2004 PLP 827 (MLD)

A. Karim Malik for Appellant. Faiz Muhammad Bilal for Respondent. Respondent No.2‑Ex‑parte. Date of hearing: 9th December, 2003. This second appeal assails judgment and decree dated 25‑9‑2001 passed by the Additional District Judge, Bhakkar, whereby appeal of respondent No.1 was accepted and his suit for specific performance was decreed, setting aside the judgment and decree, dated 7‑12‑1995, passed by the trial Court.

2. A short factual background of the case is that the appellant was allotted 100 Kanals of land in Chak No.76/ML, Bhakkar, under 15 years lease scheme, out of which 50 Kanals was allegedly agreed to be sold to respondent No.1 through an agreement to sell dated 25‑2‑1987 for a consideration of Rs.1,00,000 which was alleged to have been received by the appellant vide pronote and receipt dated 19‑7‑1986. Sale deed in favour of respondent No.1 was agreed to be executed on attestation of mutation in favour of the appellant. Respondent No.1 claimed in his plaint that 10 days before the institution of the suit, the appellant refused to execute the sale‑deed in his favour which necessitated filing of suit for specific performance.

3. The appellant being defendant in the suit denied the assertion of the petitioner in the plaint by filing his written statement wherein he specifically denied the execution of all the three documents i.e. pronote, receipt and agreement to sell and claimed that he had already transferred the land in question, in favour of respondent No.2, who is his wife, through an agreement to sell dated 5‑1‑1987.

4. Respondent No.1 on gaining knowledge of agreement to sell by the appellant in favour of respondent No.2, filed another declaratory suit challenging this agreement to sell dated 5‑1‑1987. This suit was contested by the appellant. Both the suits of respondent No.1 were consolidated by the trial Court and' controversial pleadings of the parties necessitated framing of consolidated issues and recording of respective evidence of the parties. Learned trial Judge who was seized of these suits, on the basis of his appraisal of evidence on the file vide his judgment and decree dated 7‑12‑1995, dismissed both the suits of the appellant. His first suit for specific performance was dismissed on the ground that respondent No.1 committed fraud in having pronote (Exh.P.1), receipt (Exh.P.2) and agreement to sell (Exh.P.3) executed, in his favour whereas his other suit was dismissed in view of the statement of the appellant (D.W.1), wherein he stated that agreement to sell in favour of respondent No.2 has already been rescinded/revoked by him and thus, held that this suit has become infructuous.

5. Respondent No.1 aggrieved of the judgment and decree dated 7‑12‑1995, filed two separate appeals before the Additional District Judge, Bhakkar, and succeeded, as his appeal against the decree in the suit for specific performance was accepted and his suit, to this effect was decreed, whereas the other appeal was dismissed, for the reasons given by the trial Court on Issue No.2 vide a consolidated judgment and decree dated 25‑9‑2001. The appellant has now come up in second appeal before this Court for setting aside decree of the First Appellate Court granted in favour of respondent No.1. on 25‑9‑2001.

6. Learned counsel for the appellant submits that all the P.Ws. produced to prove documents, pronote, receipt and agreement to sell, having deep friendly relations, inter se, hatched a conspiracy to deprive the appellant of his valuable land which he never agreed to sell in favour of respondent No.

1. It is also a submission of the learned counsel for the appellant that though the appellant did not execute any agreement to sell yet respondent No.1 failed to prove transaction of sale between the parties, as possession of the land, throughout, remained with the appellant. He further submits that payment of consideration under the agreement to sell is also not proved and in this manner suit of respondent No.1 has erroneously been decreed by the First Appellate Court. It is also contended on behalf of the appellant that all the three documents Exh.P.1 to Exh.P.3 are not only fraudulent but are also forged and fictitious. It is also claimed that the appellant at the time of alleged agreement to sell was not owner of the property as proprietary rights on him were conferred on 13‑11‑1987 whereas the agreement is claimed to be of 25‑2‑1987. In support of his submissions, learned counsel for the appellant relied on the case of Mst. Ashraf Alia v. Dr. Asif Majeed (1991 CLC 53) and section 54 of the Transfer of Property Act, 1882, to assert that sale without delivery of possession and payment of consideration is not complete. Conversely, the learned counsel for respondent No.1, controverted the assertions of the appellant, supported the judgment and decree passed by the First Appellate Court and urged that execution of all three documents, above referred, have been proved, beyond any shadow of doubt. He also contends that the appellant had specifically asserted in his written statement and in his evidence that he did not execute agreement to sell (Exh.P.3) but this Court vide order dated 28‑10‑2002 got his thumb‑impressions compared with these three documents i.e. pronote (Exh.P.1), receipt (Exh.P.2) and agreement to sell (Exh.P.3) from the finger Print Bureau, Punjab, Lahore, who has reported that all these three documents carry the thumb impressions of the appellant and this report though has been objected by the appellant yet supports the assertions of respondent No.1 and dismentals the entire case, set up by the appellant.

