2002 PLP 3508 (YLR)

(1) Whether the defendant No. 3 has been unnecessarily impleaded has party to the suit? OPD (2) Whether the plaintiffs have no cause of action, and locus standi to file this suit? OPD (3) Whether the defendants agreed to sell the suit‑land vide agreement to sell dated 3‑2‑1990? OPP (4) If Issue No. 3 is proved in positive whether the plaintiffs are entitled for specific performance of agreement? OPP (5) Whether the document agreement to sell dated 3‑2‑1990 has been proved by the plaintiffs of the suit for specific performance of the Government by use of deception and misrepresentation and the agreement to sell is not binding upon the rights of the plaintiffs of the suit for declaration? OPD (6) Relief.

3. The learned trial Court after having recorded the evidence of the parties came to the conclusion that the suit of Muhammad Yousaf etc. was liable to dismissal and dismissed it accordingly and decreed the suit of Barkat Ali etc. Two regular first appeals were filed against the said consolidated judgment and decree dated 23‑12‑1992, in the matter of specific performance. Since the value of the suit for the purposes of jurisdiction was Rs.3,00,000, regular first appeal No.4 of 1993 was filed in this Court directly. As against the decree passed in the suit of the respondents, the first appeal was filed in the Court of learned Additional District Judge, Chunian, District Kasur. Since both the matters were decided by means of a common judgment, the said regular first appeal was also brought on the record of this Court and registered as Regular First Appeal No.87 of 1994.

4. The crucial issues, which have been agitated by the learned counsel for the appellants, are Issues Nos. 3, 4 and Issues Nos. 3 and 4 being interdependent issues are taken up firstly. The question for disposal of these issues are whether the defendants Barkat Ali etc. did enter into an agreement to sell the suit property through Exh.P.1 executed on 3‑2‑1990. We are convinced that the findings of the trial Court are based on solid reasons keeping in view the history of litigation in between the parties that the suit property was allegedly purchased by the predecessor‑in‑interest of the plaintiffs through a sale‑deed dated 12‑2‑1969 upon which the defendants Barkat Ali etc. has filed a suit for, possession through pre‑emption which continued for a period of 19 years i.e. w.e.f 7‑2‑1970 to 26‑6‑1989 and the result in all the proceedings with regard to the said pre emption suit were against Muhammad Yousaf etc. and suddenly what were the events which made them to sit together and have a reconciliation and the defendants Barkat Ali etc. to agree to proposition to make their decree ineffective which was obtained after litigation of 19 years by v ay of an agreement to sell Exh. P.1 dated 3‑2‑1990. This agreement was also not executed by Sondhay Khan. The perusal of this agreement also reveals that mother agreement was to be executed, even otherwise had Barkat Ali etc. enter, d into to the above said agreement to sell Exh. P.1 voluntarily with their own free consent and will then what made them to file a suit for cancellation of this agreement Through a civil suit filed on 24‑4‑1990. All these circumstances render it impossible that Barkat Ali etc. did relinquish their rights to the land accrue in their favour by way of disposal of pre‑emption suit in their favour and as such the said agreement to sell is not proved on record and the learned trial Court rightly decided Issues Nos. 3 and 4 in favour of Barkat Ali etc. and we confirm these findings. In view of the findings on Issues Nos. 3 and 4 wherein we have come to the conclusion that the agreement to sell was never executed with free consent and will of Barkat Ali etc. and as such it was liable to be cancelled, therefore, with regard to Issue No. 5 the learned trial Court has rightly held it to be so and the Bindings of the trial Court are confirmed by us. Resultantly the trial Court rightly, dismissed the suit of specific performance filed by Muhammad Yousaf etc. the appellants in Regular First Appeal No. 4 of 1993 and rightly decreed the suit Barkat Ali etc. for cancellation of the said agreement which made the appellants Muhammad Yousaf etc. to file Regular First Appeal No.87 of 1994.

