1994 PLP 2334 (MLD)

SARDAR MUHAMMAD RAZA, J.

Sher Baz Khan son of Teladar Khan of Sokari Zabta Khan, Tehsil and District Bannu brought a suit for specific performance of contract against Aslam Khan son of Haji Piao Jan of Darpa Khel Miran Shah North Waziristan Agency (defendant No. l), to the effect that a property measuring 10 Kanals 15 Marlas in Mouza Sokari Jabbar was agreed to be sold by Aslam Khan in favour of the plaintiff vide agreement deed dated 9-2-1986 (Exh.P.W.I/2) for a sum of Rs.3,22,500 out of which a sum of Rs.200,000 Were received by the owner and Rs.1,22,500 was to be paid at the time of the transfer of property but in violation of the agreement the vendor refused to complete the contract and instead sold the land in favour of Syed Kamal Shah son of Gul Paidar Shah of Sokari Zabta Khan (defendant No.2).

2. Both the defendants Aslam Khan and Syed Kamal Shah separately contested the suit. Syed Kamal Shah claimed that the suit property originally belonged to Haji Piao Jan the predecessor of Aslam Khan (defendant No.1) whose legal heirs were four sons. including (defendant No. l) and two daughters. That (defendant No.2) had purchased the disputed 10 Kanals 15 Marlas as well as another 5 Kanals 3 Marlas from all the legal heirs of Haji Piao Jan as well as his two brothers through different mutations on payment of rupees fourteen lacs. That he was in possession of the suit land which factum is admitted by the vendor Aslam Khan. After framing of the issues, and recording of evidence on either side learned Senior Civil Judge, Bannu vide his Judgment, dated 15-7-1990 decreed the suit and directed the specific performance of contract in favour of the plaintiff on payment of Rs.1,22,500 within seven days. Aggrieved of such findings, Syed Kamal Shah has filed the instant Regular First Appeal.

3. During the pendency of the appeal the other legal heirs of Haji Piao Jan applied for their impleadment which, without being taken for granted, was allowed on 18-4-1994. Such legal heirs endorsed the transaction m favour of the present appellant and further claimed that the case be remanded for retrial after their impleadment before the trial Court because their shares had stood decreed in favour of Sher Baz Khan despite the fact that they were neither party to the suit nor Aslam Khan was their special or general attorney.

4. With such impleadment the learned counsel for the respondents raised an objection that the appeal had become time-barred on account of fresh parties having been impleaded at a very late stage. In support PLD .1982 SC 167 was relied upon. Having gone through this preliminary point and also through the case-law, we are of the opinion that the instant one is not an impleadment whereby the present appellant should be condemned. It was at the instance of the new party and under the direction of the Court without conceding to any of their rights. The appellant took no steps towards such impleadment and hence his appeal shall be considered as having been instituted on the original date. The ruling produced above is given totally under different circumstances and was an answer to the question as to what would be the relevant date for the purpose of limitation when application for impleadment of new defendant is given on one date and the desired impleadment is ordered by the Court on the other. It was held that the limitation would be reckoned with reference to the date of filing of application. The preliminary objection is turned down.

5. Coming to the merits of the case, one should revert to the agreement deed, dated 9-2-1986 (Exh.P.W.I/2) on file, the very execution whereof is totally denied by Aslam Khan the defendant. This deed is scribed by Mir Baz Petition-Writer who is examined by the plaintiff as (P.W.2). He categorically, while pointing towards Aslam Khan defendant, has stated that this was not the man who had come to him for getting the document executed. This is the first blow which is given to the plaintiff by his own witness. Sham Tiaz Khan (p.W.6) is the marginal witness to the deed, according to him Aslam Khan had signed as well as thumb-impressed the deed. This overdoing seems to be quite meaningful. The other witness Bahadur Gul is the maternal-uncle of the plaintiff Sher Baz Khan who has , indicated that they had gone to the Petition.-Writer, all together when the vendor also had possessed National Identity Card. No reference of the number of National Identity Card is given on the deed which has further rendered it doubtful. Malik Saifullah, Advocate is the Notary Public who was examined as (P.W.4) and before whom the affidavit was sworn. Another intriguing factor is that before this Notary Public the identification of the vendor is done by the vendee who is the actual beneficiary and hence is not an independent person qua the transaction concerned. One marginal witness alleges that agreement was entered into in the Tea shop of one Naib Khan while the other says that it was in the compound of the Serai of Khan Thekedar. The witnesses themselves have disproved the document.

