1997 PLP 552 (SCMR)

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16. For these reasons, we would averse the Wings of the learned Civil Judge on Issue No.1 and decide that issue in the appellant's favour. No reason was adduced against the gram of the relief of specific performance. We, therefore, accept the appeal, set aside the judgment and decree of the learned Civil Judge dated 2‑7‑1989 and decree the suit subject to the condition that the appellant shall deposit Rs.2,06,000 in the trial Court within three months of this judgment. If he fails to so deposit that sum, his suit shall stand dismissed with costs throughout; otherwise the parties shall bear their own costs."

2. The brief facts are that the respondent brought aforesaid suit against Rehmat Ali, predecessor‑in‑interest of the present appellants, hereinafter referred to as the deceased, for specific performance of a sale agreement in respect of the suit agricultural land measuring 200 Kanals; 2 Marlas and a residential Ahata No. 12 measuring 1 Kanal, 12 Marlas situated in Chak No.5/IAL, TeMil and District Okara, on the basis of averment that the deceased agreed to sell the suit land, in respect of which he had on various dates received a sum of Rs.1,00,000, which was acknowledged through a receipt dated 24‑7‑1976. It was further averred that on 13‑3‑1983, the deceased had executed a sale agreement (Exh.P/1), wherein the sale price was agreed ..to be Rs.5,00,

000. It was acknowledged that the deceased had received Rs.2,94,

000. It was also agreed that the remaining sale price amounting to Rs.2,06,000 was to be paid by the respondent by 16‑5‑1985, when the above sale transaction would be completed. It was averred in the body of the plaint that the respondent before 16‑5‑1985 approached the deceased and offered him the aforesaid sum of Rs.2,06,000 with the request to complete the sale transaction, which he failed to do. Thus, he filed the above suit.

3. The aforementioned suit was resisted by the deceased inasmuch as a written statement was filed, in which it was admitted that there had been a sale agreement before 1976 but it was averred that the same was cancelled by mutual agreement and the money received from the respondent had been adjusted towards the lease money. However, no particulars of the period for which the lease money was adjusted, were given in the written statement.

4. The learned Civil Judge, on the basis of pleadings of the parties, framed four Issues. The respondent, in support of the claim in suit, examined Nazir Ahmed (P.W.1) and Zulfiqar (P.W.2), who were witnesses to the above Exh.P/1. Both were related to the respondent, inasmuch as Nazir Ahmed was his brother‑in‑law and his son was also married to his daughter. Whereas, Zulfiqar was son‑in‑law of the respondent.. He also examined Muhammad Ramzan (P.W.3) and Wali Muhammad (P.W. 4), who deposed that they had accompanied the respondent to the place of the deceased who had promised to complete the sale transaction. The respondent examined himself as P.W.5. Against the above evidence of the respondent/plaintiff, the deceased examined D.W.1, Muhammad Ashraf Malik, S.P. Technical Services (Special Branch Punjab), a Handwriting Expert to prove the factum that Exh. P/1 did not contain his signature. He produced his report (Exh.D/1) on the disputed signatures Exh.P‑.1/A and Exh.P‑1/B. He also examined himself as D.W.2. The matter was again referred to the Handwriting Expert for clarification. It is not necessary, to dilate upon this aspect. .

5. The learned Civil Judge, after hearing the learned counsel for the parties, by his aforesaid judgment/decree dated 2‑7‑1989, held that the respondent failed to prove the sale agreement (Exh.P/1) and that according to the record of rights for the year 1983‑84 (Exhs.P/2 and P/3), the respondent was shown as a lessee. He, therefore, dismissed the suit through the above judgment/decree. Against the aforesaid judgment/decree, the respondent filed aforementioned R.F.A., which was allowed by a Division Bench of the Lahore High Court in the above terms. During the pendency of the above appeal, the deceased expired and, therefore, the present appellants filed the above appeal.

6. In support of the above appeal, Mr. Aamer Raza A. Khan, learned Senior Advocate Supreme Court appearing for the appellants, has vehemently contended that the finding of the learned trial Court that the respondent failed to prove the sale agreement (Exh.P/1) was founded on the above Handwriting Expert's report (Exh.D/1), comparison of the disputed signature with the admitted signature by the Trial Court, appraisal of evidence and the factum that the receipt dated 24‑7‑1976 marked A for the above sum of Rs.1,00,000 neither mentioned the price of the land nor it provided the date of completion of the sale. His further submission was that the conclusion approved at by the learned trial Court was supported by the record of rights (Exhs.P/2 and P/3).

7. The above contentions seem to be devoid of any force in view of the following admission on the part of the deceased in his cross‑examination:‑‑

8. From the above‑quoted extract from the deceased's statement in the cross‑examination, it is evident that he was unable to give any plausible reason as to why the respondent would pay advance amount of Rs.2,94,000 towards the lease money, which, according to him, was Rs.4,500 per square; whereas, according to Exh.P/2, (t was Rs.4,500 per acre. Be that as it may, neither he was able to give the period for which the above amount was adjusted towards the lease money, nor he produced any document indicating that there was any arrangement for the cancellation of the sale agreement and the adjustment of Rs.2,94,000 towards the lease money. Exh.P/2 relates to agricultural land, whereas Exh.P/3 relates to above 1 Kanal, 12 Marlas of land, on which the house is situated. The above documents were not material as till the completion of the sale transaction, the record of rights would not reflect the sale transaction. Since it was the case of the respondent that the above sale transaction was not completed by the deceased on account of his denial, no mutation could have been effected in his favour in the Revenue Record.

9. Even if we were to ignore Exh:P/1 i.e. the sale agreement, on the ground that the respondent failed to prove the deceased's signature on it, it e would not affect the finding recorded by the learned Judges of the Division Bench as the factum of having received the above sum of Rs.2,94,000 towards the sale price having been proved by the respondent, burden was shifted on the deceased to prove that it was not so or that if it was so, the same was modified by mutual agreement and was to be utilized towards the lease money. The above burden the deceased failed to discharge.

10. In view of the preponderance of evidence on record in favour of the finding that factually the above sum of Rs.2,94,000 was paid towards the sale price and not towards the lease money and in absence of any evidence brought on record by the deceased to show that Rs.5,00,000 could not have been a reasonable price for the suit land and the house, the learned Judges of the Division Bench were right in reversing the judgment/decree of the learned Trial Court, which was founded inter alia on the above Exhs.P/2 and P/3 which have no nexus with the question of sale for the aforesaid reason.

11. The upshot of the above discussion is that the above appeal has no merits, it is dismissed. However, there will be no order as to costs. . A.A./1‑222/S Appeal dismissed.