' The petitioner filed a suit for specific performance of the agreement dated '7-10-1996 claiming that Muhammad Shaiif, the original owner, had agreed to sell the property fully detailed and described in the plaint against consideration of Rs. 1, 10,000. She paid a sum of Rs.90,000 at the time of execution of agreement to sell. Balance amount of Rs.20.000 was to be paid at the time of registration. The respondent entered appearance, filed written statement. The averments made in the plaint were denied. Issues . Were framed. Both the parties produced their respective evidence oral as well as documentary. The learned trial Court decreed the suit of the respondent on 14-7- 2001. The defendant preferred an appeal which came up for hearing before the learned Additional District Judge, who allowed the appeal and dismissed the suit of the petitioner vide its judgment and decree dated 2-2-2002.
2. The learned counsel for the petitioner contends that the agreement to sell Exh. P.1 was proved by the petitioner through the statements of the marginal witnesses P.W.2 and 3, who have fully corroborated the case of the petitioner.
3. Conversely, the learned counsel for the respondent controverting the arguments submitted that agreement to sell is a fake document. The agreement, Exh.P.1, was written on a stamp paper issued by P.W.4, who scribed the same. He was examined by the petitioner as her own witness but turned hostile. Hence, the petitioner badly failed to prove its execution.
4. I have considered the respective contentions of the learned counsel for the parties and perused thy record.
5. The controversy between the parties is confined only to the findings recorded by the learned Courts below on Issue No.2. Mst. Razia Bibi, plaintiff appeared as P.W.1. She stated that Sharif was the owner of the property in dispute, who had sold out the same to her against consideration of Rs.1,10,000. Out of consideration amount, a sum of Rs.90,000 was paid to him, who, had executed an agreement to sell written on a stamp paper. Balance amount of Rs.20,000 was to be paid at the time of registration of the sale deed. She claimed that the possession was delivered to her, whereafter, she raised construction of a house. In cross- examination, she stated that she had purchased vacant site from Sharif, on which, she had built a residential house. She has raised construction after two months of, the execution of the agreement. According to her, Tariq was the Mason, who constructed the house. Bashir, Stamp vendor, P,W.4 was not known to her and was introduced by Muhammad Sharif, the. Vendor. She stated that at the time of execution of the agreement, Sharif was living with her. Stamp paper was purchased from Bashir Ahmad, Stamp vendor and was written on the same day. She denied the suggestion from the respondent that, in fact, Sharif had raised construction of residential house of his own. She also denied the suggestion that after the death of Sharif a false and fabricated agreement was prepared. Muhammad Ashraf, marginal witness of Exh.P.1 appeared as P.W.2. He is a witness of agreement to sell, on execution of which, a sum of Rs.90,000 was paid to the vendor. In cross-examination, he stated that Sharif had purchased the property in dispute, when it was in the shape of 'Kilo11' and a room, with Katcha construction. He also admitted that Sharif was living in the said room. He denied that Sharif expired in the disputed house and instead stated that he expired in the house of Mst. Razia Begum. He, however, stated that Sharif was living in the disputed premises but was provided meals by the petitioner. He denied the suggestion that Sharif had demolished the structure and raised new construction. He stated that Mst. Razia Bibi had raised construction of her own. Earnest amount of Rs.90,000 was paid to the vendor at the time of execution of the agreement by the stamp vendor.
He conceded that he was not present when the bargain took place. Mst. Razia Bibi got constructed house in a period of two months. Construction was raised by Mason namely Tariq. Abdul Sattar is another marginal witness, who appeared as P.W.3 and stated that the agreement was executed in the Court premises at Gujranwala. The vendor Sharif thumb marked the agreement. The petitioner is paternal aunt. He admitted that Sharif had died in the disputed house. He also stated that the transaction took place in the house of Sharif. Bashir Ahmad, stamp vendor/scribe of the agreement P.1 appeared as P.W.4. He stated that the stamp paper of Exh.P.1 was not issued by him. It is not signed by him. He was declared hostile by the petitioner and cross-examined. He denied his seal and signature on Exh.P.1. He concedes that on the document his licence number and name is written with seal but the same is not his seal. He denied his writing on overleaf of Exh.P.1. In cross- examination to the respondent/defendant, he stated that the agreement Exh.P.I is a forged and fabricated one. Tariq Mehmood appeared as P.W.5 and stated that the disputed house was constructed by him at the instance of the petitioner. In cross-examination, he stated that he has acquaintance with Sharif vendor. He denied the suggestion that the material of the hosue was supplied by Sharif and all the expenses on the construction were also borne by him.
6. Imam Din appeared as D.W.1. He stated that after demolition of the old structure of the house Muhammad Sharif raised construction in the year 1997. He died in the year 1998. The petitioner in his absence forcibly took the possession of the house in dispute and thereafter prepared a false and fabricated agreement to sell. In cross-examination, he stated that forcible possession of the house was obtained by the petitioner after breaking open the lock. In cross-examination, he admitted that Tariq P.W.5 had constructed two rooms at the site. Bashir Ahmad has appeared as D.W.2. He stated that the old structure of the house was demolished by Muhammad Sharif, whereafter he raised construction.
7. The learned Additional District Judge reversed the judgment of the learned trial Court for the reasons firstly that Exh.P.1, agreement to sell was not proved on record. Secondly, the author of the document has not supported the petitioner. It was also observed that in the agreement, it was stated that the property was being sold out as he needed money due to ailment of his son. In the same agreement, at another place, it was mentioned that the executant has no relative. The learned Appellate Court was wrong in observing that he needed money for treatment of his son. In memo. Of appeal no ground was taken. So is the case in written statement and evidence. The word {{URDU TEXT}}recorded in Elch.P-1 is not fitting in the circumstances. Had it been {{URDU TEXT}}the sentence would not E have been used in that manner. I reproduce for sake of facility {{URDU TEXT}} Reading shows that executant stated of his own sickness, particularly when both the parties admit him to be issueless.
8. The agreement Exh.P.1 was proved through the statements of the marginal witnesses P.W.2 and P.W.3. The stamp vendor P.W.4 has not supported the agreement. He stated that neither stamp paper was issued nor it was scribed by him. The petitioner declared him hostile and cross- examined him.
9. It is admitted by both sides that the-construction on the disputed premises was raised by Muhammad Tariq, who stated that he constructed the disputed premises at the instance of the'Petitioner, who had paid amount for construction and borne expenses.' The possession of the petitioner in the disputed premises is not denied by the respondent but alleged that possession was taken by force. However, he has not reported to any authority for' the alleged forcible possession by the petitioner of the premises. The petitioner is in possession of the property in dispute. She raised construction through P.W.5. In absence of agreement to sell it is not conceivable that she would have gone for raising of construction on the premises. Cumulative effect of the evidence proves execution of the agreement to sell (Exh.P.1) by Sharif in favour of the petitioner.'
10. In view of the above discussion, this civil revision is allowed, the impugned judgment of the learned Additional District Judge is set aside and that of the learned trial Court is restored.