2012 PLP 1006 (YLR)

CH. SHAHID SAEED, J.

Through the instant Civil Revision, the petitioner has impugned the judgment and decree dated 8-2-2003 passed by learned Additional District Judge, Ferozewala, District Sheikhupura, who accepted the appeal of respondents Nos.4 and 5 and reversed the judgment and decree dated 15-12-2000 passed by learned Civil Judge, Ferozewala, District Sheikhupura whereby the suit of the petitioner was decreed.

2. The facts of the case, in brief, are that the petitioner-plaintiff filed a suit for specific performance of the contract with the averment that defendants No.1 Mst. Rasheeda Bibi and defendant No.2 Mst. Naziran Bibi (since expired during the pendency of the suit), entered into agreement with the petitioner-plaintiff for the sale of the land measuring 24 kanals, fully described in the plaint, vide agreement to sell dated 10-7-1992 (Exh.P1) against consideration of Rs.42,000, out of which, Rs.30,000 were paid to them as earnest money while the residual amount was agreed to be paid by 31-3-1993 but in the meanwhile, Mst. Rasheeda Bibi sold the said land to Nisar Ahmed and Mukhtar Ahmed (respondents Nos.4 and 5) vide registered Sale-deed No.8145 dated 10-9-1992 (Exh.D2), which was asserted to be unlawful.

3. The suit-land was hotly contested by the respondents Nos.4 and 5 mainly on the grounds that the alleged agreement to sell dated 10-7-1992 was a forged document; that Mst. Rasheeda Bibi earlier agreed to sell the suit-land to their father on 18-2-1988 but later on avoided to get a sale-deed registered in their favour. Afterwards, the said lady sold the land in question against consideration of Rs.1,20,000 and also got registered the sale-deed in their favour. They, however, admitted that the petitioner-plaintiff was in possession of the suit property as tenant.

4. Out of divergent pleadings of the parties, 7 issues were framed. The learned trial court after recording oral as well as documentary evidence adduced by the parties, decreed the suit of petitioner-plaintiff Rehmat Ali vide judgment and decree dated 15-12-2000. In appeal, the learned first appellate court vide impugned judgment and decree set aside the judgment and decree of the learned trial court and dismissed the suit of the plaintiff. Hence this civil revision.

5. Learned counsel for the petitioner inter alia contends that the judgment and decree passed by learned trial court is based on cogent reasons; that the petitioner-plaintiff has been successful to prove the agreement to sell dated 10-7-1992 through convincing evidence; that the respondents are not bona fide purchasers as they were in knowledge that Mst. Rasheeda Bibi had already sold the disputed property to the petitioner-plaintiff which was never challenged by anyone; that the respondents admit that the petitioner-plaintiff has been in possession of the suit-land and that the learned first appellate court has fell in error while holding that there is overwriting in the agreement to sell dated 10-7-1992 on the date of payment of residual amount, however, no advantage of overwriting, if any, could by pointed out, as such, the judgment and decree passed by learned first appellate court is against the law and fact. Learned counsel prays that the impugned judgment and decree be set aside and the judgment and decree passed by learned trial court be restored.

6. On the contrary, learned counsel for respondents Nos.4 and 5 has vehemently opposed the assertions of the petitioners side and fully supported the impugned judgment. He mainly argues that the P.Ws. are related inter se; that they are interested witnesses; that no consideration amount was paid and that the petitioner-plaintiff has failed to prove that the Exh.P1 was validly and legally executed, as required under Article 79 of Qanun-e-Shahadat Order, 1984 and that for acceptance of a civil revision, there must be some misreading, non-reading, illegality or infirmity in the judgment of the first appellate court, which could not be pointed out by learned counsel for the petitioner. He avers that the civil revision has no merit, it be dismissed.

7. I have heard the arguments put forth by learned counsel for the parties and also perused the record.

8. The crucial issues in this case are Issues Nos. 2 and 6 which will decide the fate of the case. Learned counsel for the parties have also advanced their arguments mainly on these two issues.

9. In this case, both the petitioner-plaintiff and the respondents Nos.4 and 5 are claiming that they have purchased the suit-land from Mst. Rasheeda Bibi and others. The petitioner-plaintiff avers that on 10-7-1992, Mst. Rasheeda Bibi entered into agreement to sell with him regarding the disputed property against consideration of Rs.42,000, out of which Rs.30,000 were paid as earnest money while the rest of the amount was agreed to be paid till 31-3-1993 but before 31-3-1993, Mst. Rasheeda Bibi malafidely sold the land to respondents Nos.4 and 5 vide registered sale-deed dated 16-9-1992 which is illegal and unlawful. On the other hand, respondents allege that the agreement to sell dated 10-7-1992 in favour of the petitioner-plaintiff is a forged document which has no validity in the eye of law.

