' This is the defendant's second appeal against the concurrent judgments and decrees dated 21- 12-1987 and 22-9-1988 of the learned two Courts whereby suit for specific performance filed by the respondents was decreed. It arises out of the following circumstances.
2. The case of the respondents- plaintiffs was that on 22-12-1978, the appellant agreed to sell her holding measuring 87 Kanals, 11 Marlas for a consideration of Rs.66,000, received an earnest money of Rs.36,000 and the balance sale consideration i.e. Rs.30,000 was to be paid up to 15-4-1979. Their case was that an amount of Rs.4,000 was received by the appellant on 22-12-1978 and another amount of Rs.4,000 was received on 9-1-1979. It was averred that the respondents came to the Tehsil Office on 15-4-1979, for completion of the transaction, waited for the appellant but she did not turn up. They made an application to the Tehsildar for being marked present.
3. The suit was contested by the appellant. A number of preliminary objections were taken.
Execution of the agreement to sell was admitted to the extent that there has been a writing but neither the witnesses had signed the said writing at that time nor the appellant had received any earnest money. It was averred that a Bank draft was given by the respondents to the brother of the appellant namely, Muhammad Rafique, but she had no knowledge of the purpose of the draft and the person who had received the money. It was further stated that appellant had received an amount of Rs.8,000 as the lease money.
4. Necessary issues were framed and the suit was tried. The learned trial Court found that agreement to sell was duly proved. However, as against the claim of the respondents to have paid Rs.44,000, the learned trial Court found a payment of Rs.40,000. Accordingly, vide judgment dated 21-12-1987, the suit filed by the respondents was decreed on payment of balance sale consideration of Rs.26,000. The appellant filed an appeal before learned District Court which was dismissed vide judgment and decree dated 22-9-1988. It may also be noted that the respondents had also filed cross-objections against the decree insofar as it directed the respondents to pay an amount of Rs.26,000 (instead of Rs .22,000).
5. This case was filed as civil revision on 2-11-1988. The office raised two objections. One, that Court- fee of Rs.4,952 was required to be paid and second that the revision petition was not maintainable.
The case was refiled on 16-2-1990 but the objection as to the Court-fee was not removed. The office again raised an objection and finally on 19-4-1992 the Court-fee was paid.
6. The above facts have been noted because the learned counsel for the respondents has raised a preliminary objection that this appeal is hopelessly barred by time. The appellant has, however, made an application under section 5 of the Limitation Act seeking condonation of delay which occasioned in refiling of this appeal. This application is being seriously contested.
7. The learned counsel for the appellant contends that in accordance with the statement of Shah Muhammad, one of the plaintiffs, who appeared as P.W.5, the earnest money of Rs.36,000 was paid through a bank draft in the name of the brother of the appellant which establishes that no sale consideration was paid to the appellant. It is further contended that in the garb of a lease deed, the respondents manipulated an agreement to sell which the appellant never intended to execute. As far as the delay in refiling of this appeal is concerned, he explained that the appellant was a Pardanasheen Lady and could not make arrangement for the amount of Court fee within time.
8. On the other hand, the learned counsel for the respondents-plaintiffs submits that execution of an agreement is a question of fact which stands concluded by concurrent findings of fact of the learned two Courts. He further submits that P.W.5 (one of the plaintiffs) had explained that it was on the asking of the appellant that the bank draft was prepared in the name of the appellant's brother. He further submits that execution of the agreement was even admitted in the written statement which was otherwise duly proved. He further contends that in accordance with para.14 of the impugned judgment, even the appeal before the learned District Court was barred by time and ,the said finding has not been challenged in this appeal.
9. The learned counsel for the appellant referred to para.1 of the appeal in which the impugned judgment has been attacked as against law and fact which, according to him, adequately meets the objection of the learned counsel for the respondents.
10. The submissions made by the learned counsel for the parties have been considered. In para.2 of the written statement, it was admitted that a sale agreement was written but it was not signed by the witnesses. She appeared as P.W.1 and admitted having signed the agreement. Read with the evidence of P.W.2, the son of scribe who was examined due to the death of the scribe, P.W.4, a marginal witness, to the agreement to sell, and the sworn testimony of one of the plaintiffs, execution of the agreement was duly proved. It may be stated that when a document is proved by a legal evidence, it is for the opposite side to rebut the said evidence which was totally lacking in this case. Perusal of the written statement shows that she had not pleaded that she signed the agreement as a result of fraudulent misrepresentation made by the respondents.
11. The evidence produced by the appellant has also, however, been examined by me. Khurshid Ahmed, D.W.1, stated that in his presence an amount of Rs.36,000 was paid by Shah Muhammad, plaintit1, through a cheque to Muhammad Rafiq, brother of the appellant, after settling the accounts of their business dealings. The appellant also came there and demanded lease money of Rs.8,000, however, the plaintiff paid a sum of Rs.4,000 and promised to pay the remaining Rs.4,000 after 10/15 days. He stated that in his presence no agreement was executed. D.W.2, also made a similar statement. Both of then stated that no agreement was written in their presence which is contrary to the averment in the written statement that an agreement was written and while appearing as D.W.3, the appellant admitted having signed the said agreement. Therefore, these witnesses could not be believed.
12. As far as the amount of Rs.36,000 is concerned, the appellant, in the written statement, took up the position that she had no knowledge about the purpose of the draft. However, her case at the trial was that Muhammad Rafique had business dealings with the respondents and the amount of the draft represented the sale price of wheat and paddy supplied by Muhammad Rafiq. This plea and the statements of D.W.1 and D.W.2 could not be considered in the absence of a plea in the written statement. The draft in the name of the brother of the appellant was adequately explained by one of the plaintiffs who appeared as P.W.5.
13. Whatever evidence was produced by the parties was duly considered. The matter stands concluded by concurrent findings of fact. This appeal in accordingly, dismissed with costs. In view of the above findings I do not consider it necessary to determine the question of limitation in refiling of this appeal before this Court or delay before the learned District Court.