2010 PLP 1162 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

This revision petition has been directed against the judgment and decree, dated 28-11-1991 passed by the learned civil Court and the judgment and decree, dated 4-12-2000 passed by the learned appellate Court.

2. Briefly the facts of the case are that Subedar Ameer Khan son of Allah Bukhsh filed a suit for specific performance with permanent injunction against one Syed Azhar Hussain son of Syed Tassadaq Hussain claiming that the defendant is the owner of land measuring 11-K 15-M out of total land measuring 110K 9M bearing Khewat No.85/164 to 172, Khasra Nos. 369, 828, 894, 900, 953, 617, 516, 620, 622, 848, 849, 850, 517, 623, 624, 1258, 1257 and 619 as per Register Haqdaran-e-Zamin for the year, 1972-73 on the basis of a decree of pre-emption, dated 25-10-1980, subsequently, as per Register Haqdaran-e-zamin for the year, 1983-84, Khewat number of the suit-land were changed to 105/292 to

309. The plaintiff/respondent averred that the defendant entered into an agreement to sell with the plaintiff of the suit-land measuring 11-K 15-M on 28-11-1980 against consideration of Rs.40,

000. The petitioner/defendant received the entire consideration and delivered the possession of the suit-land to the plaintiff. As per agreement, it was decided between the parties that the petitioner/defendant will execute the sale-deed as and when demanded by the plaintiff. The respondent/ defendant instead of executing the sale-deed in favour of the respondent/ plaintiff tried to alienate the suit property to some other person and refused to execute the sale deed in his favour. On his refusal to execute the sale-deed, the respondent/plaintiff instituted a suit for specific performance of agreement and permanent injunction.

3. The defendant contested the suit and specifically denied the `Iqrar-nama' (agreement to sell) and claimed that the said `Iqrar-nama' is a forged and factitious document.

4. Out of the pleadings of the parties, following issues were framed: "ISSUES:

1. Whether the suit is time-barred? OPD

2. Whether the defendant has entered into an agreement to sell the land under-suit, dated 28-11-1980 and is bound by it till now? OPP

3. Whether the plaintiff is entitled to the decree prayed for? OPP

4. Whether the suit is filed without locus standi and cause of action? OPD

5. Whether the defendant is entitled to receive special costs under section 35-A, C.P.C.? OPD

6. Relief."

5. Both the parties adduced their evidence, oral as well as documentary. The trial Court vide judgment and decree, dated 28-1-1991 decreed the suit. The defendant assailed the judgment and decree through an appeal which too was dismissed.

6. Learned counsel for the petitioner submits that the agreement to sell (Mark-C) is only of an executing nature and as such is not enforceable in law. Execution of the said agreement has been denied and as such the learned Courts below have wrongly decreed the suit. He further contends that the judgment and decree is based on misreading and non-reading of record. Lastly, contends that judgments and decrees of both the Courts below are not sustainable in the eye of law.

7. On the other hand, learned counsel for the respondents supports the judgments and decrees and contends that the findings of both the Courts below are concurrent and as such this Court cannot disturb the findings of the learned Courts below.

8. I have heard the learned counsel for the parties and perused the record with their assistance.

9. Argument of the learned counsel for the petitioner that alleged agreement to sell is of an executing nature and is not enforceable in law and has no force as the respondent is denying the very execution of agreement, hence how he can argue that agreement is of executing nature when he is denying its execution. The petitioner cannot be allowed to approbate and reprobate. Learned counsel argues that no description of the property is given in the agreement and that the agreement has not been exhibited on record in accordance with law and, as such, it cannot be enforced in law, the disputed property was acquired by the petitioner/defendant through a pre-emption decree from Subedar Ameer Khan, predecessor-in-interest of the plaintiff, against a consideration of Rs.40,000 and as such how he can agree to sell the suit property for a same consideration. Stamp paper of Iqrar-nama/agreement to sell was purchased on 21-6-1980 but the same was shown to be executed on 28-11-1980 after the period of almost five months and as such the said proven fact available on record casts serious doubt on the authenticity of this document, that no marginal witnesses have been produced as required under Article 79 of the Qanoon-e-Shahadat Order, 1984. He further argues that, learned trial Court was not justified to compare the signatures itself on agreement to sell with the admitted signatures of the petitioner/defendant and that alleged agreement to sell was executed on 18-11-1980 but the suit has been filed on 31-11-1985 but no explanation has been given by the respondent/plaintiff.

10. The argument of learned counsel for the petitioner regarding description of the property is belied by his own representation when he admits in his written statement the contents of para. 1 of the plaint as true. In para. 1 of the plaint, the plaintiff has given the description of property, subject-matter of agreement to sell and defendant has admitted the contents of the said para as correct. This context of the petitioner is against Article 113 of the Qanoon-e-Shahadat Order, 1984, which provides that facts admitted need not to be proved.

