2006 PLP 627 (CLC)

UMAR ATA BANDIAL, J.

This is a second appeal fitted against the finding given by the learned appellate Court vide judgment, A dated 15-3-2005 dismissing the appeal and affirming the judgment and decree of the learned Civil Judge dated 19-2-1998 whereby the appellants' suit for specific performance of agreement to sell dated 2-3-1991 was dismissed. The execution of this agreement as well as receipt of any consideration thereunder is denied by the respondents/ vendors. Accordingly after consolidation of proceedings with another suit, 8 issues were framed in which issue No.3 raises the following question: "(3) Whether the defendants Nos.1 and 2 had entered into agreement of said dated 2-3-1991 with the plaintiffs against a sum of Rs.3,80,000 and that received a sum of Rs.2,48,000 in advance? OPP" On this issue the learned appellate Court has given very lucid findings which are reproduced as follows:-- "Issue No.3 Burden to prove this issue was placed upon the appellants. In order to prove this issue the appellants examined 6 witnesses including Muhammad Zafar one of the appellants as P.W.4-Muhammad Sharif Qadri appeared as P.W. who is a deed-writer, deposed that he had seen the agreement to sell Exh.P.1 which was in his handwriting and was entered at S.No.34 dated 2-3-1991 in his register. He was cross-examined. During cross-examination a photo copy (Exh.P. I) of the agreement to sell was shown to him to which he admitted that the same was a photocopy of Exh.P.1. He admitted that Exh.P.1 was not completed at the time of its execution and the name of witnesses were inserted in it on the next day. During cross-examination he stated that the land of Chak No.351/GB was the subject-matter of that agreement. He admitted that Chak No.351/GB (Nagra) was situated at Rajana Toba Road at a distance of 5 kilometers from Toba Tek Singh towards Rajana while he was doing his business at Gojra. He admitted that in between Nagra and Gojra there situated the City of Toba Tek Singh. He admitted that he was having very good relations with the father of appellants and used to go him. This witness has completely destroyed the case of the appellants. He was not declared hostile nor was requested to be subjected to cross-examination by the appellants, therefore, his evidence shall be deemed to be admitted by the appellants. Moreover, bare perusal of Exh.P.1 shows that some interpolations and insertions have been made in Exh.P.1 such as Chak No.291/1B has been rewritten after erasing some writing from stamp paper by scraping with a blade or such-like instrument. Moreover, the date at the foot of Exh.P.1 is also erased and is rewritten. These interpolations are very visible from naked eye. Exh.P.W.I/1, which is, a photocopy is also compared with Exh.P.1. In Exh.P.1 the word at the end of line No."291" are mentioned on a erased place while in Exh.P.W. I/I the word "251" are written. Similarly at the foot of Exh.P.W.1/1 the date is mentioned as first March while in Exh.P.1 the visible erasing is made in place of "I", "2" is inserted. Moreover the name of witness Abdul Majeed son of Lal Din does not find mentioned in Exh.P.W. I/1. A deeper analysis of Exh.P.1 shows that the figures "291", 2nd March and name of witness Abdul Majeed son of Lal Din is with different handwriting. From the evidence of P.W. it is established that the initial agreement was executed in respect of land situated in Chak No.351/GB and later on by erasing certain contents, the number of village was changed and the date of agreement was also changed." When foregoing passage in the impugned judgment was confronted to the learned counsel for the appellants he denied the allegation of tampering with agreement to sell. To establish his point, he requested for original document to be summoned and examined against the deposit of security in the sum of Rs.10,000 to establish validity of his plea. As alteration and tampering of the contents of the agreement to sell formed ground in the appellate judgment, therefore, the request by the learned counsel was acceded. When the document in question was examined the erasure and alteration highlighted in the judgment above were noticed clearly. As a result the finding given by the learned appellate Court is entirely justified. No question of law arises for determination by this Court. This appeal is accordingly dismissed and security deposited by the appellants is forfeited. H.B.T./M-1388/L??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.