2016 PLP 1 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this appeal the judgment and decree dated 12.12.2001 passed by the Addl. District Judge, Rajanpur whereby appeal filed by the appellant was dismissed and the judgment and decree dated 22.2.2001 passed by the learned Civil Judge Rojhan whereby suit for specific performance filed by the plaintiff/respondent was decreed, have been challenged.

2. Brief facts of the case are that plaintiff-respondent on 8.5.1997 filed a suit for specific performance of agreement to sell dated 8.10.1995. The written statement was filed and suit was contested. Learned trial court framed the issues invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Learned tria1 court was pleased to decree the suit vide judgment and decree dated 22.2.2001. The appeal was preferred which was dismissed vide judgment and decree dated 12.12.2001. Hence, this second appeal.

3. Learned counsel for the appellant argues that plaintiff/respondent failed to prove an agreement to sell in accordance with law despite that the suit has been decreed, therefore, prays for acceptance of this appeal and setting-aside the judgment and Decree passed by the court below.

4. On the other hand, learned counsel for the respondent/plaintiff argued that five witnesses have been produced by the Plaintiff/respondent and the findings recorded by both the courts below are in accordance with the record and prays for dismissal of this appeal.

5. I have heard the learned counsel for the parties and gone through the record.

6. When confronted to the learned counsel for the respondent that whether the agreement to sell Ex.P1 is signed by the plaintiff-respondent. The answer is in the negative. According to the recital of the agreement the consideration amount is Rs.180000/- whereas at the time of alleged agreement an amount of Rs. 106000/- has been mentioned to have been received by the defendants/appellants whereas the remaining amount was to be paid later. Agreement is not signed by the plaintiff. In the light of judgment reported as 1210 SCMR 334 (Mst. Gulshan Hamid v. Kh. Abdul Rehman and others)". When an agreement to sell is not signed by the party and under the agreement both the parties have to perform their part of contract; that contract is not enforceable under the law, Further I have noticed that PW-1 Muhammad Dil Murad has been produced to show that he is the petition writer who has written this agreement. In cross-examination he admits that he is not having license for petition writing and further that the stamp paper of Ex.P2 has been issued by him but he is not the stamp vendor. I am astonished that how he can issue stamp paper when he is not a stamp vendor. He has further admitted that property owned by Ali Gul, etc was also part of the property mentioned in the agreement to sell but the Ali Gul was not a party to that agreement. Ali Gul is neither party to the agreement nor party to the suit but in the suit it has been mentioned that after perusal of record the plaintiff came to know that Ali Gul is not owner of the property. It is very important that when this PW came as a witness he did not bring his record of petition writing register. In these circumstances, when the stamp paper of the alleged agreement Ex. P1 has been issued by a person which is neither stamp vendor nor has a right to issue the stamp paper and further when the alleged agreement is not signed by the plaintiff himself, that agreement is not enforceable under the law in the light of judgment passed by the August Supreme Court of Pakistan.

7. In our prevalent practice, a standard is set out for proving an agreement to sell if agreement is denied by the defendant in the written statement. Plaintiff is required to produce stamp vendor with his record of register of stamp vending to prove purchase of stamp at specific date by specific person, to produce petition writer with his record to prove writing of agreement on specific date, the marginal witness of agreement and plaintiff should appear himself in witness box. Evidence of plaintiff is not on this standard. Therefore, there is no need to further go into the detail of evidence of the parties which is sufficient to hold that findings recorded by both the courts below are not sustainable under the law. Therefore, I have no hesitation to set-aside the same while exercising jurisdiction vested in this Court under section 100 of the C.P.C., as the findings are against the settled principles of law. This appeal is accepted and judgment and decree passed by both the courts below are set aside with cost throughout. RR/K-25/L Appeal accepted.