2023 PLP 1372 (MLD)

ANWAAR HUSSAIN, J.

The appellants before this Court, claim to be the vendees under the agreement to sell dated 15.04.1993 ("the agreement"), entered into between predecessor-in-interest of the appellants Nos. 1 to 5, namely, Muhammad Nawaz Khan (since deceased) along with appellant No. 6 namely, Jamshed Akhtar Khan alias Jamshed Mustafa Khan, (hereinafter referred as "the Plaintiffs/Appellants") and predecessor-in-interest of respondents Nos.1 to 4 (hereinafter referred as "the Defendants/Respondents Nos. 1 to 4). Suit for specific performance was instituted by the Plaintiffs/Appellants, with the averments that Muhammad Saleem Khan alias Yar Muhammad Khan, predecessor-in-interest of Defendants/Respondents Nos.1 to 4, was owner of land measuring 400 Kanals situated in Khewat No.75 as per Register Haqdaran-e-Zameen for the year 1988-89, Mauza Hassan Shah Tehsil Mailsi, District Vehari (hereinafter referred as "the suit property"); that said Muhammad Saleem Khan, through his general attorney, namely, Muhammad Younis Khan who is his real son and arrayed as Respondent No.1 in the present appeal, agreed to sell the suit property to the Plaintiffs/Appellants through the agreement for consideration of Rs.3,500,000/; that a sum of Rs.3,000,000/- was paid as earnest money in presence of witnesses against receipt and possession of 160 Kanals out of said 400 Kanals was handed over to the Plaintiffs/Appellants and it was settled between the parties that the remaining amount of Rs.500,000/- would be paid till 01.01.1994; that it was also agreed between the parties that if the vendor fails to execute the sale deed in favour of the vendees, the latter would be entitled to transfer the suit property through court of law, without payment of remaining sale price and if the vendees fail to pay the balance price, the earnest money of Rs.3,000,000/- would stand forfeited in favour of the vendor; that on 22.05.1993, the vendor Muhammad Saleem Khan passed away and the Defendants/Respondents Nos.1 to 4, being his legal heirs, were asked to execute the sale deed in favour of the Plaintiffs/Appellants and written legal notice in this regard was also served upon them but they refused to do so, which constrained the Plaintiffs/Appellants to institute the suit.

2. The suit was contested by the Defendants/Respondents Nos.1 to 4, by filing written statement wherein besides some preliminary objections, the factual assertions of the plaint were denied. It was averred that deceased Muhammad Saleem Khan, predecessor-in-interest of the Defendants/Respondents Nos. 1 to 4 never entered into the agreement with the Plaintiffs/Appellants; that the agreement is fictitious and forged; and that the Plaintiffs/Appellants, being close relatives of the Defendants/Respondents Nos.1 to 4, are in possession of the suit property on account of the fact that they are holding land in excess of their entitlement in a joint khata to the prejudice of the Defendants/ Respondents Nos. 1 to 4 and not in furtherance of the agreement.

3. Out of divergent pleadings of the parties, issues were framed and evidence led by the parties was recorded. Learned Trial Court decreed the suit of the Plaintiffs/Appellants, vide judgment and decree dated 18.06.2001. Feeling aggrieved, the Defendants/Respondents Nos.1 to 4 preferred an appeal before this Court. The Plaintiffs/Appellants also preferred appeal against imposing condition of depositing the remaining sale price of the suit property, i.e., Rs.500,000/-. The appeal of the Defendants/Respondents Nos.1 to 4 was dismissed for want of prosecution, vide order dated 16.09.2013 and in this backdrop the Plaintiffs/Appellants did not press their appeal as well and the same was also dismissed as withdrawn vide order dated 16.09.2013. Later on, the appeal of the Defendants/Respondents Nos.1 to 4 was restored on 10.10.2013 and on their application, present Respondents Nos.5 to 47, being the subsequent vendees (hereinafter referred as "the Subsequent Vendees/ Respondents Nos. 5 to 47"), were impleaded in the appeal and case was remitted to learned District Judge, Mailsi, on 27.09.2016, because of change in the pecuniary jurisdiction of this Court. Respondents Nos.21 to 47 moved application for framing of additional issues. The Defendants/Respondents Nos.1 to 4 and the Subsequent Vendees/Respondents Nos.5 to 20, through their separate written replies, admitted the contents of the application whereas the Plaintiffs/Appellants filed contesting written replies separately. After hearing the parties, the learned Appellate Court below allowed the appeal, set aside the judgment and decree of the learned Trial Court and dismissed the suit of the Plaintiffs/Appellants, vide judgment and decree dated 16.01.2018. Hence, this Regular Second Appeal has been preferred.

