2006 PLP 1050 (CLC)

MAULVI ANWARUL HAQ, J.

On 23-5-1992 the respondents filed a suit against the appellant for possession of the suit property mentioned in the plaint. According to them, the appellants are the step-brothers of respondent No.1 who is mother of the other respondents and the appellants were permitted to reside in the house. They, however, refused to vacate the same. On 12-10-1995 the appellants filed a suit against the respondents stating that Asghar Ali, the predecessor-in-interest of the respondents, had promised to sell the suit property to Wazir-ud-Din, the predecessor-in-interest of the appellants vide agreement to sell dated 19-10-1963 and had received the entire price of Rs.12,

000. They sought a decree for specific performance. The suits were contested by the parties with their respective pleas. These were consolidated. Issues were framed. Evidence of the parties was recorded. Vide consolidated judgment and decree dated 3-1-1996 the suit filed by the respondents was decreed but one filed by the appellants was dismissed by the learned trial Court. A first appeal filed by the appellants was dismissed by a learned Additional District Judge, Multan, on 25-2-2004.

2. Learned counsel for the appellants contends that it was not the fault of the appellants that the scribe D.W.1 did not appear for cross-examination and that the learned Courts below have committed an error of law in discarding his evidence. He further contends that an application filed by his clients well in time for comparison of the signatures of the deceased Asghar Ali was kept pending by the learned trial Court but not decided. The learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees.

3. I have gone through the records of the learned trial Court which are available. I have already narrated above the material contents of the pleadings of the parties above. The ownership of the respondents stands admitted and, of course, admittedly the appellants are in possession of the said suit property. They claimed to be in possession under an agreement and sought its specific performance in a suit filed three years after the institution of the suit by the appellants for possession of the suit property against them. Be that as it may, the agreement is on record as Exh.D.1. It purports to bear the signatures of Asghar Ali and is attested by Haji Sheikh and Hafiz Abdul Aziz witnesses. Both these witnesses are stated to be dead. Now D.W.1 is Murad Khan aged 48 years. He has stated that agreement Exh.D.I was scribed by him upon the asking of Sh. Asghar Ali in favour of Wazir-u-Din. It was read over and then Asghar Ali signed the document and the said witnesses put their thumb-impressions. Rs.12,000 were paid in his presence by the vendee to the vendor and that he had entered the document in his register. Now this statement was recorded on 13-12-1995 and the case was adjourned to the following day for his cross-examination. The witness did not turn up and the learned trial Court observed that the witness has absented himself deliberately and adjourned the case for rebuttal evidence. I may further note here that this is the only piece of evidence in support of the execution of the said document by Asghar Ali as the only other relevant witness i.e. Abdul Hamid appellant D.W.3 stated that he saw the document for the first time about nine years before 13-12-1995 when his statement was recorded and prior to that he was not even aware ' who is the owner of the house. He has not said a word about its execution.

4. Now I find that the said Murad Khan, D.W.1, was summoned through summons available at page 271 next to the form of process fee. He was summoned for 13-12-1995. There is a clear order recorded that the witness is bound down for 14-12-1995 and the signatures of Murad Khan were taken on the same. This being so, the absence of the witness is clearly deliberate and in disobedience of the order of the Court.

5. Now so far as the matter of comparison is concerned, according to the learned counsel, the signatures appearing under the endorsement of registered sale-deed Exh.P.1 are, admittedly, those of Haji Asghar Ali. This fact is admitted by the learned counsel for the respondents as well. Now with the assistance of both the learned counsel, I have compared the said admitted signatures appearing at page 70 of the trial Court file on Exh.P.1.with the signatures of Asghar Ali on Exh.D.1 at page 83 of the trial Court file. To my mind, one need not to be an expert to say, upon examination, with naked eye, that the signatures on Exh.D. 1 are not of the person whose signatures appear upon Exh.P.l. I may note here that Exh.P. 1 is dated 22-3-1963 whereas Exh.D. 1 is dated 19-10-1963. There is no similarity whatsoever between the two signatures. In the Exh.P.1, the signatures are " Exh.D.1, the signatures read. All the four common words i.e. and are completely different in the two documents.

6. Learned counsel then abruptly argued that the execution of the document by Asghar Ali had been admitted by Akhtar Ali respondent No.2 as P.W.I. I have examined his statement. Now I find that after some questions in cross-examination, he did proceed to state that Exh.D. 1 bears his father's signatures but then he corrected himself to state that it does not so bear the signatures of his father. The matters were further got clarified through the courtesy of the learned cross-examiner and he stated that he had not admitted the said suggestion. Nothing, therefore, turns on the said arguments.

7. Having, thus, examined the records, I do not find any error of law or for that matter of fact having been committed by the learned Courts below while passing the impugned judgments and decrees. The R.S.A. is accordingly dismissed with costs throughout.

8. The records of the learned Courts below be returned back immediately. H.B.T./A-64/L Appeal dismissed.