1. ' MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/appellant filed a suit on 31-3-1991 for specific performance, declaration and permanent injunction. It was averred that defendant Mst. Tajamal Begum/respondent No,4 (the mother of defendants minor/respondents Nos.1 to 3) entered into an agreement to sell on 2-12-1990 with the plaintiff/ appellant for the sale of the land measuring 65 Kanals, 7 Marlas of the minors, defendants/respondents Nos.1 to 3 for a consideration of Rs,2,00,000.
2. Rs,50,000 were paid as earnest money. The remaining amount was to be paid at the time of the registration of the sale-deed. Rapt Roznamcha Waqiati No,139 was entered on 20-12-1990. Mutation No,319 was entered on which the signatures of the defendants were obtained. The Government dues were paid but the Revenue Officer declined to attest the mutation on the ground that Mst.
3. Tajamal Begum had denied the receipt of the sale consideration. Defendant No,4, the mother of the minors executed an acknowledgement and an affidavit on 7-2-1991 acknowledging the receipt of Rs,2,00,000 as sale consideration. Subsequently the defendants/ respondents 1 to 4 sold the suit- land to defendants/respondents 5 to 8 vide Mutation No,324 attested on 11-2-1991. The order passed on Mutation No,319 was illegal and liable to be set aside and the Mutation No,324 was also ineffective upon the rights of the plaintiffs.
4. ' The suit was resisted by the defendants. The minors filed the written statement stating that their mother was not authorized to enter into the alleged agreement dated 2-12-1990 and that she had not obtained permission from the Guardian Judge for the sale of the land in dispute and the defendants also reserve the right of challenging the Mutation No,324 in favour of defendants 5 to 8.
5. Mst. Tajamal Begum, defendant/respondent No,4 filed the written statement denying the execution of the alleged agreement to sell and that the same was based upon fraud. The Rapt Roznamcha Waqiati 139 was also based on fraud and misrepresentation. The defendants/respondents 5 to 8 also filed their separate written statement alleging that the Mutation No,324 attested on 11-2-1991 was rightly sanctioned in their favour.
6. ' Out of the pleadings of the parties following issues were framed:--
(1) Whether the defendant No,4 agreed to sell the property of defendants Nos.1 to 3 (minors) as guardian to the plaintiff for a consideration of Rs,2,00,000 received a sum of Rs,50,000 as earnest money? OPP
(2) Whether the Mutations Nos.319 and 324 in favour of defendants Nos.5 to 8 are illegal, against facts and ineffective upon the rights of the plaintiff? OPP
(3) If the above issues are proved in affirmative, whether the plaintiff is entitled to decree of specific performance of the contract dated 2-12-1990? OPP
(4) Whether the defendants Nos.7 to 8 are minors and the suit is not maintainable without appointing the guardian ad litem? OPD
(5) Whether the suit is hit by Order XXIII of the C.P.C.? OPD
(6) Whether the plaintiff is estopped to bring this suit by his act and conduct? OPD
(7) Whether the suit is false and baseless and the defendants are entitled to special costs under section 35-A of the C.P.C.? OPD (7-A) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction?
7. OPD 1 to 4.
8. (7-B) Whether the suit is not maintainable in its present form? OPD 1 to 4.
9. (7-C) Whether the plaintiff has not come to the Court with clean hands? OPD 1 to 4.
(8) Relief.
10. ' The learned trial Court after recording the evidence of the parties dismissed the suit of the plaintiff/appellant vide judgment dated 11-3-1996. The appeal before the learned Additional District Judge, Narowal also failed on 9-4-2001.
2. Learned counsel for the appellant contended that once the Revenue Officer obtained the signatures of the vendor on the mutation he could not decline to sanction Mutation No,319, he argued that the payment of Rs,2,00,000 is proved vide Rapt Roznamcha Waqiati, Exh.P.1, the acknowledgement dated 7-2-1991, Exh.P.2 and affidavit Exh.P.3. If the Rapt Roznamcha Waqiati bears the signatures of the witnesses it becomes an agreement between the parties. Reliance was placed on Muhamad Yousaf and others v. Muhammad Younas and others (1995 CLC 1780). He further argued that the thumb-impression and signatures of Mst. Tajamal Begum were not confronted. He urged that it was badly conducted case. The Court should have summon Mst.