4. The Defendants/Respondents No.1 to 4 have already been proceeded ex-parte, vide order dated 13.12.2021.

5. Learned counsel for the Plaintiffs/Appellants submits that the minor discrepancies in statements of the PWs were irrelevant and wrongly taken as major contradictions when the factum of execution of the agreement, the receipt of payment of the sale consideration and delivery of possession was proved. Adds that the respondents evasively denied the execution of the agreement and took a contradictory stance in their evidence. Places reliance on case reported as "Mumtaz Khan and 8 others v. Haji Nawab Khan" (2003 MLD 399) to contend that the Defendants/Respondents Nos.1 to 4 evasively denied the execution of any agreement in their pleadings and while adducing evidence, DW-2 took the stance that thumb marked stamp papers in favour of the Appellants/Plaintiffs were got issued by predecessor-in-interest of the Defendants/Respondents Nos. 1 to 4 for the purpose of confirmation of bail in a criminal case which were misused, hence, as the signatures and thumb marks on the stamp paper have been admitted, the same shifted the burden upon the Defendants/Respondents to prove the said purpose which they could not discharge. Concludes that the learned Appellate Court below misread the evidence by holding that the stamp vendor failed to produce the receipt of submission of record with the record room, therefore, the issuance of the stamp papers could not be proved.

6. Conversely, learned counsel for the Subsequent Vendees/Respondents Nos. 5 to 47, while admitting that Subsequent Vendees/Respondents Nos. 5 to 47 purchased the suit property during the pendency of the suit, submits that they are bona fide purchasers for value as no notice of earlier sale or pendency of litigation was recorded in the revenue record. Adds that even otherwise, the agreement was not proved as required under the law and the learned Trial Court took a jaundiced view of the evidentiary resume of the case by only highlighting deficiencies in the defence case ignoring that the Plaintiffs/Appellants were to stand on their own legs. Places reliance on "Nazir Abbas through L.Rs. v. Ghulam Muhammad through L.Rs." (2017 CLC 996) and "Liaqat Ali v. Muhammad Ashraf and others" (2016 YLR 551) in support of his contentions.

7. In rebuttal, learned counsel for the Plaintiffs/Appellants stated that the Subsequent Vendees/Respondents Nos.5 to 47 are not bona fide purchasers inasmuch as they are close relatives of DW-3 who was mustajir and is one of the subsequent vendees arrayed as Respondent No.47 and was in possession of the remaining suit property at the time of execution of the agreement and well aware of the dispute. Concludes that since Subsequent Vendees/Respondents Nos. 5 to 47 purchased the suit property, having full knowledge of the dispute in respect of the same, therefore, they are not bona fide purchasers and principle of lis pendens is also fully applicable.

8. Arguments heard. Record perused.

9. After hearing learned Counsel for the parties, it transpires that the substantial question of law involved in the adjudication of the instant lis boils down to whether findings by the learned Appellate Court below are substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the learned Trial Court or the learned Appellate Court below, on account of misreading and mis-appreciation of the evidence, has failed to take into account a material piece of evidence. The answer lies in examining whether execution of the agreement, payment of sale consideration and possession of the suit property was not proved by the Plaintiffs/ Appellants.

