2003 PLP 410 (MLD)

(4) Whether plaintiff's suit is defective and collusive, hence is liable to be dismissed? OPD. (5) Whether plaintiffs' suit is not maintainable under section 42 Specific Relief Act? OPD. (6) Whether this Court lacks jurisdiction to try the suit? OPD. (7) Whether the plaintiffs have not challenged all the Mutations Nos.40 dated 5-10-1983 and 44 dated 6-11-1985, hence the suit is not maintainable? OPD. (8) Whether the mutations are based on fraud, forgery and misrepresentation, hence are illegal, void and in-operative against the rights of the plaintiffs? OPD. (8-A) Whether the agreement dated 23-10-1982 is a result of fraud and forgery, void, illegal and liable to be set aside? OPD. 1 to 6. (9) Whether the plaintiffs are entitled to the relief as prayed for? OPP. (9-A) Whether the suit is barred by time? OPD. (9-B) Whether the plaintiffs unauthorized added para. No.7 in the plaint and failed to reproduce paras. Nos.6 and 8 of the original plaint, if so, its effect? OPD. (10) Relief.

3. Both the parties led their evidence. The learned Civil Judge observed that the agreement to sell alleged to have been executed by the respondents on 23-10-1982 is fabricated. The learned Additional District, Judge also recorded a finding on Issue No.8-A and proceeded to observe that the appellants badly failed to prove the execution of the agreement to sell (Exh.P.1) with confidence-inspiring evidence.

4. The learned counsel for the appellants has argued that the appellants were able to prove the execution of the agreement to sell, dated 23-10-1982 with respondent Mst. Fateh Bibi, widow and the sons and daughter of Rahim Bakhsh, the other respondents, but both the Courts fell in error while recording the findings of Issues Nos.8 and 8-A against the appellants by misreading of the evidence on record. Further argued that the appellants are in possession of the property which fact was not denied by the respondents and they support the contention of the appellants that the agreement to sell was executed by the respondents. 4-A. On the other hand, the learned counsel for the respondents has argued that Mst. Fateh Bibi, widow, was an old and illiterate lady whereas the other respondents were minors and no agreement to sell was executed by them. The agreement to sell is forged document and both the Courts below having jurisdiction by reading the evidence correctly have no-suited the appellants.

5. Mst. Fateh Bibi is admittedly an illiterate lady. Similar is the position with respondents Nos. 1 to 6, who are also illiterate persons. Respondents Nos.4 and 5 Muhammad Aslam and Muhammad Azim were minors. No independent evidence has been produced by the appellants to show that Mst. Fateh Bibi or other respondents had their any relative to be present at the time of execution of the alleged agreement to sell, dated 23-10-1982. The onus to prove the agreement to sell Exh.P.1, dated 23-10-19152 was on the appellants. Malik Ghulam Abbas, Advocate, is scribe of the document Exh.P.1, who is real brother of appellant No.

1. In fact, two stamp papers were obtained on the same day, one was executed in favour of Mehraj Din, which is D.2, and on the same day another stamp paper was prepared in the shape of Exh.P.1, on which the alleged agreement to sell dated 23-10-1982 was reduced into writing. The document executed in favour of Mehraj Din would show that the same has been written by Malik Ghulam Abbas, Advocate, who is brother of appellant No.3. The respondents have produced the guardianship certificate Exh.D.8, which shows that respondents Nos.4 and 5 were minor at the time of execution of the agreement. Nobody is allowed under the law to sell the property of the minors without permission of the Court. Admitted position on the record is that Mst. Fateh Bibi was not appointed as guardian of the minors nor that any permission of selling the land owned by the minors was obtained from the Civil Court. Therefore, there was no valid agreement to sell in favour of the appellants on behalf of respondents Nos.4 and

5. The agreement to the extent of the minors was void. It is not understandable that total consideration of Rs.80,000 was fixed by the parties at the time of execution of the agreement to sell, but the payment of Rs.10,000 was postponed for a longer period of five years. Appellants Nos. 1 and 2 were tenants over the suit-land and it seems that to protect their illegal possession they filed the suit on the basis of the alleged agreement to sell. Khasra Girdawari, available on the file as Exh.D.5, proves the factum of the possession of the appellant Abdul Hamid Khan as tenant under the respondents. Muhammad Boota the other marginal witness of the agreement to sell (Exh.P.1) has not been produced by the appellants. No attempt has been made by the appellants to get the thumb-impressions of Mst. Fateh Bibi to be compared with her admitted thumb-impressions. In this view of the matter, the appellants have miserably failed to discharge the onus of proving the execution of agreement to sell in their favour. There is concurrent finding of fact against the appellants, which cannot be interfered with in the second appeal. Suffice to say that the second appeal is maintainable only on a question of law. Neither any question of law has been pointed out by the learned counsel for the appellants nor it is has been argued. For what has been discussed above, this appeal failed and is dismissed accordingly. H.B.T./A-668/L Appeal dismissed.