1987 PLP 2724 (MLD)

This Regular Second Appeal impugns the judgment/decree dated 13-12-1972 passed by the learned Additional District Judge, Gujranwala, (Camp at Sialkot) whereby the first appeal of the present appellants/ defendants was dismissed.

2. The respondents /plaintiffs brought the suit for possession of the land in question stating that they had not sold it at all in favour of the appellants-defendants. Their case was that having migrated to Tehsil Phalia, District Gujrat for years, they were asked by the appellant /defendant Taj Din, who was a dismissed Patwari, to execute a power of attorney in his favour for helping them in getting comparatively a better piece of land in consolidation proceedings and that plaintiffs No.1 and 2 being been so persuaded appointed him as their Attorney. A month later they learnt that the defendants got transferred in their own favour the land in question through Mutations Nos.2779, 2790 and 2791 dated 16-7-1965 for various considerations. They averred that they had not authorised him to make the sales and they were not bound by the mutations as these were based upon fraud, misrepresentation and were without consideration. They added that one of the vendors Mst. Mehran was not heard of for the last, 18 to 20 years, but the defendants quite cleverly showed her presence before the Revenue Officer and got the mutations attested through misrepresentation. Still further they urged that no permission was sought from the Consolidation Authorities in regard to the sales and, therefore, those were untenable.

3. The defendants denied the allegations of fraud etc. maintaining that the plaintiffs had executed an agreement to sell the land in their favour on 9-3-1965 for a sum of Rs.19,000 out of which they had actually received Rs.11,500 obliging themselves to execute the sale deed within one year or else to pay heavy penalty of Rs.21,

000. They added that they had got redeemed a portion of the land subsequently by paying Rs.1,300 to a real uncle of the plaintiffs.

4. Appropriate issues were framed. The trial Court ultimately decreed the suit. The first appeal, as already pointed out, also failed.

5. Ch. Muzammal Khan for the appellants stressed that the lower appellate Court completely failed to take note of considerable evidence and additionally drew perverse conclusion particularly from the statements of D.Ws.6, 7 and 8 who sufficiently bore out the execution of the agreement (D.W.7/1) as also payment of the entire consideration amount. The appeal was seriously opposed observing that neither reappraisal of evidence could be made nor could the findings of fact be disturbed.

6. I have gone through the entire record. It is the respondents own case that at least two of them had signed the agreement to sell (Exh.D.W.7/1). Their explanation that they had executed only a power of attorney in favour of the appellant Taj Din, was not borne out by the document itself. It speaks of the sale for Rs.19,000 out of which a huge sum of Rs.11,500 was advanced as earnest money. Onus heavily shifted on the respondents-plaintiffs to prove that the document they were signing did not reflect their intention truly. Except using the catch words that they had instead executed a power of attorney, they could not offer anything substantial to disbelieve the document itself, nor could they get something tangible from cross-examination particularly of D.W.6, D.W.7 and D.W.8. Of them D.W.8 was the scribe of the document, whereas D.W.7 was the marginal witness. There was no suggestion put to any of them if indeed they were asked to attest or execute a Mukhtar-Nama authorising the appellant Taj Din to arrange a good piece of- land for them in consolidation. Some of these witnesses categorically stated that a sum of Rs.11,500 was paid in their presence to the respondents, but there was no question put to them in relation therewith. Learned counsel argued that the document at best bound plaintiffs Nos.1 and 2 and that it had no effect against others who were not its signatories. This may be true, but the testimony of the A.C.0 (D.W.3) sufficiently shows that all of them had appeared before him to get the mutations attested in favour of the appellants. There was also some evidence showing B that a receipt was executed by the respondents acknowledging payment of the amount, but the same was lost due to commotion of the 1965-war. This version could not be shaken in the cross-examination. The lower appellate Court in a way failed to read a sizeable evidence on the record supporting the appellants' case.

6. As a result the R.S.A. is accepted and the impugned judgment/ decree are set aside and the respondents' suit is dismissed leaving the parties to bear their own costs. H.B.T./T-22/L????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.