2011 YLR 2174 (PLP)

CH. MUHAMMAD TARIQ, J.

Since the subject-matter of the suit and parties of the suit are same, both the civil revisions shall be decided by one single judgment.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for specific performance of agreement dated 19-1-1993 in respect of land measuring 46 kanals situated in village Burj Agra, Tehsil Phalia, District Mandi Bahauddin for a total consideration of Rs.2,50,000.

3. According to the contents of the plaint, the respondent/defendant received the entire sale price of Rs.2,50,000 in cash in presence of witnesses who also acknowledge the receipt of money and executed a receipt Exh.P.3.

4. That the plaintiffs/petitioners also paid Rs.83,694, to the Agricultural Development Bank of Pakistan which was advanced to the defendant against the suit land but the defendant despite receipt of entire consideration price of suit-land refused to honour his commitment hence, this suit for the specific performance of agreement.

5. The defendant/respondent contested the suit by filing of written statement and also filed an independent suit for declaration/cancellation of document on the ground that Exli.P.2 the agreement to sell dated 19-1-1993 is a forged and fabricated document. The respondent had neither signed it nor received any money nor had executed the agreement to sell. Both the suits were consolidated and out of divergent pleadings of both the suits, following consolidated issues were framed: CONSOLIDATED ISSUES:-- (1) Whether the plaintiffs entered into agreement of sale dated 19-1-1993, with defendant.? OPP (2) Whether the plaintiffs have paid the entire sale price amounting Rs.2,50,000 to the defendant.? OPD (3) Whether the plaintiffs are entitled to decree for specific performance of agreement of sale dated 19-1-1993? OPD (4) Whether the agreement of sale dated 19-1-1993 is against law and facts, without consideration out come of fraud, collusiveness, inoperative qua the plaintiffs rights and is liable to be set aside.? OPD (5) Whether the co-plaintiff Ghulam Abbas is entitled to decree for declaration as prayed for.? OPD (5-A) Whether Ghulam Abbas should be devalued his suit titled Ghulam Abbas v. Anwar and others according to consideration amount mentioned in the impugned "Iqrar Nama" dated 19-1-1993 and pay the required court-fee.? OPD (5-B) Whether the plaintiff Ghulam Abbas has filed his suit as counter blast against the defendant Anwar etc., therefore, the defendants Anwar etc. are entitled to get special costs under section 35-A, C.P.C.? OPD. (6) Relief.

6. After recording the oral as well as documentary evidence of the parties, the suit for specific performance of agreement filed by the petitioners/plaintiffs was dismissed while the suit for declaration/ cancellation of agreement to sell Exh.P.2 filed by the respondent was decreed by the learned trial Court through a consolidated judgment and decree dated 20-11-2006.

7. Feeling aggrieved of the said consolidated judgment, the petitioners/ plaintiffs challenged the consolidated judgment and decree by filing an appeal before the Hon'ble High Court, Lahore through R.F.A. No.299 of 2000 but appeal was remitted back on 16-10-2000 observing that the pecuniary jurisdiction of learned District Judge has been enhanced. However, vide consolidated judgment and decree, the learned District Judge, Mandi Bahauddin dismissed both the appeals hence, these civil revisions.

8. Learned counsel for the petitioners contends that the impugned consolidated judgments and decrees passed by both the courts below are the result of misreading and non-reading of evidence. The petitioners produced Muhammad Sadiq as P.W.2 as marginal witness of agreement to sell but while dismissing the suit and the appeals, the courts below have not considered the statement of Muhammad Sadiq. He further contends that learned trial Court has sent specimen signatures of respondent along with Exh.P.2 and Exh.P.3 to the Forensic Science Laboratory and the report was submitted by the Director, Forensic Science Laboratory which report was not considered. Further contends that the petitioners have paid the entire consideration amount to the respondent and further that both the learned lower courts have ignored the report of local commission which fully established that the petitioners are in possession of suit-land, therefore, civil revision be allowed, impugned consolidated judgments and decrees passed by both the courts below be set aside, the suit of the petitioners for specific performance be decreed and suit of respondent for declaration and cancellation of document be dismissed.

9. On the other hand, the learned counsel for the respondent has opposed both these civil revisions and has contended that there is concurrent finding of fact against the petitioners. Further contends that the petitioners have failed to point out any illegality or irregularity in the consolidated impugned judgments and decrees, therefore, civil revisions be dismissed with special costs.

10. Arguments heard. Record perused.

11. Record reveals that statement of P.W.2 who is a marginal witness makes the entire case very clear. He states that agreement to sell was not executed in his presence but he signed it when it was produced before him, neither the transaction was finalized before him, nor payment was made in front of him. He further contends that he does not know as to Exh.P.3 was reduced in writing by whom. The second marginal witness Muhammad Azam was not produced. So the petitioners/plaintiffs failed to prove the execution of agreement Exh.P.2 as provided under Qanun-e-Shahadat Order, 1984.

12. Nazar Muhammad P.W. during his examination at one place states that plaintiffs paid Rs.70,000 to the defendant/ respondent. The plaintiffs/petitioners obtained this money when he sold his buffalo. Thereafter he states that the plaintiffs/petitioners sold his tractor and managed money. At one place, he states that plaintiffs obtained money when he sold the jewellery for the payment to the respondent/defendant. Exh.P.3 is the receipt but it does not contain the detail of transaction.

13. Record further shows that the plaintiffs/petitioners deposited money in the Bank on 22-2-1992 while the agreement to sell was executed on 19-1-1993 so the amount deposited on 22-2-1992 in the bank has no nexus with the agreement to sell.

14. The contention of the learned counsel for the petitioners/plaintiffs that report of local commission was not discussed by the learned courts below is misconceived because the record reveals that neither the report of local commission was tendered in evidence nor the Local Commissioner was summoned as a witness.

15. As discussed above, there is concurrent findings of fact against the petitioners/plaintiffs, the learned counsel for the petitioners failed to point out any question of law, irregularity, illegality or jurisdictional error in the impugned consolidated judgments and decrees. Resultantly, both the civil revisions fail, same are dismissed. M.U.Y./M-329/L Petition dismissed.