10. With the above legal position in sight, it is imperative to note that in order to succeed, the Plaintiffs/Appellants were required to prove that the parties reached a consensus in respect of the sale of the suit property. The issuance of the stamp paper used to reduce the sale transaction into writing i.e., the agreement, was required to be proved by producing its vendor. Similarly, the attesting witnesses of the agreement were required to prove the execution and contents thereof. It has come on record that Plaintiff No.2/Appellant No.6, himself appeared as PW-1 and also examined both marginal witnesses of the agreement as PW-3 and PW-4 to fulfill the requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. He also produced the receipt (Exh-P.2), which was witnessed by the same PWs. Moreover, stamp vendor was also produced as PW-2.

11. The learned Appellate Court below has highlighted the inconsistencies in the statements of PWs to hold that same are major contradictions, which the learned Trial Court has not noticed. The inconsistencies which the learned Appellate Court below have held to be major contradictions, inter alia, includes part of the statement of PW-1 who has stated that PW-4 has affixed signatures on the agreement whereas PW-4 himself stated that he has affixed thumb impression. Having examined the entire evidence of the Plaintiffs/Appellants in general and the statements of PW-1 and PW-4 in particular, this Court is of the view that this type of inconsistencies are not of such a nature that can be held to destroy the entire statements of the said PWs. Similarly, the statement of one of the witnesses (PW-3) that the agreement was on stamp paper and the receipt was on plain paper and other PWs stating that both documents were on stamp papers too is also not a major contradiction keeping in view the fact that the witnesses are admittedly villagers and not educated persons and it is not only difficult for such persons to differentiate between a plain paper and a stamp paper but also remember the same for a long period of time, between the execution of the document and the recording of evidence. Likewise, if one witness stated that it was month of March, 1991 whereas the agreement was executed in April, 1991, the same too could not be made basis of discarding the entire evidentiary resume of the Plaintiffs/Appellants inasmuch as shortcomings as pointed out by the learned Appellate Court below are not only minor in nature but are natural and usual as the agreement was executed in the year 1993 whereas the evidence was recorded in the year 2000. Here it is also imperative to note that the witnesses appearing in the Court after lapse of considerable period of time from the date of transaction are likely to contradict each other on minor points because human faculty of memory is subject to faltering and the testimony of witness, inter se, always of varying nature because after lapse of such a long time they are not expected to give cent percent accurate statement on each and every minor detail regarding a transaction having taken place in their presence else the same appears to have been result of tutoring. Therefore, in the instant case, minor inconsistencies between statements of PWs have been given undue weightage by the learned Appellate Court below and are not of such significance so as to throw out the entire claim of the Plaintiffs/Appellants more particularly, when the possession of the Plaintiffs/Appellants over part of the suit property has been admitted by the Defendants/Respondents Nos. 1 to 4 side albeit claiming it to be on account of the fact that the property is in joint khata and the Plaintiffs/Appellants were in possession of excess of their entitlement. Here, it is imperative to note that the Defendants/ Respondents Nos.1 to 4 failed to provide any plausible explanation as to why the Defendants/Respondents Nos.1 to 4 or their predecessor-in-interest never challenged the excess possession of the Plaintiffs/Appellants in accordance with law before or even after institution of the suit by the Plaintiffs/Appellants. The learned Appellate Court ignored the fact that the evidence of PWs as a whole was required to be analyzed, which has gone unchallenged as to the material issue and in cross examination it has not been dislodged so as to disbelieve the same regarding the sale itself and the payment of price consideration made thereunder.

12. On the other hand, once the fact was asserted by the Plaintiffs/Appellants about the execution of the agreement and the same was appended with the plaint, it was obligatory on part of the Defendants/Respondents Nos.1 to 4 to come forward with a clear stance as to how the agreement was fictitious and/or forged. However, when the plaint and written statement are put in juxtaposition, perusal thereof indicates that while nothing explicit was stated in the written statement as to how the agreement was forged, the stance taken by the Defendants/Respondents Nos.1 to 4 while leading evidence destroys their case in totality as the evidence was led beyond pleadings and a new story about existence of criminal case wherein the purchase of stamp papers and signatures thereon was asserted. It is settled principle of law that particulars of fraud are to be explicitly stated in the pleadings and then proved. In the instant case, the said principle has not been followed and evidence led beyond pleadings is of no help to the Defendants/Respondents Nos.1 to

