2003 PLP 1915 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 28-1-2002 passed by learned Single Judge of Lahore High Court in Chamber whereby Regular Second Appeal preferred on behalf of petitioner has been dismissed.

2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that "on 3-5-1979, the petitioner and the respondent No.3 field a suit against Feroze Din, predecessor-in interest of respondents Nos. 1-A to 1-H. In the plaint it was stated that the suit-land is owned by respondent No. 1 and the petitioner is a tenant in the land and is regularly paying share/rent; that the respondent No. 1 agreed to sell the said land to the said plaintiffs for a consideration of Rs.69,000, received Rs. 15,000 and executed an agreement, dated 6-2-1979 promising execution of a sale-deed by 15-6-1979 upon the receipt of the balance amount; that thereafter the respondent No. 1 proceeded to sell the said land to respondent No.2 for a consideration of Rs.1,00,000 vide a registered sale-deed, dated 28-3-1979. This sale of the land was stated to be violative of the said agreement. The respondent No. 1 filed a written statement denying all the said allegations including the execution of the agreement, receipt of any amount of consideration and the fact that the petitioner is a tenant. Respondent No.2 in his said written statement pleaded that he is a bona fide purchaser of the suit land. During the pendency of the suit, the respondent No.3 (the plaintiff No.2 in the suit) was transferred as defendant No.3 and an amended plaint was filed on 8-11-1983 by the petitioner stating that his co-plaintiff has joined hands with the said defendant in the case. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit of the petitioner vide a judgment and decree, dated 7-6-1989. A first appeal filed by the petitioner was dismissed by a learned Additional Sessions Judge, Gujranwala on 28-9-1992". Beings aggrieved Regular Second Appeal bearing No.54 of 1992 was preferred which has been rejected vide judgment impugned, hence this petition:

3. Heard Malik Amjad Pervaiz, learned Advocate Supreme Court on behalf of petitioner at length who mainly contended that the documentary evidence duly supported by oral evidence has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to elaborate the said contention it is argued that the agreement of sale has fully been proved by petitioner and the statements of scribe and marginal witnesses were ignored without any rhyme and reason resulting in serious prejudice. It is also argued that the payment of consideration and factum of possession were also proved by leading worthy of credence and reliable evidence.

4. We have carefully examined the contention as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment/decree, dated 7-6-1989 passed by learned Civil Judge, judgment and decree, dated 28-9-1992 passed by learned Additional District Judge and the judgment impugned. The entire record has been thrashed out with the eminent assistance of learned counsel. After having gone through the statements of Muhammad Shafi (P.W.1), Muhammad Sharif (P.W.2) and the petitioner Muhammad Saleh (P.W.3), we are of the considered opinion that the execution of document (Exh.P.W.1) could not be proved by producing confidence inspiring evidence. After having considered the entire evidence with diligent application of mind the learned Single Judge in the Chamber arrived at the following conclusion:-- "I have gone through the said evidence on record. I find that the petitioner has not been able to prove the execution of the document, Exh.P.W.1/1. So far as the matter of comparison of signatures of Feroze Din is concerned, suffice it to say that other evidence is available. It has also been advised by the superior Courts not to resort, to comparison to a Handwriting Expert where other evidence is available. In the present case, the scribe does not know Feroze Din while the statement of Saleh petitioner and Sharif Muhammad. P. W. 2 have been fully rebutted by Feroze Din D.W.4, Inayat D.W.6. and Jan Muhammad A D.W.5. I have already noted above that every one seems to be oblivious of the third witness mentioned in the agreement i.e. Noor Alam. Jan Muhammad disowns the agreement. This leaves the matter of possession but it is in the plaint that the petitioner is a tenant and is regularly paying share/rent to the respondent No.

1. Nothing, therefore, turns on the said fact."

5. A careful perusal of the conclusion as reproduced hereinabove would lead to infer that the petitioner has failed miserably to substantiate his claim by adducing cogent or concrete evidence. He also failed to prove that respondent No.2 who was subsequent vendee was aware regarding the sale concerning the suit-property. We have examined the A statement of petitioner Muhammad Saleh who himself could not prove that subsequent vendees were aware or apprised of regarding the sale concerning suit property.

6. In view of what has been stated hereinabove we are of the view that no illegality whatsoever has been committed by the Courts below and the conclusion arrived at .is lawful, just and proper which hardly warrants any interference. The petition being devoid of merit is dismissed. M.H./M-535/S Petition dismissed.