' Briefly stated the facts of the case are that the suit property was inherited by the respondent No.1 along with her brothers and other sister. Petitioners, who are real nephew of respondent No.1, being-sons of her brothers Khan Baig and Fazil ,Muhammad, on 21-4-1991, brought a suit for specific performance for the enforcement of agreement to sell dated 28-12-1989, allegedly executed by the respondents in their favour qua her inherited land measuring 71 Kanals for a sum of Rs.40,000, out of which, they claimed to have paid Rs.35,000, at the time of execution of agreement while Rs.5,000 according to them, was agreed to be payable when the sale-deed was executed i.e. On 28-12-1992. The suit, as mentioned above, however, was filed on 21-4-1991 and it seems that same was brought in order to prevent the respondent No.1 from making gift of the aforesaid land in favour of her son Shoaib, respondent No.2, which process was stopped on account of interim injunction, procured by the petitioners in the suit. Anyhow, respondents denied the agreement to sell, being forged and fabricated; issues were framed; parties were put to trial; the petitioner No.1 himself appeared as P.W. 1, and examined P.W.2, who is the scribe of the agreement to sell and the receipt Exh.P.2, P.W.3 and P.W.4 are the real brothers of the respondents No.1 and real maternal uncles of the plaintiffs/petitioners, who are marginal witnesses. Besides the above oral evidence, agreement to sell in Exh.P.1 and the receipt is Exh.P.2. Learned trial Court, on the conclusion of the trial by giving findings on crucial Issues Nos.5 and 6, about the execution of the agreement to sell and the payment of consideration, allowed the suit, whereas on appeal filed by respondents, which has been accepted, the suit had been dismissed.
2. Learned counsel for the petitioners contends that P.W.3 and P.W.4, are the real brothers of the respondents and are also the marginal witnesses of the agreement to sell, who truthfully have stated the facts and circumstances, as to how, the agreement to sell was executed, part consideration of Rs.5,000 was passed on to the respondents and she executed the agreement to sell. It is further contended that possession ofthe property had also been delivered to the petitioners in part performance of the agreement to sell and resultantly, this also establishes the transaction of the sale between the parties. The Court of appeal, has decided the case on assumption of certain facts, which were not borne out of the record.
3. I am afraid, the above contentions have no force. This seems typical case, wherewith an object to deprive the sister of her .Right of inheritance, a forged agreement in collusion with P.W.3 and P.W.4, has been executed. Admittedly, the respondent No.1 is a Paradanashin lady she was married at the relevant time and has grown up children including Shoaib, respondent No.2 but none of the members of her immediate family has been shown as witness to the transaction. Thus in view of the law laid down in PLD 1990 SC 1, the strict, positive and independent evidence, should have been led by the petitioner to prove the execution of the agreement to sell and payment of consideration, which from the reading of the statements of Nawaz and Fazil P.W.3 and P.W.4, is not so established.
As far as the scribe P.W.2, is concerned, he concedes that he does not know the respondent No.1 personally, thus his statement in proof of the agreement to sell is of no much avail to the petitioners. Delivery of possession under the agreement has also not been proved because the fathers of the petitioners, have been in possession of joint khata of the inherited property, therefore, there is no physical change in possession brought about on account of alleged agreement to sell; which could lead to prove the sale agreement itself. It is also very strange that substantial amount of Rs.35,000 is alleged to have been paid when the agreement to sell was executed on 28-12-1989, yet for the meagre amount, the transaction was postponed for about three years, when it is claimed that balance amount of Rs.5,000 was payable on 28-12-1992 and the sale was to be completed. While the petitioners brought the suit on 21-4-1991, which is before the date of the alleged completion date between the parties. Obviously this was done so because the respondent No.1 intended to gift the property in favour of her son Shoaib, and she has also applied for the mutation and on learning of this, the petitioners immediately brought the present suit so as to prevent her from transferring the property in favour of her son.
In the light of above, I do not find any error in the factual findings recorded by the Court of appeal in the judgment and decree particularly in view of law laid down in PLD 1990 SC 1. This petition thus has no force and the same is hereby dismissed.
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