2019 PLP 57 (CLCN)

Laws Cited

Representation

• Sh. Masood Iqbal, Advocate for Appellant.
• Sardar Muhammad Azam Khan, Advocate for Respondents.
• 3. Sh. Masood Iqbal, the learned Advocate appearing for the appellant argued with vehemence that the judgment recorded by the District Judge as well as the learned High Court of Azad Jammu and Kashmir is against the record and badly suffers from misreading and non-reading of evidence. The learned Advocate argued that the learned High Court wrongly held that agreement-to-sell was not accepted by the vendee because no signatures are put on the agreement-to-sell dated 27.8.2009. The learned Advocate argued that once a proposal is made with the free consent of a party for consideration and the same is accepted, it becomes agreement notwithstanding the fact that signatures of the vendee are available on the document. The learned Advocate argued that the reasons listed by the High Court in support of the impugned judgment are erroneous and contrary to the well settled proposition of law. He argued that the execution of agreement-to-sell was proved by producing stamp vendor, the marginal witnesses namely Shakeel Shoukat and Khalid Pervaiz and nothing else was required for proof of document, but the District Judge as well as the learned High Court has misread the evidence of these witnesses and drew a wrong and erroneous conclusion from the same. The learned Advocate argued that as the agreement-to-sell was implemented by transfer of the possession and thereafter the appellant, herein, rented out the house in question and the tenant also appeared as witness, who has supported the version of the appellant that he has obtained the house in question from the appellant on rent and is paying the electricity and water charges bills regularly. The learned Advocate argued that onus of proof was wrongly shifted by the learned High Court on the shoulder of the appellant because once execution is proved the onus stood shifted on the defendant to prove that agreement-to-sell was not executed by their father and was concocted one.
• 4. Sardar Muhammad Azam Khan, the learned Advocate appearing for the respondents argued that the appeal before this Court is not competent because the power of attorney on the basis of which the defendant has filed the appeal does not authorize him to file the appeal before this Court. He argued that the attorney was bestowed with the authority for prosecution of the stay order application only, therefore, the very institution of the appeal before this Court is invalid. In support of his submission, the learned Advocate placed reliance on the cases reported as PLJ 1980 SC(AJ&K) 60 and 2014 SCR 1012. The learned Advocate further argued that as the plaintiff was beneficiary of the document, therefore, it was enjoined upon him to prove the execution of the document on the basis of cogent evidence. The learned Advocate argued that the stamp vendor has denied putting of signatures on the agreement-to-sell by the vendee in his presence and he has even not seen him on the relevant day. The learned Advocate further argued that agreement-to-sell was not put to Shakeel Shoukat, P.W. when he appeared before the Court for getting his statement recorded, therefore, an adverse conclusion was liable to be drawn to the effect that had the agreement-to-sell been put to him he would have supported the same. The learned Advocate argued that even the statement of Khalid Pervaiz P.W. is not confidence inspiring. The learned Advocate argued that Notary Public, who was an important witness in this case, was not produced as witness. The learned Advocate argued that both the Courts below have rightly perused the evidence and their conclusion is unexceptional and hardly requires any interference by this Court.
• 5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that a suit for specific performance of contract was filed by the appellant, herein, before the District Judge on 26.7.2010. The agreement-to-sell was allegedly executed by Mehmood Hussain Hashmi on 27.8.2009. After execution of the agreement-to-sell he died. The plot in question was duly transferred in the name of the legal heirs of the deceased, however, during the pendency of the case, the same was cancelled but again it was restored vide order dated 20.12.2016. The moot point in the case is as to whether the agreement-to-sell dated 27.8.2009 has been proved by the plaintiff. The plaintiff has produced Shakeel Shoukat one of the marginal witnesses, who has supported him but his signatures on the agreement-to-sell are not shown to him. Similarly, the stamp vendor, who has allegedly written the document, also disowned the fact that Mehboob Hussain Hashmi put his signatures on the document in his presence rather he has stated that he did not saw him on the day of execution of the document. His signatures were obtained on the stamp paper through some other persons, who have not been produced by the plaintiff. The other important witness was Notary Public, before whom Mehboob Hussain Hashmi appeared and affirmed the contents of the document (agreement-to-sell). He was also not produced. There left only Khalid Pervaiz, who, though, has supported the version of the plaintiff but the fact remains that as per law at least two marginal witnesses in order to prove the execution of agreement-to-sell in view of the provision of Article 17(2) of Qanun-e-Shahadat Order, 1984 are required. We have also noticed that the vendee has not put his signatures on the agreement-to-sell although he was present there. The learned High Court while dealing with this question has referred two judgments from Pakistan jurisdiction i.e. 2016 CLC 114 and 2013 YLR 1017. In the first case it was observed as under:-
• 6. The contention of the learned Advocate for the appellant that it was respondent who had to prove that the document was fraudulent, is devoid of any force. It is well settled law that where fraud/concoction with respect to the execution of a document is alleged, it is the beneficiary of the document who has to prove the same. The contention of Sardar Muhammad Azam Khan, the learned Advocate for the respondents that the appeal has incompetently been filed, has no force. Though in the power of attorney the word "stay order application" is mentioned but as the application for interim relief is a part of main appeal and it has been categorically stated that the case can be prosecuted by the attorney up to this Court, therefore, it cannot be said that the appeal has been filed incompetently.
• 7. Mr. Masood Ahmed Sheikh, the learned Advocate appearing for the appellant requested for amendment in the pleadings on the ground that the plot in question has been restored during the pendency of the case to the legal heirs of Hameed Hashmi. As the case is otherwise not proved, therefore, allowing the amendment will not bring any fruit for the appellant, herein. Had the case been proved in accordance with law, the restoration of document could have been avoided on the basis of principle of lis pendens as is enshrined in section 52 of the Transfer of Property Act.

Headnotes / Summary

Judgment & Decree