2005 PLP 1147 (SCMR)

MUNIR A. SHEIKH J.‑‑‑ Leave is sought against the judgment, dated 12‑10‑2001 of the Lahore High Court, Lahore, whereby revision petition filed by the respondent against the judgment of the First Appellate Court has been accepted.

2. Shahadat, respondent, filed suit against the petitioner for specific performance of agreement of sale, dated 5‑5‑1985 of the land measuring 7 Kanals, 6 Marlas for a consideration of an amount of Rs.12,

000. It was contested on the ground that the said document/ agreement was fictitious meaning thereby that it was a case of total denial of the execution of the said agreement of sale by the petitioner.

3. The respondent‑plaintiff to prove execution of the said document which was produced in evidence as Exh.P.1 examined Mansha, P.W.2, Muhammad Yousaf, P.W.3 who are the marginal witnesses of the same. Shahadat‑plaintiff appeared as his own witness as P.W.1 and supported his case that the present petitioner agreed to sell his land for the above‑mentioned amount of consideration. When formal agreement of sale on the basis of previous sale agreement was scribed, he was not present on account of indisposition and the amount of earnest money according to him was given to Mansha P.W.2 who paid the same to the petitioner.

4. The present petitioner who had denied the execution of the said agreement of sale during trial, examined Abaidullah another marginal witness of the said document who stated that it was actually a Pattanama which was intended to be executed by Shahadat in favour of Amir and Shahadat was not present on the date being indisposed. He admitted presence of his signatures on the said document and also the presence of Muhammad Yousaf and Amir, the two other witnesses at that time.

5. The trial Court after considering the evidence of both the parties, came to the conclusion that execution of the said agreement of sale had been fully proved therefore, through judgment, dated 7‑9‑1989, the suit was decreed. The learned Additional District Judge in appeal filed by the petitioner however, came . . . ....it execution of the agreement was not proved because it was not produced along with the plaint when the suit was filed which was produced by Mansha P.W.2 who paid the earnest money and that there was no proper description of the land with Khasra numbers due to which the same was uncertain. The findings recorded by the trial Court were reversed and on acceptance of appeal, the suit was dismissed through judgment, dated 4‑7‑1993 against which revision petition filed by the respondent‑plaintiff has been accepted by the learned Judge in Chambers of the Lahore High Court through the impugned judgment dated 12‑10‑2001 against which leave is

6. The learned Judge in Chambers of the High Court has rightly taken the view that the judgment passed by the First Appellate Court was based not only on non‑reading of evidence but also on no evidence. As to the uncertainty in the proper description of the land sold, it has been rightly pointed out that firstly, the suit could not have been dismissed on that ground and secondly, the petitioner himself produced Exh.D.1, copy of. Khasra Girdawari in which description of the land by Khasra numbers had been given. Apart from this, learned counsel for the petitioner when questioned, admitted that the petitioner was owner of the land in village to land measuring 7 Kanals, 6 Marlas and none else. The question of uncertainty in the description of the land could not be the basis for holding that execution thereof had not been proved. We may also observe here that in the written statement, the petitioner did not raise plea of uncertainty in the description of land to avoid the said agreement of sale, therefore, this could not have been taken into consideration as evidence against the respondent‑plaintiff by the First Appellate Court.

7. As regards non‑production of the said agreement along with the plaint, we may also observe here that it was the right of the petitioner at the proper time to raise this objection so that the respondent had an opportunity to meet the same and apply to the Court for permission to produce the said document at later stage which the petitioner did not do. When the said agreement was produced by Mansha and admitted in evidence, no objection was raised about its production and admissibility on the said ground therefore, the First. Appellate Court could not take up this ground of its own when the same had already been abandoned by the petitioner in whom right was vested to raise objection, therefore, the High Court has rightly held that judgment of the First Appellate ‑Court is based on non‑reading and misreading of the evidence on the record:

8. It has come on the record that the parties are related to each other. Mansha was the intervener through whom agreement was arrived at; therefore, if the said document had been produced by him through whom the earnest money was also paid; no exception could legally be taken. The plea that Pattanama was in fact intended to be executed could not be raised, for the same was not raised in the written statement as such, execution of the document stands proved even through evidence of Abaidullah witness of the petitioner.

9. For the foregoing reasons, the impugned judgment of the High Court does not suffer from any illegality therefore, this petition has no merits which is accordingly dismissed and leave refused. S.A.K./A‑402/S Leave refused.