6. The circumstances also go against the respondent-plaintiff. He has paid a huge amount of rupees two lacs and least bothered to obtain a receipt for such payment. No precaution was either taken to make such payment through cheque. The indifference of the vendee about the amount involved is quite meaningful when one observes that he did not claim the amount in the alternative which, in cases of genuine payment, is never missed. No rate of property is mentioned in' the deed and the total amount seems to be too small in comparison to the actual market value. Every thumb-impression is quite distinct and sharp except the one in dispute.

7. From the body of the agreement deed (EXh.P.W.I/2) it appears that each and every ingredient of sale was complete and the possession had totally been delivered to the vendee while such possession emphatically is said to be with Syed Kamal Shah, by Iftikhar Ahmed Durrani, Advocate the local commissioner who had physically observed it on the spot.

8. It is an admitted fact that the property purchased by respondent plaintiff was the ancestral property of Aslam Khan being originally owned by Haji Piao Jan, his father, who was survived by four sons and two daughters, out of which the share of the vendor Aslam Khan was only to the extent of 2/10. Practically he has sold the entire property in complete violation of the Revenue Record 'Jamabandi' 81-82 (Exh.P.W.I/1) according to which his share comes down to two Kanals 1-1/2 Marlas. He has never produced any power of attorney on behalf of the remaining legal heirs of Haji Piao Jan nor is he mentioned anywhere in the deed itself to be acting on behalf of others as special or general attorney. It is beyond contemplation as to how on earth could he transfer the property of his co-sharer on behalf of whom he possesses no authority. It is in evidence that Patwari Halqa was also with them but in spite of it a fake deed was executed to grab the entire property even of the remaining co-sharers. In this behalf the observation of the trial Court that as the other legal heirs have not come to the Court for impleadment, therefore, such omission is to be deemed as concession in favour of the vendee, is a view altogether alien to the principles of civil law. A person who is not a party to the suit and would not be bound by the ultimate decree if granted, is not duty bound to come up for impleadment as a result of some knowledge which he might have attained outside the Court. The non-appearance of such legal heirs before the trial Court cannot be taken against them particularly when they are not summoned by the Court to appear. The adverse inference cannot be taken against person who is not a party to a suit.

9. Last but not the least is the very statement of Sher Baz Khan plaintiff who appeared as (P.W.5) and who unequivocally stated in the cross-examination that he had purchased only the share of Aslam Khan in the joint property. This completely falsifies his case because in fact he has made an attempt on 10 Kanals 15 Marlas which is not the share of Aslam Khan. This further proves the document to be fake in totality.

10. Learned counsel for Sher Baz Khan respondent has tried to defend the statement of one marginal witness who said that the agreement was entered into in the Tea-shop of one Naib Khan. The learned counsel explained that this Naib Khan was a tenant in the ' Serai. The oral explanation is for the first time coming in the appeal and is not borne by record. The second argument of the learned counsel is equally unfounded when he says that under section 18 of the Specific Relief Act, Aslam Khan being attorney of his brothers and sisters was bound to obtain concurrence of his principals. We are afraid if this principle is at all attracted in the circumstances when Aslam Khan is nowhere proved to be the special or general attorney of his brothers and sisters. This is even not mentioned in the body of the deed (Exh.P.W.1/2; and hence Aslam Khan cannot be bound down under section 18 of the Specific Relief Act at all.

11. The upshot of the reasoning above is that the deed dated 9-2-1986 (Exh.P.W.l/2) is a forged document, the terms whereof cannot be specifically enforced. As we hold the document to be fake one, therefore, no remand of the case is required, as prayed for by the other legal heirs of Haji Piao Jan. The appeal is accepted, the impugned judgment and decree, dated 15-7-1990 is set aside and the original suit of Sher Baz Khan is hereby dismissed. The plaintiff/respondent Sher Baz Khan has asked as to what would happen to his sum of Rs.1,22,500 which he had deposited under the direction of the Court. He was directed to resort to the trial Court if desired. Parties are left to bear their own costs. A.A./1602/P Appeal accepted.