7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. The appellant in his written statement has specifically denied the execution of all three document i.e. Exh.P.1 to Exh.P.3 and made a similar statement while appearing as D.W.1. Respondent No.1 in order to prove execution of three documents produced their marginal witnesses P.W.4 and P.W.5. A Both these witnesses materially supported the assertion of respondent No.1 that the appellant executed these documents and thumb‑impressions marked in their presence. Besides production of marginal witnesses of all the three documents, respondent No.1 produced scribe of pronote. (Exh.P.1) and receipt (Exh.P.2) whereunder he has received an amount of Rs.1,00,000 on 19‑7‑1986 as P. W.2 who also deposed that both these documents were scribed by him on the instructions of the appellant which were read over to him and in token of their correctness, the appellant thumb marked those, in his presence. Respondent No.1 also produced scribe of agreement to sell dated 25‑2‑1987 (Exh.P.3) as P.W.3. This witness stated in corroboration of statements of P. W.4 and P. W.5. All these four witnesses have proved execution of all these three documents to the hilt. Arguments of the learned counsel for the appellant that these witnesses have some deep friendly relations amongst them, has no substance in it because only relations and friends of some party come to attest document in his favour, and if at all it be assumed that there is some friendship between them. It is not enough to brush aside the impact of their evidence. It is not understandable as to why all the four witnesses will depose falsely against the appellant and for the benefit of respondent No.1 when they have no personal interest in the property in question. All these three documents (Exh.P.1 to Exh.P.3) were within the knowledge of the appellant, at least from the date of institution of the suit i.e. 2‑9‑1987, he did not take any step for having annulled those documents from any Court or authority. He did not proceed against respondent No.1 for foregoing these documents, on his behalf fictitiously, for some criminal case against him. It is claimed by the appellant himself that at case stage of the proceedings, respondent No forcibly took over the possession of the land in dispute, even at this stage no resentment against respondent No. 1 in form of criminal and civil case was shown by him.

8. In view of specific denial of execution of these documents by the appellant, this Court vide order dated 28‑10‑2002 got sample of thumb impressions of the appellant and sent those to Finger Prints Bureau, Punjab, Lahore, for comparison. A report from the said department dated 29‑4‑2003 has been received which confirms that all these three documents (Exh.P.1 to Exh.P.3) bear thumb‑impressions of the appellant, as all these thumb‑impressions match with those on the disputed documents. The appellant has objected to this report by filing written objections. I offered to the learned counsel for the appellant for examination of the Finger Print Expert as a witness, in support of his objections but he did not concur to this offer and opted to argue the case, as it is. Though I do not consider this report of the Finger Print Expert, as a part of the evidence already available in the suit yet it has much persuasive value and gives great strength in concluding the matter/dispute in favour of the respondent No.1. I feel no hesitation in affirming findings of the First Appellate Court whereby it concluded that the appellant did execute all three documents.

9. There is is not an iota of evidence on the file in support of the assertion of the appellant that the documents relied by respondent No.1. are forged or fictitious. At the same time, thee is no explanation of any kind as to how respondent No.1 obtained or got his thumb‑impressions on all these documents and in absence of any such evidence/explanation, I am not ready to accept arguments of the learned counsel for the appellant for annulling a judgment passed in consonance to evidence on the file. Respondent No. 1 has filed suit for specific performance claiming agreement to sell from the appellant and as such reliance by the appellant on section 54 of the Transfer of Property Act, 1882 or the judgment titled Mst. Ashraf Alia v. Dr. Asif Majed, supra, is misplaced. Requirement of delivery of possession, is a condition of complete sale and not that of on agreement to sell. Payment of price under the agreement to sell is proved by documentary as well as oral evidence. P.W.4 and P.W.5 have specifically proved payment of Rs.1,00,000 to the appellant at the time of execution of promote and receipt dated 19‑7‑1986.

10. For what has been discussed above, I am of the considered view that First Appellate Court has committed no illegality or irregularity in decreeing the suit of respondent No.1 and it, while so doing has not misread or non‑read any part of the record, in absence of which no interference is called for in this second appeal, which has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs. S.A.K./N‑2/L Appeal dismissed.