2004 PLP 1987 (MLD)

The respondent/plaintiff filed a suit for possession through specific performance of contract on the basis of the two agreements to sell dated 28-2-1995 and 13-6-1995 in respect of the land fully detailed and described in the plaint against consideration of Rs.2,00,000 out of which Rs.1,95,000 was paid on 28-2-1995 with a balance of Rs.5,000 only, which was paid on 13-6-1995. The defendant/petitioner filed written statement. The execution of the alleged agreements were denied. It was pleaded that the respondent, who is real brother, required him to put thumb-impressions on blank-papers so that he could initiate proceedings for redemption of land mortgaged against agricultural loan. Controversy was reflected in issues. Parties produced their respective evidence. The learned trial Court dismissed the suit of the respondent/plaintiff vide its judgment and decree dated 6-12-2001. An appeal was preferred by the respondent/plaintiff, which came up for hearing before the learned Addl. District Judge, Sheikhupura, who while allowing the appeal of the respondent set aside the judgment of dismissal and decreed the suit of the respondent. Judgment and decree dated 16-3-2002 of the learned Appellate Court has been called in question through this civil revision.

2. The learned counsel for the petitioner contends, that, it was highly improbable for the plaintiffs to have paid full consideration amount and not insisted for delivery of possession, which circumstance strongly reacted to their claim. Places reliance on Sanaullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256); payment of consideration amount and the contents of alleged agreement remained unproved on record and that the evidence of the respondent was not confidence-inspiring. Relies on Mst. Rashida Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089).

3. The learned counsel for the respondent, in opposition, argued that the agreement has been proved on record by examining marginal witnesses coupled with the statement of Notary Public, Petition Writer and Stamp Vendor. He further added that one witness of agreement, inspiring-confidence, is sufficient to decree the suit.

4. I have considered the respective contentions of the learned counsel for the parties with reference to case-law cited at the bar and available evidence on record.

5. P.W.1 Ch. Aziz Ahmad, Advocate, Notary Public stated that Exh.P.1 agreement contains his notarization. In cross-examination, he stated that defendant was not known to him. Habib was also unknown to him. Their National Identity Cards were seen but did not record their numbers. Haji Muhammad Habib appeared as P.W.2. He is marginal witness of Exh.P.1. He stated that Exh.P.1 was signed by him and Suba Khan. Defendant Mukhtar had thumb-marked the agreement. Payment of Rs.5,000 was made to defendant in his presence who had acknowledged receipt of Rs.1,95,000 previously. In cross-examination, he admitted that the land was mortgaged with Bank. Balance amount of Rs.5,000 was paid to defendant prior to appearance before Notary Public. He admits that the suit-land is in possession of the defendant. P.W.3 Suba Khan is also marginal witness of Exh. PI, who stated to have signed the agreement. According to him, defendant had admitted receipt of Rs.1,95,000 previously. P.W.4, Petition Writer stated that he scribed Exh. P.1 Receipt of consideration amount was admitted. P.W.5 is Petition Writer, who authored Exh. P-2 on 28-2-1995. It was marginallywitnessed by Riaz Ahmad and Muhammad Yaseen Lamberdar. In cross-examination he stated that he is not licensed Petition Writer. Payment was made prior to the execution of agreement. He did not record the Identity Card number of Yasin P.W. P.W.6 Yasin Lamberdar stated that agreement Exh. P.2 was written by P.W.S. Payment of Rs.1,95,000 was made in his presence. In cross-examination he made interesting disclosure. He admitted the suggestion that at the time of writing of Exh. P-2, the land was mortgaged with Bank. He also admitted that Exh. P.2 was written for redemption. Urdu version for facility of reference is given below! He had also stated to have counted the amount and paid to Ashiq. P.W.7, Muhammad 'Sharif, Stamp Vendor stated that he had issued stamp paper of Exh. P.2. In cross-examination, he admitted that Mukhtar is not known to him. He, however, denied that stamp paper was got issued by Ashiq plaintiff. He is firm that it was issued after verification of National Identity Card No. 294-89-889845. His register bears signature of purchaser. Plaintiff himself appeared as P.W.B. He stated to have himself purchased the stamp paper of Exh. P.2. Mukhtar Ali had signed and thumb-marked Exh.2. Marginal witness Riaz has expired. Muhammad Ashraf is real brother of Mst. Sardaran, widow of Mukhtar defendant, who has been won over. He deposed that Exh. P.1 was entered as defendant was not willing to execute sale-deed, in performance of Exh. P.2. He denied the suggestion that thumb-impression of defendant were obtained at his house on the pretext of securing redemption of land. Original defendant died on 9-10-1999. Mst. Sardaran Bibi, widow appeared as D.W.1. She denied execution of agreement by defendant. She stated that possession of suit-land is with her. Plaintiff had obtained thumb-impressions of the defendant on blank paper for redemption of mortgage. She stated that the land in dispute was redeemed by her after sale of piece of land other than the suit-land.