5. In this eventuality both the appeals are without any substance of force and we dismiss both the appeals accordingly. While agreeing with the conclusion at by my learned brother Parvez Ahmad, J. I want to add that a case of misreading and non‑reading of evidence on the record does not stand made out. The agreement sought to be specifically enforced is on record as Exh. P.1. Now it is an admitted position that the pre‑emption decree was passed in favour of three persons namely Barkat Ali, Ibrahim sons of Bulandey Khan and Sondhey Khan son of Fateh Muhammad and the said persons were the original defendants in the suit. The agreement Exh. P.1 purports to have been executed only by Barkat Ali and Ibrahim. There is no representation that the said persons are authorised to enter into the agreement on behalf of said Sondhey Khan. The agreement refers to a compromise effected by the respectables of the area with regard to the proceedings of the said pre‑emption suit. The agreement narrates that the value of the rights and the expenses on the litigation have been worked out at Rs.3,00,000 and that the share of the executant is Rs.2,00,000, which has been received in cash. The agreement then proceeds that Sondhey Khan is not present as he has given up his residence in the village and has gone to Lahore and that on their own responsibility the executants have received Rs.50,000 on behalf of Sondhey Khan, which will be paid by them to Sondhey Khan and will get an agreement executed in favour of the `defendants' and that the defendants shall pay the balance to Sondhey Khan.

2. Even in the plaint there is no allegation that Sondhey Khan did agree, to the said compromise or that he executed any agreement. Thus so far as Sondhey Khan is concerned the agreement on the face of it is not enforceable against him and consequently against his share in the suit land. Now to prove the agreement, Exh. P.1, Muhammad Talib was produced as P.W.1 who produced the copy of Page No.113 of Stamp Vendor's register. Nothing turns on the statement of this witness as he did not state that the stamp was purchased by the said executants. Muhammad Yousaf, appellant, appeared as P.W. 1/A. According to his statement the agreement Exh. P.1 was written by Muhammad Anwar, Stamp Vendor, in the presence of Barkat and Ibrahim. Barkat received Rs.1,00,000 while Ibrahim also received an equal amount while Barkat received Rs.50,000 on behalf of Sondhey Khan. The agreement was read over and Barkat and Ibrahim affixed their thumb impressions on the same. In his cross examination, he states that the amount was paid after the stamp was written over and that thumb‑impressions were affixed after the receipt of the amount and this process was completed within two hours; that the fee of the scribe was paid equally by Barkat and Yousaf. To similar effect is the statement of Hakin Ali P.W.2, and Ghulam Muhammad, P.W.3. Now the said Muhammad Anwar has been produced as P.W.5. This witness states that he had written the document and had read over the same to the parties and to the witnesses but at this stage a scuffle started and no thumb‑impressions were put by the parties in his presence. On the other hand, the witness states that the document was taken away by the parties telling him that the thumb impressions will be affixed when the dispute that had arisen will be resolved. He further explained that the document was taken away by the persons in whose favour it was written. In his cross‑examination he states that no amount was paid in his presence. Now this witness who had been put in the witness‑box by the appellants themselves completely belies the statements made by Muhammad Yousaf, appellant, and the marginal witnesses to the document. The learned trial Court, therefore, has not committed any error while holding that the execution of the document Exh.P.1 has not been proved. Apart from this, as observed by my learned brother, the learned trial Court has rightly taken into consideration all the attending circumstances of the case. According to the record, the predecessors of the appellants had purchased the land vide a sale‑deed dated 12‑2‑1969. The pre emption suit was filed in the year 1970 and ultimately the matter was decided on 26‑6‑1989. It is rather unbelievable that after fighting for almost two decades the respondents would have agreed to transfer the land to the appellants. Another significant aspect of the matter is that the mutation on the basis of the decree passed in favour of the respondents was attested on 31‑12‑1989. This being so, that suit having been decided at all stages, the decree execution and satisfied, there was no occasion for the appellants to have paid Rs.2,50,000 to the respondents for their agreeing to treat the decree as non‑existent. There was no apparent hurdle in the way of the appellants to get the sale‑deed or mutation entered and attested in their favour on payment of agreed price to the respondents, had there been a genuine transaction. With these observations, I agree with the judgment recorded by my learned brother. Regular First Appeal No. 4 of 1993 and Regular First Appeal No.87 of 1994 are dismissed. However, since the respondents have not turned up to contest these regular first appeals, the parties are left to bear their own costs. H.B.T./M‑1351/L Appeal dismissed.