11. Tajamal Begum and confronted her with the documents Exh.P.1 to P.4 bearing her signatures/thumbimpression. Reliance was placed on Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730) and Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822). Lastly he argued that where the cases are badly conducted the Court is not absolved of his duty. The application C.M. No,1/C/2002 of the appellant for production of additional evidence by summoning Mst. Tajamal Begum should be allowed.
12. ' Conversely the learned counsel for the respondent defended the impugned judgment stating that the payment of sale consideration was not proved and that the testimonies of the P. Ws. Were full of contradiction.
3. I have gone through the judgment of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. Mutation No,319, Exh.P.7 entered in favour of the plaintiff/petitioner reveals that it was not attested by the Revenue Officer on 2-2-1991 because Mst.
13. Tajamal Begum denied the receipt of Rs,2,00,000, the sale consideration nor she had admitted the transfer of possession. In order to cover up the matter the Rapt Roznamcha Waqiati, Exh.P.1 was entered on 20-12-1990. It does not help the appellant as it does not prove the receipt of Rs,2,00,000.
14. It merely states that the land measuring 65 Kanals, 7 Marlas had been sold for a consideration of Rs,2,00,000. The acknowledgement/ Iqrarnama, Exh.P.2 was allegedly executed by Mst. Tajamal Begum on 7-2-1991 acknowledging the payment of Rs,2,00,000 Similarly the affidavit Exh.P.3 to the same effect was also prepared. Muhammad Boota and Muhammad Sharif are the marginal witnesses of the acknowledgement, Exh.P.2. Rana Rehmat Ullah, Advocate is the scribe of the same.
15. Rana Rehmat Ullah appeared as P.W.2 and admitted in cross-examination that the sale consideration was not paid in his presence. Muhammad Boota appeared as P.W.4 and only stated that Exh.P.2 was written in his presence by Rana Rehmat Ullah on which Mst. Tajamal Begum had put her thumb-impression. He has not said a word about the payment of sale consideration. The other marginal witness Muhammad Sharif was not produced. Affidavit Exh. P.3 was attested by Notary Public and not by the Oath Commissioner. Muhammad Bashir, the marginal witness of Rapt Roznamcha Waqiati, Exh.P.1 deposed that Rs,1,50,000 were paid by Abbad Ali to Patwari who handed over the same to Mst. Tajamal Begum. The other witness Muhammad Sharif of the same document has not been produced. The document Exh.P.1 does not show that the sale amount was paid. It only states that the land measuring 65 Kanals, 7 Marlas had been sold for a consideration of Rs,2,00,000. It is astonishing that Rs,1,50,000 were paid but no receipt was obtained from Mst.
16. Tajamal Begum. The argument of the learned counsel that Roznamcha Waqiati when signed by the witnesses becomes an agreement to sell goes by the board in view of the aforementioned facts. It has not been proved as per the requirement of the Qanun-e-Shahadat Order, 1984. The appellant has been contending throughout that Mst. Tajamal Begum had received the entire consideration but no effort was made in summoning her and getting her alleged signatures/thumb-impression on Exh.P.1 to Exh.P.3 compared with her genuine signatures by a Handwriting Expert or Finger Print Expert. It was for the appellant to get her summoned and confront her with the alleged documents, Exh.P.1 to P.4. The case Sikandar Hayat and 4 others v.
17. Master Fazal Karim (supra) is not applicable to the facts of the instant case. In the case Khurshid Ali and 6 others v. Shah Nazar (supra) relied upon by the learned counsel for the petitioner, the learned trial Court had committed an error in not summoning the original register. In my view the said case is also not applicable to the facts of the instant case.
18. ' The appellant has moved C.M. No,1/C/2002 under Order XLI, rule 27, C.P.C. For summoning Mst.
19. Tajamal Begum, respondent No,4 in person for recording her statement by way of additional evidence. In reply to the said application the respondents 1 to 4 have admitted the receipt of "price of land measuring 65 Kanals, 7 Marlas" and have prayed that they have no objection to the acceptance of the appeal in favour of appellant. I am afraid the plea taken by the respondents 1 to 4 is contradictory to the written statement, appears to be afterthought and collusive with the appellant. In this view of the matter C.M. No,1/C/2002 has no merit and is dismissed.
4. For what has been stated above this appeal has no merit and is dismissed leaving the parties to bear their own costs.