2008 PLP 603 (YLR)

SYED JAMSHED ALI, J.

This revision petition is directed against concurrent judgment and decrees of the learned two Courts, whereby suit for specific performance filed by Mannu Khan, (hereinafter called the plaintiff) deceased, now represented by the petitioners has concurrently been dismissed. It arises out of the following circumstances.

2. The petitioner initially filed suit for declaration on 2-4-1987 which was allowed .to be amended into a suit for specific performance. His case was that Bodyhari, father of Mangli, a displaced claimant, was allotted some land in Tehsil Lodhran leaving 144 P.I.Us. unadjusted which were transferred to Mauza Dhinghana, Tehsil Mankera, now District, Bhakkar. Bodyhari had left behind Mangli as his sole heir, who appointed the plaintiff as special attorney for allotment of land in lieu of the outstanding claim on which land in dispute which measures 146 Kanals was allotted in favour of the plaintiff at Khata R.L.-II No.24 on 4-3-1968. It was averred that on 12-3-1969, Mangli sold 144 P.I.Us. (Exh.P.1) for a consideration of Rs.864 to the plaintiff and since then he was in possession of the disputed land as an owner. It was further averred that the plaintiff had spent approximately Rs.10,000 on the improvement of the land. In 1980 respondents, Nos.1 to 3, the successors in interest of Mangli, appointed Wahid Bukhsh (respondent No.4) as their attorney, who started interfering in the possession of the plaintiff. In November, 1986, respondents Nos.1 to 3 revoked the power of attorney of Wahid Bukhsh and four months preceding the institution of the suit had forcibly occupied the disputed land. It was further averred that respondents Nos.1 to 3 had got the entries in the Revenue Record in their favour, and vide Mutation No.954 attested on 17-7-1988 a part of the land in dispute was sold to respondents Nos.5 and 6.

3. Wahid Bukhsh, respondent No.4, conceded the suit. It was, however, contested by respondents Nos.1 to 3 and 5 and

6. They filed separate written statements. The so-called agreement to sell and execution of the receipt (Exh.P.1) was denied, a number of preliminary objections were also taken.

4. Necessary issues were framed and 'the suit was tried. The learned trial Court, after taking into consideration the entire evidence, came to the conclusion that execution of receipt P.1 was not proved nor it was established that possession was ever transferred to the plaintiff. Mutation of sale in favour of respondents Nos.5 and 6 was held to be valid. The suit was held to be within time. Accordingly, the suit was dismissed vide judgment and decree dated 28-4-1992. The deceased plaintiff filed an appeal which was dismissed vide judgment and decree, dated 25-1-1996. The learned First Appellate Court was of the view that it was not established that the land in dispute was the same, which was allotted in favour of Mangli in lieu of 144 P.I.Us, with the allotment of land against 144 P.I.Us. the claim stood exhausted and, therefore, agreement to sell the P.I.Us. could not be enforced. Accordingly, the appeal was dismissed vide judgment and decree dated 25-1-1996.

5. The learned counsel for the petitioner contends that the learned First: Appellate Court did not consider the evidence as to execution of Exh.P.1 and, thus, requirements of rule 33 of Order XLI of the Code of Civil Procedure was violated. He referred to the testimony of P.W.1, the nephew of the scribe and stated that one of the marginal witnesses was already dead. He further submits that the case of the plaintiff was also supported by P.W.3, P.W.4 and P.W.5 but their evidence was not considered by the learned First Appellate Court. He also maintains that there was no dispute between the parties that the land in dispute was the same which was allotted in favour of Mangli in lieu of 144 P.I.Us. because the averment to this effect in the plaint was not controverted by respondents Nos.1 to

3. He further submits that although Exh. P.1 referred to sale of 144 P.I.Us. in favour of the plaintiff yet the intention of the parties was to sell the land in dispute because it had already been allotted in favour of Mangli. Reliance was placed on Hakim Ali Muhammad v. Muhammad Sharif and others (1990 ALD 398).

