1998 PLP 530 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Petitioner Abdul Jabbar has assailed the judgment, dated 12-9-1994 by the Peshawar High Court delivered in Civil Revision No.22 of 1.993. On 13-2-1983 the petitioner filed suit against his brother respondent Abdul Sattar for performance of an Iqrarnama, dated 12-2-1978. According to the plaint ors 12-2-1978 the parties entered into an Iqrarnama by which respondent Abdul Sattar mortgaged with possession his land mentioned in the plaint with the petitioner for five years, in consideration of Rs.12,500 on which the respondent was to pay profit at the rate of 10% per month. In default of return of the mortgage debt with profit by the respondent to the petitioner, the former was bound to sell the disputed property to the latter for a sum of Rs.49,600 (viz at the rate of Rs.2,000 per Kanal). The petitioner alleged in his plaint that period of the mortgage was over and yet neither the mortgage debt was returned nor the profit amounting to Rs.75,000 was paid. It was averred that the respondent was deemed to have been paid consideration amount of Rs.49,600, due to his failure to return the mortgage debt and to pay the profit. The suit was contested by the respondent who in his written statement raised preliminary objections about non-payment of proper court-fee and about under-valuation of the suit where total liability of the respondent was mentioned to be Rs.87,

500. The respondent denied execution of the Iqrarnama. Form of the suit was challenged on the ground that the petitioner was co-sharer in the suit land and as such, he was not competent to file suit for possession. In the alternative the respondent took plea that if the Iqrarnama bore his signature the same was obtained by fraud and undue influence, and therefore, the same was void and ineffective. The Iqrarnama was also challenged to be without consideration and fraud upon statute. The terms and conditions of the Iqrarnama were alleged to be against public policy and void and ineffective. It was also averred that conditions imposed on the respondent in the Iqrarnama amounted to clog and the same were void and not enforceable. The Iqrarnama was challenged to be an unregistered document and to be against Negotiable Instruments Act. The suit was also challenged to be time-barred. The respondent. claimed special costs. After settlement of issues and recording of evidence, the learned Senior Civil Judge, D.I. Khan under his judgment, dated 24-9-1991 dismissed the suit, after taking view that the petitioner was not entitled to the decree on the basis of the Iqrarnama in dispute. In appeal a learned Additional District Judge under his judgment, dated 7-1-1993 took different view and accepted the appeal by reversing the judgment and the decree of the trial Court, and granting the decree in favour of the petitioner for specific performance of contract in respect of the suit land, on payment by him of Rs.49,600 minus the amount of Rs.12,500 already paid. The balance of Rs.37,100 was directed to be deposited within one month and thereafter, a sale-deed was to be executed in favour of the petitioner. The respondent took the matter to the High Court where his Civil Revision No.22 of 1993 was accepted on 12-9-1994. The High Court while accepting the revision petition, set aside the judgment and the decree of the appellate Court and restored the same of the trial Court. Hence this petition Mirza Anwar Baig, learned counsel the petitioner argued that petitioner had filed a simple suit for specific performance of that part of the lqrarnama by which the respondent was to transfer in his name the suit property on receiving Rs.49,600 which amount was said to have been paid to the respondent. The learned counsel for the petitioner was not prepared to concede that the Iqrarnama said to have been executed on 12-2-1978, was a mortgage deed and that suit filed by the petitioner was for foreclosure. The learned counsel repeatedly stated that the Iqrarnama in question was a sale agreement and the suit filed by the petitioner was for specific performance of the agreement to sell. In para.2 of the plaint there is an averment that the respondent had mortgaged with possession the suit property with the petitioner through an Iqramama, dated 12-2-1978 in consideration of Rs.12,500 and that period of the mortgage was fixed to be five years. Prayer clause of the plaint is ambiguous. The petitioner has not specified as to what relief was sought by him. In heading of the plaint the petitioner mentioned about execution of the Iqrarnama, dated 12-2-1978 with the terms and conditions already reproduced. In heading of the plaint, it has been mentioned that the respondent was liable to transfer the suit property to the petitioner in case of non-payment of mortgage money with profit. Deposition of petitioner Abdul Jabbar as P.W.3 shows that the Iqrarnama (copy EXh.PW-3/I) related to an agreement between the parties that the suit land would be mortgaged to him (petitioner) for a period of five years for Rs.12,500 and that if the respondent failed to redeem the land he would be bound to sell the same to the petitioner. This makes it crystal clear that the document (copy Exh.PW-3/1) called as Iqrarnama was in fact a deed of mortgage which required registration. In absence of registration it was not even admissible in evidence. Petitioner Abdul Jabbar in his evidence deposed that his father died in 1972 leaving behind certain property in Kotla Saidan which was inherited by him and his four brothers and two sisters and that the same was joint and was being looked after by him. He also claimed to be looking after the suit Iand with assistance of his brother Abdul Razzaq. The petitioner added that all his brothers and sisters had appointed him as their general attorney but later on his mother and Abdul Razzaq cancelled such power. Respondent Abdul Sattar appearing as D.W.2 deposed that the petitioner was fully authorised by him and his brothers and sisters to look after the affairs of their property, that the petitioner got entered mutation regarding mortgage of the suit property in his favour but the same was rejected and such rejection was not challenged by the petitioner before any authority. The respondent added that he had every faith in the petitioner and that his signature on the disputed deed was obtained through fraud and the same was bogus. In the circumstances of this case, the onus was heavy on the petitioner to establish that the disputed Iqrarnama was consciously executed by the respondent. In the cross-examination of the respondent, it was not suggested to him that he intentionally signed the Iqrarnama, dated 12-2-1978, or that he mortgaged the suit property in favour of the petitioner on receiving money consideration. Even the terms and conditions of the Iqrarnama were not put to the respondent in his cross-examination. In the circumstances, the High Court rightly came to the conclusion that execution of the deed had not been proved by the petitioner, and that finding of the Trial Court was based on proper appreciation of the evidence, while that of the Appellate Court suffered from defect in relying on an unregistered document. The High Court appears to have taken correct view in the matter. No case is made out for grant of leave to appeal and this petition stands dismissed. A.A./A-1409/S Leave refused.