' MIAN SAQIB NISAR, J.---The appellants/plaintiffs, in a suit for specific performance succeeded in obtaining a decree at the trial stage on 21-3-1994; but on appeal of respondents Nos.3 to 10, which was accepted, the judgment and decree of the trial Court has been set aside and their suit stands dismissed; hence this appeal.
2. Briefly the facts of the case are, that the appellants on 4-11-1985, brought a suit for the specific performance, claiming that defendant No.2, through defendant No.1, as an attorney, had agreed to sell the suit-land, vide agreement dated 3-7-1983 (Exh.P3), measuring 203 Kanals, 3 Marlas, situated in Chak No.186, Tehsil Chiniot, District Jhang, for a total consideration of Rs.1,38,000, and had received the total price, vide receipt Exh.P2, therefore, the plaintiffs are entitled to seek the decree for specific enforcement of the agreement. Originally, Respondents Nos.3 to 10 were not impleaded as a party, but as they had purchased the suit-land during the pendency of the suit, vide oral sale Mutation No.196, dated 29-1-1986, resultantly, they were arrayed as the defendants.
Defendant No.1, who is the attorney of defendant No.2, and allegedly had executed the sale agreement, conceded the suit. But, defendant No.2 resisted the matter, claiming that the agreement to sell is forged and ante-dated, and further that he had revoked the authority of defendant No.1, vide revocation deed dated 18-3-1985, defendants Nos.3 to 10, besides denying the valid execution of the sale agreement, claiming it to be based upon fraud and forgery, also set out the defence of being the bona fide purchasers of the suit property. On account of the pleadings of the parties, the following important issues have been framed:--
2. Whether the plaintiffs are estopped by their act and conduct to bring the suit? OPD
6. Whether defendant No.2 made an agreement to sell through Defendant No.1 dated 3-7-1983 for a sum of Rs.1,38,000 and received the amount Rs.1,38,000 from the plaintiffs? OPP
7. Whether defendants Nos.3 to 10 through Mutation No.196 dated 29-1-1986 are bona fide purchasers of the suit-land for the value without any notice of agreement dated 3-7-1983, as mentioned in the plaint? OPD-3 to 10.
9. Whether the plaintiffs are entitled to the decree of specific performance of agreement dated 3- 7-1983, as mentioned in the plaint? OPP ' The parties led their oral as well as documentary evidence. The appellants examined P.W.1/Rai Muhammad Abdullah, who was defendant in the case and supported the plea of the appellants by admitting the execution of the agreement to sell and the receipt of the sale consideration; E.W.2/Muhammad Aslam, is the alleged marginal witness, whereas P.W.3/Said Ahmad, is the son of Ahmad, another marginal witness, who by that time had died, P.W.4/Abdullah, is a witness asserting that respondents Nos.3 to 10, had the knowledge of the agreement to sell between the appellants and defendant No.2, through defendant No.1, P.W.5/Ghulam Murtaza, is the scribe of Exhs.P.2 and P.3, the receipt and the agreement to sell, and P.W.6 is the appellant No.1 (Plaintiff No.1).
The documentary evidence brought on the record is the registered power of attorney, executed by defendant No.2 in favour of defendant No.1 as Exh.P.1, Exh.P.2 is the receipt envisaging the payment of Rs.1,38,000, Exh.P.3 is the disputed agreement to sell, whereas Exhs.P.4 to P.6 are the copies of the register Haqdaran Zamin. As against the above, defendant No.1 made a confessional statement and appeared before the Court as a witness of the appellants in support of their case, whereas the evidence of defendant No.2 was closed by the learned trial Court, by applying the provisions of Order XVII, rule 3 C.P.C. However, the contesting Defendants Nos.3 to 10 (respondents Nos.3 to 10), examined Muhammad Nawaz/defendant No.3 as D.W.1, Mali son of Bhai Khan as D.W.2 Amir son of Muhammad Khan as D.W.3, Wajid Ali son of Nazar Muhammad as D.W.4 and Bulanda Khan son of Khan Muhammad as D.W.5; they brought on the record Exh.D.1, Mutation No.196, dated 28-1-1986 pertaining to their sale, Exh.D.2 is the Mutation No.151, dated 18-12-1974, through which the appellants earlier claimed the sale by Defendant No.2 in their favour, but that was subsequently reviewed by the Revenue authorities; Exhs.D.3 and D.4, are the mutations of some exchange of the land, whereas Exh.D.5 is the copy of the application for the cancellation of the Mutation No.151, filed by some third party, on which the D.C. Had passed the order reviewing the mutation as Exh.D.6; Exh.D.7 is the plaint of the suit, through which the appellants challenged the order of the D.C.; Exh.D.8 is the written statement of defendant No.2, filed through the same attorney; Exh.D.9 is the statement of the counsel for the appellants to withdraw the suit; Exh.D.10 is the order of the Court dismissing the suit as having been withdrawn, and Exh.D.11 is the Khasra Girdawari, showing that respondents Nos.3 to 10 are in possession of the suit property.
