2003 PLP 733 (CLC)

(1) Whether an agreement dated 26‑7‑1967 was validly arrived at between the plaintiffs and Sultan son of Maher Ali (deceased) who was the predecessor‑in‑interest of the defendants? OPP (2) Whether a sum of Rs.96,000 as the earnest money was paid by the plaintiffs to Sultan (deceased)? OPP (3) Relief.

2. After recording evidence of the parties, the learned Senior Civil Judge found that the documents relied upon by the respondents were not validly executed by Sultan and dismissed suit of respondents vide judgment and decree dated 30‑11‑1993.

3. Respondents filed an appeal: The learned Additional District Judge accepting the appeal held agreement to sell and receipt for Rs.96,000 to have been properly executed and decreed the suit of the respondents by setting aside judgment and decree dated 30‑11‑1993.

4. Learned counsel for the parties read and re‑read the entire evidence and relied upon the judgments respectively passed by the warned Courts below favouring their respective clients. The principal argument of learned counsel for the respondents was that the First appellate Court has given its findings on the basis of analysis of evidence, wherefore, in absence of misreading or non‑reading, this Court cannot interfere in a second appeal. Whereas learned counsel for the appellants stated that the learned Additional District Judge neither properly evaluated and appreciated the evidence nor did he read the evidence in entirety to record his conclusions against the appellants.

5. I have attended to the arguments of learned counsel for the parties and have also examined the record. The learned Additional District Judge while discussing the evidence in order to draw his conclusions placed heavy reliance on the statement of scribe i.e. Ghulam Siddique, who appeared as P.W.1, Sohna (P.W.2) and Mukhtar (P.W.3) i.e. the marginal witnesses. The learned District Judge did state in his judgment that P.W.1 admitted in his cross‑examination that he did not know Sultan deceased personally and earnest money of Rs.96,000 was not paid in his presence. Such statement of P.W.1 obviously went against the case of respondents but the learned Additional District Judge instead held that payment of Rs.96,000 as earnest money was made to Sultan deceased because P.W.2 and P.W.3 in their, respective statements had deposed that payment of earnest money was made to Sultan deceased at a distance of 10/ 12 feet from the Petition‑Writer (P. W .1) or 5 to 7 feet away from the Petition‑Writer's chamber (P.W.3). While recording that payment of earnest money was supportedly made to Sultan deceased; the learned Additional District Judge failed to deal with admission of P.W.1; the Petition‑Writer that he did not know Sultan personally. This factor obviously reflects adversely upon the case of the respondents who did not present any evidence that Sultan deceased was properly indentified by any one before the Petition‑Writer. Further more it is not comprehensible and conceivable that respondents and Sultan deceased (as per the case of respondents‑plaintiffs) were present before the Petition‑Writer (P.W.1) but no payment whatsoever was made by respondents to Sultan deceased in presence of the Petition‑Writer, who allegedly recorded in Exh.P.1 and Exh.P.2, that such payment had been made. No reason has been advanced to explain the circumstance as alleged by P.W.2 and P.W.3 that Payment was either made at a distance of 10/12 feet away from Petition Writer or 6/7 feet away from the chamber of Petition‑Writer. This of course is a major contradiction which has been termed as minor in nature by the learned Additional District Judge in para. 12 of his judgment while recording that "there are contradictions in the statements of P.Ws." Furthermore, learned Additional District Judge has failed to meet the reasoning on which judgment of the learned trial Court was passed. Another circumstance going against the case of the respondents was that Faqir Muhammad i.e. tenant of deceased Sultan, has not been presented to prove the transaction. Although allegedly the entire transaction was completed on the suit‑land and said Faqir Muhammad tenant thereon ‑was real brother‑in‑law of plaintiff Farooq as has admitted by P.W.4 in his cross‑examination. The learned Senior Civil Judge, Bhakkar duly analysed and appreciated the evidence of the parties in its proper perspective and discussed the same as under:

"Stamp vendor from whom stamp papers was purchased has not been produced in witness‑box by the plaintiffs, therefore, it cannot be ascertained whether Sultan deceased purchased stamp papers from the stamp vendor or not. Payment has not been made in the presence of the Petition‑Writer as stated by the Petition‑Writer and the witnesses, P.W.2 and P.W.3, but P.W.4 has stated that payment was made before Petition‑Writer. This is material contradiction in the statement of P.W.4, P.W.2 and P.W.3. P.W.2 stated that he has no knowledge as to who paid amount to the Sultan and whether plaintiffs paid amount in accordance with their share or not, whereas P.W.3 stated that Farooq paid a sum of Rs.38,500, whereas remaining price was paid by Ghafoor. P.W. stated that the name of the Petition Writer was Ghulam Rasul, whereas Petition‑Writer has stated his name as Ghulam Siddique. P.W.3 is real brother of plaintiff Muhammad Farooq. P.W.3, is therefore, is not independent witness. He cannot be relied upon safely. Sultan deceased was a resident of Renala Khurd. P.W.2 and P.W.3 stated that he had no house at Chak No.45/T.D.A. and he used to live. with some. land holders in the village, but both P.W.2 and P.W.3 have not been able to tell the name of the person with whom Sultan deceased stayed at that day. Exh.D.2 shows that Faqir Muhammad son of Qutab Din, was in possession of the suit property before it came to the hands of the plaintiff. The contention of the defendants that, the document namely agreement of sale has been got executed on behalf of Faqir Muhammad who is a relative of the plaintiffs appears to be correct."

6. In view of the above, I have no reservation in holding that learned Additional District Judge, Bhakkar failed to appreciate the evidence which was in fact misread and misinterpreted by him.

7. In view thereof, this appeal is accepted and impugned judgment and decree dated 25‑4‑1994 passed by learned Additional District Judge, is set aside and that of learned Civil Judge, Bhakkar is restored. There shall, however, be no order as to costs. H.B.T./S‑571/L Appeal accepted.