11. The document agreement to sell is no doubt exhibited but the same is marked "A" when the said document was shown to petitioner/ defendant, he immediately replied as under:

12. The petitioner/defendant above said statement shows that on seeing the agreement, his immediate reaction was be admitted the same after a while when he thought that he was wrongly admitted his signatures, he tried to defuse his admission. Hence after the admission of the petitioner/defendant, the said document cannot be ignored by the Court. It is an established principle of law that Court is fully competent to consider all documents whether these are exhibited or not for reaching the true conclusion of the controversy. As far as non-production of marginal witnesses of agreement is concerned, it is proved on record that respondent is in uninterrupted possession of the suit-land, the petitioner in his statement deposed that respondent is tenant but failed to produce any tenancy document or any oral evidence in proof of his claim. The learned trial Court on the objection of respondent referred the signatures to Handwriting Expert for his opinion, the Handwriting Expert after examining the specimen signatures of the petitioner shown his inability to give his definite, opinion and stated as "specimen signatures are not of standard specimen and because unconscious characters of the writer". Learned trial Court for digging the truth summoned the file of pre-emption suit filed by the petitioner for the same property and his admitted signatures were available in the file. Learned Civil Judge himself compared the signature of the defendant on `Iqrar-nama' (Mark-A) and on the documents available in the Court file and came to the conclusion that signature on `Iqrar-nama' is of the respondent. The Court is equipped with legal authority to compare the signature of the parties itself. These powers are available to the Court even where report of the Handwriting Expert is available on record.

13. After examining the signatures of respondent, the observation of the learned trial Court is that defendant deliberately changed his signature when his specimen was obtained in Court for sending the same to Handwriting Expert. Mala fide intention on the part of the defendant is evident from the fact that in a suit for pre-emption in which he was claimant, he signed the document in Urdu but in the present suit, he signed the document in English. This clearly shows the mala fide intention of the defendant. Learned counsel for the petitioner has relied upon Article 84 of the Qanoon-e-Shahadat Order, 1984 and Haj Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439), Mst. Noor Jehan and others v. Muhammad Rafique and others (1995 CLC 43), Ansar Ahmed v. Bank of America, Karachi (PLD 1975 Karachi 252), Mst. Nusrat Khanum v. Liaqat Ali (PLD 1994 Kar. 252) and Sultan Ali v. Mst. Khatija Bai (1995 CLC 1441). No doubt, non-production of the marginal witnesses of the document is fatal but the circumstances of this case are different, out of two marginal witnesses, one is the father of respondent and the other is the political rival of the respondent. The other aspect of the case, one marginal witness is the father of petitioner, why the petitioner has not examined him. If he has not executed the agreement, it was very easy for him to produce both the marginal witnesses and they can deny their signatures on the agreement to sell but the petitioner intentionally avoided to produce them. Further the statements of D. W.1. and D. W.2. show that in cross-examination, they categorically admitted that deceased Subedar Ameer Khan, the plaintiff, was a responsible person and he never committed any fraud and forgery throughout his life, this categorical admission on the part of the witnesses of the defendant is sufficient to negate all the allegations of the petitioner. This admission on the part of the witnesses of the adversary proves the credibility of the plaintiff.

14. The evidence available on record further reveals that the suit-land was in possession of plaintiff even when the petitioner father was its owner, who sold the property to Subedar Ameer Khan whereupon the petitioner filed a suit for pre-emption which was decreed in his favour but surprisingly no execution was filed by the defendant against the judgment debtor for obtaining the possession of the pre-empted land. It is also available on record that neither the petitioner nor his father is residing in the village where the suit property is situated. They left the village after selling their entire property including residential house. The petitioner never claimed the suit-land before filing of suit by the respondent.

15. These are the facts which convinced both the Courts below to pass a decree against the petitioner. Both the Courts rightly concluded that petitioner sold the suit-land to respondent against consideration of Rs.40,000 and executed agreement to sell Mark-A. As far as the objection of limitation is concerned, the Mark-A shows that no date was fixed for execution of sale deed, it was agreed between the parties that as and when the respondent/purchaser will desire or demand the petitioner/seller will execute the sale-deed. When the petitioner refused to execute the sale deed, the respondent filed the suit, his limitation started from the date of refusal of and not from the execution of agreement.

16. In view of the above circumstances, it has been proved beyond any shadow of doubt that the petitioner had received consideration of Rs.40,000 and agreed to sell the property to the respondent. I am of the considered view that both the Courts below have not committed any illegality or irregularity. The findings of the learned Courts below are in accordance with law and fact and as such, this revision petition fails and is hereby DISMISSED, with no order as to costs. A.R.K./A-65/L Petition dismissed.