2002 PLP 2403 (YLR)

(1) Whether the alleged agreement dated 29‑5‑1990 is forged and fictitious and bogus document'? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the plaintiff has got no cause of action and locus standi? OPD (4) Whether the suit is false and whether the defendants are entitled to special costs? OPD (5) Whether the original owner of property namely Nasir Ahmed, has executed the agreement to sell with the present plaintiff on 29‑5‑1995? OPP (6) Whether the total amount of consideration was Rs.4,50,000 and the plaintiff has paid Rs.2,75,000 as earnest money at the time of agreement? OPP (7) Whether the plaintiff is entitled to specific performance of the contract?. OPP (8) Relief.

3. In order to prove a valid execution of the agreement to sell and the payment o f the advance sale consideration to Ch. Naseer Ahmed, plaintiff appeared as P.W.1; P.W.2 Sardar Khan, is the clerk of the counsel, who states to have written the agreement to sell, he proved the sale agreement as Exh.P.1. and also deposed that Ch. Naseer Ahmed and marginal witnesses had executed the document in his presence. P.W.3 Muhammad Din is the marginal witness of Exh.P.1 and has stated that Naseer Ahmed affixed his signature on the agreement to sell in his presence and received the part of the: consideration P.W.4 Muhammad Sharit, is also one of the marginal witnesses of the said agreement. Besides the plaintiff produced document Exh.P.2 to Exh.P.9. Conversely, defendants examined Muhammad Rafique as D.W.1; he is employee of the post office where Ch. Naseer Ahmed, had opened his account on 15‑1‑1990 and according to this witness, the deceased had thumb‑marked the form for opening of the account. He states that Ch. Naseer Ahmed, was suffering from paralysis, but he has conceded that he could affix his signature. D.W.2, is Mazhar Saleem. he is employee of the registration office and was examined by the appellant, to show that on the form, submitted by Ch. Naseer Ahmed, for ME. identity card, he affixed his signature in English D.W.3, Muhammad Siddique, claiming that he knew Ch. Naseer Ahmed, who was suffering from paralysis since 1985 and could not sign. D.W.4 is Dr. Muhammad Rafique, who has deposed that Ch. Naseer Ahmed, was under his treatment from 1985 till 1991 and that he was not in a position to sign. He also adduced in evidence Exh.D.2, certificate issued by him about the ailment of Ch. Naseer Ahmed D.W.5, is Zulfiqar Ali, one of the defendant, who corroborated the defence of the defendants. Besides, the defendants placed on record, Exh.D.3 to Exh.D.14, these include the copy of the form submitted by Ch. Naseer Ahmed, to the registration office. Record of the post office; some previous litigation between Ch. Naseer Ahmed and Mst. Shamim Akhtar, respondent No.2. After conclusion of the trial learned Civil Judge, while deciding Issue No.1, against the respondent and Issues Nos.5, 6, and 7, in favour of the respondent No.1 allowed the suit. Hence this appeal.

4. Learned counsel for the appellants contends that the Court below has not taken into consideration the defence of the appellants that Ch. Naseer Ahmed, was suffering from paralysis and therefore, after 1985, could not affix his signature; till his death, which occurred in the year 1991. It is also stated that the Court below for erroneous reason has disbelieved the statement of D.W.4, who was the doctor and has proved on the record Exh.D.4, medical certificate to the effect that Ch. Naseer Ahmed, was under his treatment and had suffered paralysis attack and was unable to sign after 1985.

5. We have heard learned counsel for the parties. From the statement of P.W.2 to P.W.4, who are the scribe and marginal witnesses of the agreement Exh. P.1, it stands fully established that document has been executed by Ch. Naseer Ahmed. Now in order to disprove the above fact, the appellants had examined D.W.1, who in his cross‑examination has conceded that Ch. Naseer Ahmed, when opened account in the post office, could affix his signature, but on his (the witness) asking he thumb‑marked the account opening form. This witness was further confronted with the Exh.P.9, a receipt dated 13‑11‑1981 which is scribed by him and was executed by Ch. Naseer Ahmed, while affixing his signature in the Urdu. The witness has admitted and thus proved the receipt. From his statement, alone, it is sufficiently established that Ch. Naseer Ahmed could sign even after suffering from paralysis attack and had accordingly singed Exh.P.9. in Urdu. As regards D.W.4, there is no date on the certificate Exh.D.4, and as conceded by D.W.4, in his statement, this certificate was prepared after the death of Ch Naseer Ahmed. We are not convinced it D.W.4, has proved that Ch. Naseer Ahmed, was under his treatment and was unable to affix his signature, after suffering paralysis attack, particularly, in view of the admission made by D. W.1, who has conceded that Ch. Naseer Ahmed, could sign and had actually singed Exh.P.9. To contradict the above, there is no significant evidence on behalf of the appellants to prove their defence that Ch. Naseer Ahmed was totally unable to affix his signature since 1985. The appellants had pleaded fraud in the defence and claimed that Exh.P.1 is the product of fraud. Neither in the plaint nor in the statement of D.W.5, the particulars of fraud are specified or proved. In the light of what has been discussed above, we find that plaintiff/respondent No.1 had duly proved the execution of the agreement to sell Exh.P.1 and also payment of advance consideration Rs.2,75,000 to the deceased Ch. Naseer Ahmed. The finding of the Court below in this behalf does not suffer from any misreading of , non‑reading of evidence, accordingly, this appeal has no force and the same is hereby dismissed with no order as to Costs. H.B.T./N‑232/L Appeal dismissed.