6. On the other hand the learned counsel for respondents Nos.1 to 3 contends that the so-called receipt, Exh.P.1, was not duly proved. There were two marginal witnesses of this receipt and even if one was dead the other could be examined. He next maintains that the allotment of land in question was made on 4-3-1968, the claim stood exhausted and, therefore, the so-called receipt evincing sale of P.I.Us. was of no avail. No explanation was forthcoming on the record that even after the allotment of land in favour of Mangli, Exh.P.1 related to the P.I.Us. and not the, land it self, if the intention of Mangli was to transfer land through the said document.

7. I have considered the submissions made by the learned counsel for the parties and have examined the evidence with their help, P. W.1 Fazal Ahmad, stated that the scribe namely Noor-ul-Hassan was his uncle, Exh.P.1 was in his handwriting which was entered in his register at serial No.382. He however, admitted in cross-examination that the signatures of the witnesses were not there (on the register). His testimony did not establish either an agreement to sell by Mangli in favour of the plaintiff or execution of the receipt because undisputedly, this documents was not executed in his presence. P.W.2, Mahmood Khan, son of the petitioner, appeared to support the case' of the plaintiff, P.W.3, claiming to be a relative of Mangli stated that Mangli had sold 144 P.I.Us. in favour of the plaintiff for Rs.864 and the transaction was reduced in writing. His name does not appear on the receipt Exh.P.1 nor he has even asserted that Mangli affixed his thumb-mark on the said writing in his presence. P.W.4 claims sale of 144 P.I.Us. in favour of the plaintiff and further stated that the witnesses and Mangli had affixed their signatures and thumb-impression respectively on the document. His name also does not figure as a witness on Exh.P.1 Mumtaz Hussain, appeared as P.W.5 to State that he has been cultivating the land in dispute from 1981 to 1987 and has been paying share of produce to the plaintiff. Evidence of none of the witnesses examined on behalf of plaintiff established execution of Exh.P.1. The petitioners relied on the testimony of P.W.3 and P.W.4 but none of the two marginal witnesses of the receipt Exh.P.1, was examined. At the bar the learned counsel for the petitioners contended that one marginal witness was already dead. However, even if it was so at least the order marginal witness should have been examined. In any case this receipt by itself is not sufficient to establish a valid agreement to sell the land in dispute in favour of the plaintiff. No explanation is forth coming on the record as to 'why a receipt for sale of P.I.Us. was executed when about one year back the land in dispute had already been allotted in favour of Mangli. The copies of the Khasra girdawaries placed on record by the plaintiff do not cover the period from 1969 to Rabi 1982. Thus, there is no evidence on the record in support of the plea that with the execution of Exh.P.1 possession of the land was transferred to the plaintiff Exh. P.3 is Khasra Girdawai from Kharif 85 to Kharif 86, while Exh.P.5 is Khasra Girdawari from Kharif 1982 to Rabi 1990. These documents do not support the above said plea of the plaintiff. It may be observed that delivery of possession under a written agreement alone could entail legal consequences.

8. While examining the record I found that the petitioners had made an application before the learned First' Appellate Court for comparison of the thumb-impression of Mangli on Exh.P.1 With his admitted thumb-impression on the power of attorney but this application was withdrawn by the learned counsel for the petitioners before the learned First Appellate Court and was accordingly, dismissed on 6-6-1995. I have also noted that on 24-4-1993 Mahmood Khan, one of the petitioners, made an application that if respondent Nos.1 or 2 make an Oath on the Holy Quran negating the claim of the plaintiff, the suit may be dismissed. Allah Ditta, respondent No.2, son of Mangli accepted this offer vide application dated 23-11-1993. Accordingly, the case was adjourned for the oath of respondent No.2. Before, however, the oath was administered, the petitioners withdrew their offer which was allowed vide order dated 16-1-1994. This conduct of the petitioners also detracts from the bona fides of their claim.

9. It may also be observed that the suit to enforce the so-called agreement was filed after 18 years for a sale consideration of Rs.846 for land measuring 146 Kanals. Thus, equities heavily leaned in favour of respondents Nos.1 to 3.

10. In any case since the receipt Exh. P.1 was not duly proved its effect whether it amounted to an agreement to sell the land in dispute is not required to be determined.

11. There is no merit in this petition which is dismissed. M.I./M-2259/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.