have admittedly, not even executed Exh.P.1.

13. For all what has been discussed above, this Regular Second Appeal raises no question of law and fact which could merit interference with the impugned judgment and decree of the lower Appellate Court. As a result this R.S.A. has no merit and is hereby dismissed leaving the parties to bear their own costs. H.B.T./N‑116/L Appeal dismissed.