6. Agreement Exh. P.2 is dated 28-2-1995. Stamp paper was issued by Muhammad Sharif, P.W.7. He stated that it was issued in the name of Mukhtar Ali. P.W.8 plaintiff stated that he purchased stamp paper of Exh. P.2. It is thus clear that Mukhtar Ali had not purchased the stamp paper of Exh.P.2.This agreement was marginally witnessed by Riaz. He died during trial. His signatures have not been proved. Plaintiff could have proved the signature by other means. No attempt was made in that regard. Ashraf is said to have been won over. He was not summoned through the process of Court. He should have been examined. In case he was not supporting the plaintiff, request for declaring him as hostile witness should have made and cross-examined him to elucidate truth. Only evidence left is of P.W.

6. He has not supported the plaintiff. He rather corroborated the version of defendant.

7. Agreement Exh.P.2. Creates future interest. Such like agreement if reduced into writing requires attestation by at least two male witnesses under Article 17.. Two attesting witnesses are required to prove document under Article 79 of Qanoon-e-Shahadat Order, 1984, which is not available in the present case. Reliance can safely by placed on the dictum of Honourable Supreme Court of Pakistan in the case of Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089).

8. As to agreement Exh. P.1, the plaintiff stated that the defendant was unwilling to execute the sale-deed, therefore, Exh. P-1 was written. This appears to be false on the face of it. The agreement was allegedly executed in the compound of District Courts. Entire payment was being made. Plaintiff in the ordinary course of things would have required him to execute sale-deed.

9. Possession admittedly remained with the defendant and after his death with his widow, the petitioner. Alleged agreement was entered on 28-2-1995. Out of total consideration amount of Rs.2,00,000 alleged to have been fixed, plaintiff paid Rs.1,95,000 with a balance of Rs. 5,

000. It is improbable and against the normal conduct not to insist for delivery of possession or for execution and registration of sale-deed when full consideration amount was paid. The plaintiff did not specify any reason for non-delivery of possession. This circumstance strongly reacts against the claim of the plaintiff. Agreements of such nature, in the absence of special circumstances, are doubtful. Specific performance of an agreement is a discretionary relief. It cannot be exercised in favour of the plaintiff, when his evidence does not inspire confidence in it. Reference can be had to the pronouncement of Hon'ble Supreme Court of Pakistan in case of Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256).

10. The defendant had denied execution of agreement in his written statement and alleged fraud. Plaintiff has not made any attempt to get comparison of thumb-impression of a defendant with his admitted impressions on written statement. Signature of defendant on Exh.P.1. And Exh.P.2.Are dissimilar.

11. In view of the above discussion, the civil revision is acceptedthe impugned judgment of the learned Additional District Judge dated 16-3-2002 is set aside and that of the learned trial Court dated 6-12-2001 is restored. H.B.T./S-143/L Revison accepted.