2002 PLP 965 (MLD)

Appreciation of evidence

Appreciation of evidence in civil cases was to be based on rule of preponderance of evidence. Mst. Rehmat Bibi v. Fazal Muhammad and others 1987 SCMR 843 and Mst. Sarwari Begum. v. Jabbar alias Lalia PLD 1965 Lah. 32 ref. Irfan Masood Sheikh for Appellants. Ch. Zafar Iqbal for Respondents. Date of hearing: 12th October, 2001 This regular second appeal arises out from the judgment and decree, dated 23-11-1978 whereby allowing the appeal of the respondent a decree for specific performance of the contract was awarded in his favour and the judgment/decree of the trial Court was reversed.

2. Brief facts of the case are that the respondent filed a suit for specific performance of an agreement dated 18-4-1971 in respect of a residential house situated in Mohallah Gujran, Tehsil Emanabad, District Gujranwala. The case set up by the respondent in his suit was that the petitioner had entered into an agreement to sell on 18-4-1971 and agreed to sell his residential house for a consideration of Rs.4,

000. According to the respondent a sum of Rs.1,500 was paid as advance and remaining consideration was required to be paid at the tune of execution of the final sale-deed. Further, it was averred by the respondent that a notice was sent to the defendant-petitioner which was not responded by him and thus, he filed a suit for specific performance of the contract. The suit was resisted by the defendant-petitioner inter alia on the ground that the agreement to sell was a fabricated document. According to the defendant-petitioner he never executed an agreement to sell. The brother of the plaintiff-respondent who was Patwari obtained thumb-impression of defendant-petitioner for preparing an application to regularize the allotment of land by the Settlement Department and later it transpired that the respondent fabricated the said documents. From the divergent pleadings of the parties issues were settled and both the parties led their evidence. After completing the hearing, the trial Court dismissed the suit of the respondent vide its judgment and decree dated 9-6-1975. The respondent filed an appeal and the District Judge, Gujranwala allowing the appeal for the respondent decreed the suit in his favour.

3. The learned counsel appearing for the petitioner stated that the First Appellate Court has misread the evidence on record. He referred to various parts from the deposition of P. W. 1, P. W.2 and P. W.3. Further, it was argued by the learned counsel that wrong conclusions and inferences were drawn from the evidence on record, therefore, the judgment of the Appellate Court merits reversal. He referred to the case titled Mst. Rehmat Bibi v. Fazal Muhammad and others reported as 1987 SCMR 843 and case titled Mst. Sarwari Begum v. Jabbar alias Lolia reported as PLD 1965 Lahore

32. The counsel for the respondent supported the judgment of the First Appellate Court.

4. I have considered the arguments of the counsel for the parties acid perused the record. The plaintiff/respondent to prove his case produced P.W.1, P.W.2;, P.W.3 and himself appeared as P.W.4. Documentary evidence in the form of an agreement to sell Exh.P.1, postal receipts Exh.P.2, copy of notice Exh.P.3 and postal A.D. receipt Exh.P.4 were produced. Exh.P.1 which is claimed to be an agreement to sell, from the tenor of its contents is a receipt showing the payment of Rs.1,

500. It also contains covenant for sale of the house. For proper appreciation of this document, the original was seen and examined. It was observed that the document was written with different ink. The thumb-impression of the executant and signatures of the marginal witnesses were also with different ink. Two lines appear to have been added in the document. The start of the document is in the receipt form whereby the probability of deception cannot be overruled. The evidence in rebuttal produced by the petitioner comprised of Bashir Ahmad, D.W.1, Shamshad Ali D.W.2 and his own statement as D.W.3 is equally poised and weighty. The appreciation of evidence in civil cases is based on the rule of preponderance of evidence. In the instant case the respondent produced two marginal witnesses to prove Exh.P.1 and agreement to sell but as the document itself is not above suspicion, therefore, it could not be given effect to in the circumstances of the case. Even otherwise the relief of specific performance is an equitable relief and viewing the case from this angle the respondent is not found entitled to a residential house for a sum of Rs.4,

000. The scale in the equity tilt in favour of the petitioner rather than the respondent.

5. Keeping in view my observation mentioned hereinbefore, I hold that the conclusion and inferences drawn by the District Judge, Gujranwala were unwarranted. Less it contained logic and more these were conjectures. As such, the judgment of the First Appellate Court is bad in law. I accordingly, set aside the judgment and decree, dated 23-11-1978 of the First Appellate Court. Resultantly the suit of the respondent for specific performance is dismissed. H.B.T./N-164/L ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.