3. On the conclusion of the trial, the learned Civil Judge, by returning his findings on Issues Nos.6 and 9, came to the conclusion that the agreement to sell in favour of the appellants has been validly proved; it is a genuine document, not suffering any vice of forgery or being antedated; on Issue No.7, the findings were returned against respondents Nos.3 to 10, holding that they are not the bona fide purchasers; besides, on Issue No.2, the view of the learned trial Court is against the respondents and in favour of the appellants, concluding that the appellants are not estopped by their conduct. The judgment and decree, dated 21-3-1994, of the learned trial Court, was assailed by the appellants, through an appeal, which has been accepted; the findings On the relevant issues, which had favoured the appellants, had been reversed by the learned Court of appeal, with the result that the suit has been dismissed; hence this appeal.
4. Learned counsel for the appellants contends, that it is an admitted position on the record, that defendant No.1 was the general attorney of defendant No.2, at the time of the execution of the agreement dated 3-7-1983, and therefore, when he has conceded the claim of the appellants, no further proof of the agreement to sell was needed, as the admission of the executant was enough in this regard. It is stated, that against the judgment and decree of the learned trial Court, defendants Nos.1 and 2, had not filed any appeal, which had attained finality. It is also argued, that defendant No.2 was given ample opportunities to produce his evidence, but he failed, and thus, by applying the provisions of Order XVII, rule 3, C.P.C., his evidence was closed; however, still he could have been examined as a witness by defendants Nos.3 to 10, but this was not so done; the provisions of Order II, rule 2, Order XXXIII, rule 1, C.P.C., were inapplicable to the facts and circumstances of the case, because the earlier suit filed by the appellants, was based upon altogether a different cause of action, in which an order of the D.C., dated 28-4-1977, reviewing the Mutation No.151, was challenged; whereas in this case, the appellants were seeking the enforcement of the agreement to sell. It is also submitted, that as the respondents Nos.3 to 10, have purchased the property, vide Mutation No.196, dated 29-1-1986; this admittedly was done during the pendency of the suit for the specific performance, and also when an injunctive order by the Court in favour of the appellants, preventing the sale by respondent No.2 was operative, therefore, for both the reasons, they cannot claim the protection under section 41 of the Transfer of Property Act, 1882, being the bona fide purchasers. It is further argued, that in their written statement, defendants Nos.3 to 10, had never taken the plea that the suit of the appellants was barred either under the provisions of Order II, rule 2 or Order XXXIII, rule 1, C.P.C.
5. Heard. The key issue involved in the matter is No.6. In order to prove the valid execution of the agreement to sell and the payment of the price, the appellants have examined the attorney/Rai Muhammad Abdullah, P.W.1, who also is the defendant of the case; he is the same person against whom the respondents have alleged a fraud and forgery, that he along with the plaintiffs of the case is instrumented in preparing the ante-dated sale agreement. I have considered his statement, which is not much confidence-inspiring and even otherwise being a party to the litigation much evidentiary value cannot be attached thereto. P.W.2/Muhammad Aslam, an alleged marginal witness, has simply stated that the agreement to sell was read over to Rai Muhammad Abdullah (P. W. 1), who signed it in his presence; he has not given the exact date as to when the agreement was so executed. In the cross-examination, P.W.2 states that he was not called by the plaintiffs to attest the document, but was per chance present in the Tehsil and that Ghulam Hussain and Rai Abdullah both met him and required him to witness the document; further in his cross-examination he admits of being acquainted to the plaintiffs for the last 15/20 years; he deposed that the stamp paper was purchased from Alamgir and that the stamp papers amounting to Rs.3 each were purchased. P.W.4 is the scribe of he document, but from his statement it is not established, if the document was written on the date when it is purported to be executed; he has failed to produce his Register Waseeqa Naveesi, one brought by him belongs to Riaz Hussain, this register is unbounded and various pages and serial numbers are missing. He concedes in the cross-examination, that he is not a registered Waseeqa Navees, and I am not convinced if the appellants have been able to prove the execution of the agreement to sell through this witness on the particular date. The other marginal witness is stated to have died, his son has appeared and identified the signatures of his father but without proving the date of the execution.
In my view, the most important record in this case was the record of the stamp vendor about purchase of the stamp paper, on which the agreement to sell has been executed, however, for no good reasons the same has not been produced and the learned counsel for the appellants has failed to give any reason for this omission. Moreover, from the receipt Exh.P.2, the validity and genuineness of the agreement to sell is critically shadowed; this receipt contains eight adhesive stamps of two annas.
Admittedly, on 25-1-1985, when the receipt of the agreement is alleged to have been executed, these stamps were not in vogue. This knocks the bottom out of the case of the appellants.
6. As the appellants had failed to prove the valid execution of the agreement on the particular date i.e. 3-7-1983, therefore, they were not entitled, as rightly held by the learned Appellate Court, to the decree for the specific performance, thus, on this account the appeal is dismissed. However, because of the decision on the key question, I do not find appropriate to dilate further upon any other issue in the matter. The Court after proper analysis of evidence on record---In appeal against acquittal, interference would be made only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice-When accused was acquitted from the charge by a Court of competent jurisdiction, then double presumption of innocence would be attached to its order, with which Superior Courts would not interfere, unless impugned order was arbitrary, capricious, fanciful and against record.