4. Case titled as "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 SC 151) is referred in this regard. Moreover, while the Plaintiffs/Appellants clearly indicated their willingness to pay the remaining consideration amount by issuance of legal notice before instituting the suit, the Defendants/Respondents Nos. 1 to 4 admitted receipt of legal notice in their written statement but again contradicted their stance when Defendant No.1/Respondent No.1 appeared as DW-2 and denied receipt of the notice. In fact, the Defendants/Respondents Nos.1 to 4 had failed to lead any convincing evidence in defence. Furthermore, the learned Appellate Court below has misread the evidence inasmuch as it non-suited the Plaintiffs/Appellants with the observation in paragraph 24 of the impugned judgment that the stamp vendor could not produce the record of stamp papers Nos. 934 to 935 dated 15.04.1993 and he during cross-examination admitted that he even had not brought the receipt of the record room regarding the consignment of the concerned register bearing the record of stamp papers Nos. 934 and 935, whereas the stamp vendor (PW-2) appeared and stated as under: (Emphasis supplied) Above quoted portion of statement clearly depicts that learned Trial Court examined and returned the receipt regarding consignment of the register bearing stamp pages No.934 and

935. Therefore, after recording of statement of PW-2, no effort was made on part of the Defendants/Respondents Nos.1 to 4 to summon the record of the stamp paper used to record the transaction, which fact also goes against the Defendants/Respondents Nos.1 to

4. Similarly, the learned Appellate Court has also erred by holding that there is contradiction as to who scribed the agreement by holding as under: "

24. On the other hand, DW-1 Muhammad Saleem Akhtar the then clerk of Rana Muhammad Asghar Advocate stated that Muhammad Nawaz plaintiff got two blank stamp papers and one simple paper along with writing and he wrote the (sic) some writing on Ex.P-1 and Ex.P-2. This witness was cross examined by the respondents/plaintiffs but the plaintiffs could not prove that he is not scriber of Ex.P-1 and Ex.P-2." (Emphasis supplied) The record reveals that PW-1 categorically stated that after the stamp papers were purchased by DW-2, the parties went to the seat of one Rana Muhammad Asghar, Advocate and his clerk (Munshi) namely, Muhammad Saleem Akhtar recorded the transaction, who appeared before the Court from nowhere on the date of recording of evidence of the Defendants/Respondents Nos. 1 to 4 and deposed as DW-1, which is the most interesting aspect of evidentiary resume of the case inasmuch as in his statement, DW-1 categorically stated that he has not been summoned by the learned Trial Court. Respondent No.1/DW-2 also admitted that DW-1 was not his witness. Learned Trial Court has aptly held in this regard that when DW-1 was neither summoned by the Court as witness nor he has any special relation with the defendants, then his presence to come and depose against the Plaintiffs/Appellants clearly leads to inference that said DW-1, who was admittedly scribe of the agreement was won over by the Defendants/ Respondents Nos. 1 to

4. In addition, it has been noticed that DW-1 in his Examination-in-Chief stated that the agreement and receipt were written by him but only in presence of late Muhammad Nawaz (predecessor-in-interest of Appellants Nos. 1 to 5) and the witnesses of the agreement never signed before him while confirming the place of execution of the agreement by stating as under: (Emphasis supplied)