10. Mukhtar Ahmed (respondent-defendant No.5) appeared as DW-7 who deposed that they had asked Mst. Rasheeda Bibi about the agreement to sell dated 10-7-1992 in favour of the petitioner-plaintiff whereupon Mst. Rasheeda Bibi stated that the said agreement was forged and fabricated document. However, the said agreement to sell was never challenged by the vendors or anyone else. In the circumstances, it was incumbent upon the respondents to satisfy themselves before entering into a sale-deed. However, learned counsel for the respondents have failed to show any effort made at their end to ascertain the ownership of the suit-land or whether the vendors have already alienated the land to someone else or not. In this regard, learned counsel for the respondents submits that Khasra Gardawari is there on the record. However, Khasra Gardawari does not create any title and thus, is not helpful to the respondents. As such, respondents Nos.4 and 5 cannot be held as bona fide purchasers.

11. In support of assertions of the petitioner-plaintiff, Abbas Ali, scribe of Exh. P1 and Safdar Ali and Atta Ulla, attesting witnesses of Exh. P1 and Rehmat Ali (plaintiff) appeared as P.Ws. Nos.1 to 4 who fully supported the version of the petitioner-plaintiff but no question was put to them by the respondents, as such, no dent happened in the cross-examination.

12. As regards the overwriting on the date of payment of residual amount made on Exh. P1, the overwriting does not affect the rights of any party. Since the overwriting of date on Exh. P1 has no adverse effect on either party, presumption of truth is attached to the contents of the same. The vendors Mst. Nazeeran and Mst. Rasheedan Bibi were made party, they were proceeded against ex parte. Mst. Nazeeran Bibi expired during the pendency of the suit while, as per learned counsel for the petitioner, Mst. Rashidan Bibi is still alive. None of the parties made any effort to bring any of the two ladies to the witness box to ascertain the truth regarding who purchased the stamp paper of Exh. P1 and respective versions of the parties It was the best evidence to prove the case of the respondents. It is also noteworthy that when ex parte order was passed against the vendors, the onus to prove the issue shifted upon the respondents-defendants Nos.4 and 5 who failed to prove the same. The vendor by not appearing before the court has impliedly supported the version of the petitioner-plaintiff. The learned first appellate court has fallen in error while holding that the payment of amount could not be proved. I have gone through the record wherein all the P.Ws. have categorically stated that the consideration amount was duly paid to the vendors. Furthermore, no objection has been taken by the respondents at any stage about the genuineness of the marginal witnesses. The record shows that the stamp paper of Exh. P1 does not carry signature or thumb-impression of the purchaser though it has been stated that the same was purchased by Mst. Nazeeran Bibi. In this regard, the respondents could bring or summon the stamp vendor from whom the stamp paper of Exh. P1 was purchased but they failed to do so. As such, keeping in view the evidence available on record, it would be presumed that Mst. Nazeeran Bibi had validly purchased the stamp paper.

13. So far as the contention of learned counsel for the respondents that the P.Ws. are inter se related is concerned, it is admittedly by both the parties that though P.Ws. are related inter se but they have no relationship with the petitioner-plaintiff Rehmat Ali. As such, the relationship between the P.Ws. will have not effect on the case of the petitioner-plaintiff. The respondents' side has also miserably failed to point out any malice on the part of the P.Ws., therefore, their veracity is beyond any iota of doubt.

14. Respondents Nos.4 and 5 also assert that the demised land was previously agreed to be sold vide agreement dated 18-2-1988 (Exh. D1) to their father. However, perusal of Exh. D1 highlights that it was executed in favour of father of respondents Nos.4 and 5; it did not contain description of the property and it was admittedly expired in June, 1988 and no effort was made for extension of the agreement Exh. D

1. Moreover, there is even no mention of Exh. D1 in Exh.D2, therefore, both the learned courts below have rightly disbelieved Exh. D1 and it has no effect on the case of the petitioner-plaintiff in any manner. No interference by this Court is required in concurrent findings of fact.

15. The other contention of learned counsel for the respondents that the judgment passed by learned first appellate court is immune from inter-ference is misconceived as this Court has ample powers to interfere in such judgments if there is any illegality, infirmity or misreading or non-reading of evidence.

16. For the foregoing reasons, I am of the firm opinion that the learned first appellate court has failed to appreciate the evidence available on record and illegally and unlawfully reversed the findings of the learned trial court which are based on judicious and solid grounds. Resultantly, this civil revision is allowed, the judgment and decree dated 8-2-2003 passed by the learned first appellate Court is set aside and the judgment and decree dated 15-12-2000 passed by the learned trial Court is restored. S.A.K./R-59/L Revision accepted.