1991 PLP 1560 (MLD)

It is contended that the petitioner gave notice to Muhammad Hanif Khan respondent on 10-4-1979 requiring him to complete tile sale-deed by getting the same registered in his favour on receipt of the remaining amount of Rs.20,000 but he denied the execution of the agreement to sell. On 30-4-1979 Muhammad Hanif Khan filed an ejectment petition against the petitioner on the ground of default in the payment of rent since October, 1977. On the other hand, the petitioner filed a suit for specific performance of the agreement to sell dated 12-10-1978. The respondent contested it. On the pleadings of the parties the following issues were framed: (1) Whether the present suit is barred by res judicata? OPD. (2) Whether the suit is not correctly valued for the purposes of court-fee and jurisdiction? OPD. (3) Whether the property is not correctly described in agreement to sell? If so what are its effects? OPD. (4) Whether the suit is bad for multifariousness of relief? OPD. (5) Whether the plaint and the documents are not signed by the plaintiff? If so what are its effects? OPD. (6) Whether the part payment has been made by the plaintiff? OPP. (7) Whether the plaintiff is entitled to specific performance of the agreement to sell? OPP. (8) Whether the agreement to sell is not executed by the defendant and the same is without consideration? OPD. (9) Relief.

2. The petitioner produced Faizi Pirzada P.W., scribe of the agreement to sell, Asghar Ali, marginal witness to the agreement to sell Exh. P.1 and his attorney Muhammad Akram P.W.3. He himself did not appear in the witness-box. In rebuttal, the respondent examined Basharat Ali D.W.1, clerk of the Excise and Taxation Department, Lahore. He (Muhammad Hanif) himself appeared as D.W 2 and Zaka A. Malik, Handwriting Export as D.W.3. In addition to the above, both parties produced documentary evidence in support of their respective claims.

3. Learned trial Court decided issues Nos.6, 7 and 8 in favour of the petitioner and decreed the suit in his favour on 30-6-1986. Feeling aggrieved Muhammad Hanif Khan respondent preferred an appeal which was accepted by the learned Addl. District Judge, Lahore on 4-7-1988 and in consequence he reversed the finding of the learned Civil Court on issues Nos.6, 7 and 8 and dismissed the suit 'of Muhammad Hafeez. The learned Addl. District Judge referred to-the evidence of Faizi Pirzada P.W.1, the scribe of agreement to sell Exh. P.I wherein he had stated that he did not personally know Muhammad Hanif Khan and could not identify him and to state as to whether he was present in the Court or not at the time of recording his statement. According to him Muhammad Hanif Khan was identified by one Muhammad Siddique but Muhammad Siddique was not a witness to the agreement Exh.P.1. The learned Addl. District Judge took a strong note of the non-examination of Muhammad Siddique by the petitioner in support of his case. He also did not consider the evidence of Asghar Ali P.W 2, the marginal witness as helpful to the petitioner, inasmuch as he had deposed that Muhammad Hanif had not signed in his presence the document Exh.P.1. The learned Addl. District Judge, observed that the statement mark6d `B' of Muhammad Siddique son of Ilam Din made by him in the Court of Rent Controller could not be read as evidence in the civil suit without proof of the fact that secondary evidence was admissible in the circumstances of the case. He observed that since it was an important matter concerning the rights of the parties the respondent was entitled to cross-examine him at length and as such the statement made by him before the Rent Controller could not be used against him. The learned Addl. District Judge further observed that from the statement of Zaka A. Malik, Handwriting Expert D.W.3 it stood established that the signatures on document Exh.P.1 were not of the respondent. The learned Addl. District Judge himself compared the signatures on the document Exh. P.1 with the extract of register produced by Faizi Prizada P.W.1 and observed that both were altogether different to style and pattern. For the above reasons he reversed the findings on issues Nos.6, 7 and 8 of the Civil Court and dismissed the suit. Hence this revision.