13. The matter can be examined from another angle as well. The Defendants/Respondents. Nos. 1 to 4, though in their written statement, have alleged that the agreement and the receipt are fake, yet they have not specifically challenged the same either by way of initiating criminal proceedings or through an independent civil suit even after taking preliminary objection in this regard. The Honorable Supreme Court in case titled "Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others" (2021 SCMR 415) held that in such an eventuality simple denial of a document being fake and fictitious is not legally sufficient unless same facts are proved and established on record. In the instant case, it is well evident that after evasively denying the agreement as well as the receipt in their written statement, the Defendants/Respondents Nos.1 to 4 realized that the thumb impression of Defendant No.1/Respondent No.1 can be easily proved through forensic comparison and hence, took a somersault and admitted the signatures as well as thumb impression with the assertion that the same were obtained in connection with a criminal matter regarding which they could not lead any proof. Statement of DW-2, during his Examination-in-Chief, reads as under: (Emphasis supplied) Whereas while being cross-examined, DW-2 even could not substantiate the story narrated in Examination-in-Chief and stated as under: (Emphasis supplied)

14. On the top of all is the statement of DW-3, namely, Riaz Hussain who is one of the subsequent vendees and arrayed as Respondent No.47 and deposed that he was in possession of some part of the suit property as Mustajir as contended by the Plaintiffs/Appellants. When confronted, learned counsel also could not deny the fact that rest of the Subsequent Vendees/Respondents Nos. 5 to 47 are close relatives and/or acquaintances of the said DW-3. This fact alone indicates that the Subsequent Vendees/Respondents Nos. 5 to 47 were well aware of the dispute regarding the sale of the suit property under the agreement. DW-3 stated as under: It is settled law that a subsequent vendee/purchaser has to establish by discharging the initial onus that (i) he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise; (ii) there was no dishonesty of purpose or tainted intention to enter into the transaction while acting in good faith and (iii) he had no knowledge or notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the latter. Reliance is placed on cases reported as "Hafiz Tassaduq Hussain v. Lal Khatoon" (PLD 2011 SC 296) and "Bahar Shah and others v. Manzoor Ahmad" (2022 SCMR 284). In this view of the settled law, in the instant case, Subsequent Vendees/Respondents Nos.5 to 47 cannot claim to be bona fide purchasers. The cases referred by learned counsel for the Subsequent Vendees/Respondents Nos.5 to 47 have been considered but the same are distinguishable on facts and law point involved in the instant appeal.

15. This Court is aware of the fact that where the judgments of the learned Courts below are at variance and this Court is hearing a second appeal, preference should be given to the judgment of the learned Appellate Court below. However, the said principle of law does not entail its universal application, hence, it is not an impregnable and invariable rule of law as the finding of the lower Appellate Court would be immune from interference in second appeal only if the same is supported and substantiated by logical reasoning and proper appreciation of evidence and is not result of misreading and/or non-reading of evidence. Where the findings of the lower Appellate Court are at variance with that of the Trial Court, the two will definitely come in for comparison of their merits in light of the facts of the case and the reasons of which the two different and contradictory, if not opposing, findings have been respectively proceeded. If the judgment of the learned lower Appellate Court is found to be arbitrary or capricious, it can be rejected as held by the Honorable Supreme Court in case reported as "Madan Gopal and 4 others v. Maran Bepari and 3 others" (PLD 1969 SC 617).

16. Similarly, in Civil cases, what is required or considered sufficient is preponderance of evidence on the scale of probability while weighing the evidence of both the parties. On the basis of said yardstick applied in the present case, this Court is of considered view that the learned Appellate Court below has entirely gone against the weight of available evidence in holding that the execution of the agreement has not been proved although analysis of the evidentiary resume of the case clearly shows that the Plaintiffs/Appellants have been steadfast, consistent and unwavering in their stance not only in their pleadings about execution of the agreement and the receipt but also in their deposition and cross-examination. On the contrary, the Defendants/ Respondents Nos. 1 to 4 have not laid any serious challenge to the version of PWs rather one predominant element running across the pleadings and evidence of the Defendants/Respondents No.1 to 4 is evasive denial of the execution of the agreement leading to improvement of the case through recording evidence beyond pleadings vacillating from one position to another, without being able to substantiate either.

17. In view of the above discussion, this Regular Second Appeal is allowed, the impugned judgment of the learned Appellate Court is set aside and that of the learned Trial Court is restored. No order as to cost. MH/S-5/L Second Appeal allowed.