2008 PLP 204 (MLD)

SYED ZAHID HUSSAIN, J.

A suit for specific performance of agreement, dated 6-12-1978 qua shop No.14-B, Panorama Centre Lahore instituted by Ch. Nazir Ahmed, respondent No.1, was decreed by the trial Court on 17-1-1999 whereagainst appeals were preferred by the appellants herein and respondent No.2 (appellant in R.S.A. No.62 of 2001) and were dismissed by the learned Additional District Judge Lahore on 23-10-2001. These concurrent judgments are sought to be assailed through these two appeals i.e. R.S.A. No.56 of 2001 and R.S.A. No.62 of 2001 which shall stand disposed of through this judgment. The record of the trial Court was summoned which has been examined.

2. The learned counsel for the parties have addressed arguments on the point as to whether the plaintiff/respondent No.1 had successfully proved the execution of agreement, dated 6-12-1978 or that appellants/defendant were bona fide purchaser for consideration without notice.

3. This indeed was the crucial controversy between the parties. On appreciation of the evidence that was produced by the parties, the concurrent findings recorded by the two Courts below are that the plaintiff/respondent No.1 had successfully proved the execution of agreement, dated 6-12-1978 (Exh.P-1) who had been delivered possession of the shop in dispute under the said agreement. It has also been found that the appellants/defendants could not be regarded as bona fide purchaser of the shop. The contention of the learned counsel for the appellants with reference to Articles 17 and 79 of Qanoone-e-Shahadat Order, 1984 that agreement Exh.P-1 did not conform to the requirements laid down therein is untenable inasmuch as the agreement sought to be enforced by the respondent/plaintiff is of the year, 1978 whereas Qanoon-e-Shahadat Order was promulgated in the year, 1984. Reference in this context may be made to Mst. Rasheeda Begum and others v. Muhammad Yousaf and another (2002 SCMR 1089). The case of the respondent/plaintiff was that at the time of agreement, dated 6-12-1978 Exh.P-1 a sum of Rs.42250 out of the total consideration of Rs.96250 was paid by him and possession was delivered. The balance payments were made by him through receipts Exh.P-2 to Exh.P-5. His assertion got support by the fact that the suit shop had been rented out by him to one Muhammad Afzal whose ejectment was then sought by him through an ejectment order passed by the Rent Controller Lahore on 6-3-1988 (Exh.P-8) which order of ejectment was maintained by the Appellate Court on dismissal of appeal by the learned Additional District Judge, Lahore vide judgment, dated 12-7-1988 (Exh.P-7). That was evidence of great relevance and importance which has remained unrebutted. Since M. Naqi Khan, Executive Director of Messrs Panorama Enterprises (Pvt.) Ltd. and the attesting witness Saleem Mahmood. had died, the statement of respondent/plaintiff coupled with the other circumstantial evidence including the judicial orders i.e. ejectment order passed by the Rent Controller (Exh.P-8) and of the learned Additional District Judge (Exh.P-7) referred to above, was sufficient to prove the execution of agreement, dated 6-12-1978.

4. Insofar as the claim of the appellants (in R.S.A. No.56 of 2001) that they were bona fide purchaser for valuable consideration without notice is concerned, suffice it to observe that they claimed to be vendees from one Zia-ud-Din Butt vide sale-deed, dated 17-12-1988 (Exh.P-11). They could only succeed if valid sale of the suit shop was proved in favour of Zia-ud-Din Butt. Copy of the alleged sale-deed, dated 18-10-1988 (Exh.P-12) in favour of Zia-ud-Din Butt bears the signature of one Abdul Waheed, Director/attorney of Messrs Panorama Enterprises (Pvt.) Ltd., and Zia-ud-Din Butt, but neither of them was produced by the appellants in the Court. Thus the initial onus of proving issue No.9 that they were bona fide purchaser, was not discharged by the appellants. It was for them to have proved issue No.9 by producing clear and cogent evidence, but no satisfactory evidence was produced by there. The testimony of the Muhammad Ayub D.W.1 who claims to be Manager of Panorama Enterprises (Pvt.) Ltd. was of no value as he joined the service in the year, 1989 whereas agreement (Exh. P-1) was of the year, 1978. Rather he expressed his ignorance about any such agreement of prior to the year, 1989. In his statement made by Muhammad Akbar D.W.2 it was admitted by him that they had been conducting business in shop No.2-B of Panorama Centre. He however, repelled the suggestion that they had knowledge of the dispute going about the suit shop or that the respondent/plaintiff had informed that he had already purchased the shop. The evidence on the record when considered and weighed in its totality supports the concurrent view taken by the Courts below. The suit was thus rightly decreed by the Courts below. Reference in this context may be made to Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189). I am therefore, of the view that no illegality has been committed by the Courts. The appeal being without merit is thus dismissed. S.A.K./A-857/L Appeal dismissed.