4. It is contended that there has been a gross misreading of evidence by the learned Addl. District Judge, that he illegally excluded the evidence of Muhammad Saddique made by him in the ejectment proceedings between the parties, that he acted illegally in basing his decision on the Findings of the learned District Judge in the ejectment proceedings, that he failed to consider the circumstances under which the presence of Asghar Ali was procured by the petitioner, that he could not deny his signatures on the agreement to sell, that a heavy onus lay on the respondent to disprove the execution of agreement to sell and mere denial on his part was not sufficient to discharge that burden, that the learned Civil Court had given cogent reasons for discarding the report of the Handwriting Expert which were completely ignored by the learned Additional District Judge, that unnecessary importance was attached to the statement of Faizi Pirzada P.W.1, scribe of the agreement to sell expressing his inability to identify the respondent.

5. Learned counsel for the respondent states that the forged nature of agreement to sell dated 12-10-1978 was duly challenged by his client in the eviction proceedings and as such he was not required by law to file a separate suit for its cancellation.

6. Both in the ejectment proceedings as well as in the Civil Court the petitioner failed to establish the existence of any sale agreement and he took contradictory stand in the pleadings and evidence about his possession over the property. The material point in the case was the execution or otherwise of the agreement to sell EXh.P.1. It was asserted by the petitioner and denied by the respondent. In this view of the matter, it was for the petitioner to prove it. The petitioner examined Faizi Prizada P.W.1, its scribe, Asghar Ali P.W.2, marginal witness and Muhammad Akram his attorney P.W.3. As already stated above Faizi Pirzada P.W.1 stated in clear terms that he did not know the respondent and was not, therefore, in a position to identify him. Ashgar Ali P.W. 2 did not support the petitioner inasmuch as he stated that the agreement was not executed in his presence nor did Muhammad Hanif Khan sign in his presence. Muhammad Akram, attorney P.W.3 stated that he himself was not present at the time of execution of the agreement to sell. Zaka A. Malik D.W. 3 Handwriting Expert stated that the signatures on agreement to sell Exh. P.1 were not that of Muhammad Hanif respondent. The petitioner did not himself appear in the witness-box to prove the execution of agreement to sell. This raises a strong presumption against the truthfulness of his assertion. For the above reasons the learned Addl. District Judge had rightly observed that the petitioner had failed to prove the execution of agreement Exh. P.1.

7. It was rightly observed by the learned Addl. District Judge that the ' statement marked `B' of Muhammad Siddique son of Ilam Din made by him E before the Rent Controller could not be read in evidence in the civil suit without proof of the fact that secondary evidence was admissible in the circumstances of the case. Since subject-matter of both proceedings was different the respondent might not have considered it necessary to cross-examine him at length about the execution of document Exh. P.1. Muhammad Akib Pali v. Madad Ali and 2 others PLD 1972 Kar. 433 may be cited in this behalf where it was observed that record of one proceeding's is not to be treated as a part of the record of another proceeding. The record of each proceeding should be self-contained and complete. The practice of calling the records of other proceedings and treating them as a part of the record of another case is objectionable from more points of view that one. Firstly, there is no warrant for so using the record under the Evidence Act and; secondly, the record of a case in which another record is used remains incomplete and creates difficulties for future references. Since Muhammad Siddique son of Ilam Din was alive the petitioner should have produced him to prove the execution of agreement to sell Exh. P.1. There are material contradictions in the evidence of Faizi Pirzada P.W.1 and the other witnesses proved by the petitioner to prove the execution of agreement to sell Exh. P.1.

8. For the foregoing reasons the learned Addl. District Judge had rightly come to the conclusion that the execution of the document Exh.P.l was not proved and in consequence reversed the findings on issues Nos.6, 7 and 8 arrived at by the learned Civil Court. His findings are based on correct appreciation of evidence and do not call for any interference in the absence of any material irregularity. Accordingly, the revision is dismissed with costs. A.A./M-2864/L Revision dismissed.