JAWWAD S. KHAWAJA, J.---Ahmad Bukhsh petitioner/defendant impugns the appellate judgment and decree dated 26-5-2003, whereby the decree of the learned trial Court dated 26-1- 1995 has been reversed and as a result, the suit filed by the respondents/plaintiffs seeking specific performance of agreement (Exh.P.1) dated 11-6-1990 has been decreed.
2. The case of the respondents/plaintiffs was that the petitioner had executed the agreement (Exh.P.1) with the object of selling the suit-land measuring 5 Kanals, 5 Marlas to them. This assertion was denied by the petitioner, who admitted that the signatures on Exh.P.1 were his, but denied that there was any bargain to sell the land to the respondents/ plaintiffs. According to the petitioner, he had agreed to give the land on lease to the respondents for a three years period and it is for this reason he had put his signatures on three papers which were blank. It was his case that these papers had been utilized by the respondents for fabricating the agreement to sell (Exh.P.1) and two receipts (Exh.P.2) dated 11-6-1990 for Rs.30,000 and Exh.P.3 dated 17-9-1990 for a sum of Rs.20,000.
3. Based on the pleadings of the parties, the learned trial Court framed as many as 8 issues.
However, the crucial issues, which are dispositive of the case, are Issues Nos.1 and 3, which were decided together by the learned trial Court.. These issues were framed in the following terms: "(1) Whether the defendant executed agreement dated 11-6-1990 and having received sale price of Rs.50,000 delivered the possession of land to the plaintiffs? OPP
(3) Whether the plaintiffs have no cause of action? OPD"
4. The respondents/plaintiffs examined as many as nine witnesses while the petitioner alone appeared to deny the agreement to sell. The learned trial Court has exhaustively examined the available evidence while concluding that the respondents/plaintiffs had failed to prove their case, It was noted by the Court that the document (Exhs.P.1, P.2 and P.3) were prepared in the office of Khan Manzoor Hussain Khan Baloch, Advocate. Muhammad Ramzan son of Ghulam Muhammad, who appeared as P.W.3, is a marginal witness of the agreement (Exh.P.1) and the receipt (Exh.P.2). It is important, and this fact was duly noted by the learned trial Court that he is a resident of Chak No.704/46 of Tehsil Kamalia, while his address given on Exh.P.1 and Exh.P.2 is that of Tehsil Jhang where the suit-land is located. In his cross-examination, P.W.3 admitted that he was never a resident of Mauza Kunnal, Tehsil Jhang. This fact was material for the purpose of assailing the veracity of the witness. Added to this, was the fact that P.W.3 is the nephew (Bhateeja) of Khan Manzoor Hussain Khan Baloch, Advocate, mentioned above. The circumstances, which have been duly considered by the learned trial Court, have not even been discussed in the appellate judgment.
5. The learned trial Court next scrutinized the agreement (Exh.P.1) closely. It was noted that there was an unexplained and significant gap between the end of the agreement and the signatures of the petitioner. This circumstance was rightly construed as lending credence to the stance adopted by the petitioner that the document was blank when he affixed his signatures on it. Unfortunately, the learned Appellate Court has not discussed this aspect of the case and the reasoning adopted by the learned trial Court.
6. Thirdly, the learned trial Court has noted the endorsement of the stamp vendor on the back of the agreement (Exh.P.1). This endorsement simply notes that the stamp is to be used for an Iqrarnama without indicating if it is for sale of land or a lease. An inference has been drawn by the learned trial Court that this endorsement supports the case set up by the petitioner. This aspect of the record has also not been commented upon by the learned Appellate Court.
7. The learned trial Court next took up the receipt (Exh.P.3), whereby the respondents purportedly paid the balance amount of Rs.20,000 to the petitioner. Saleh Muhammad (P.W.7), who was examined by the respondents/plaintiffs as a marginal witness to Exh.P.3, deposed that the amount of Rs.20,000 was not paid in his presence. The learned trial Court, therefore, held that the receipt (Exh.P.3) had not been proved. The learned Appellate Court has also come to the same conclusion.
On this score, the case set up by the respondents/plaintiffs that they had paid the entire consideration, including the sum of Rs.20,000 mentioned in the receipt (Exh.P.3), has not been established.
8. The learned trial Court has next noted the contradiction in the testimony of the plaintiff Salabat and his two witnesses, namely, Muhammad Ramzan (P.W.2) and Muhammad Ramzan son of Ghulam Muhammad (P.W.3). The respondent/plaintiff, namely, Salabat appeared as P.W. And testified that the bargain of sale was struck in the presence of P.W.2 and P.W.3. These P.Ws.
However, deposed that they were not present at the time of the bargain. This material discrepancy in the evidence of the P.Ws. Has also not been dealt with by the learned Appellate Court.
9. Likewise, there are other deficiencies in the evidence led by the respondents/plaintiffs, which have been noted in paragraph 8 of the judgment of the trial Court, but have not been considered by the learned Appellate Court and nor has any reason been given for rejecting the reasoning adopted by the learned trial Court.
10. In addition to the above, there is a very material aspect of the case which appears not to have been argued before the learned Courts below. The agreement (Exh.P.1) recites that possession of the suit property was delivered to the respondents/plaintiffs at the time of execution of the said agreement against receipt of a sum of Rs.30,000. There is nothing on record to explain the reason for delivering possession of the suit property when a substantial part of the agreed consideration had yet to be paid. Furthermore, the falsity of the case set up by the respondents/plaintiffs is brought out from the receipt (Exh.P.3) dated 17-9-1990. As noted above, both Courts below have held that this receipt has not been proved. Learned counsel for the respondents was asked to explain why a sale-deed had not been obtained by the respondents when they allegedly paid the balance amount of Rs.20,000, mentioned in the receipt (Exh.P.3). He was unable to give any satisfactory reason for this circumstance. This circumstance is against the normal course of conduct and, therefore, undermines the credibility of the case set up by the respondents/plaintiffs.
11. In view of the foregoing discussion, I find the impugned appellate decree to be a result of a material irregularity in the exercise of the Appellate Court's jurisdiction. The appellate decree is, therefore, set aside. As a consequence, the decree of the learned trial Court, dated 26-1-1995 stands restored.
12. The petitioner shall also be entitled to his costs throughout.