' MUHAMMAD KHALID ALVI, J.---With the concurrence of learned counsel for the parties this case is being treated as Pacca case.
2. Brief facts of the case are that respondents Nos.1 and 2 filed a suit for specific performance of agreement against respondent No.3 and the present appellants on the basis of a written agreement dated 19-6-1996. According to the terms of the agreement, predecessor-in-interest of the appellants and respondent No.3 namely Faqir Muhammad had entered into an agreement to sell of the property in dispute with respondents Nos.1 and 2 in consideration of Rs.20,00,000, Rs.18,00,000 were paid as earnest money and the balance was to be paid at the time of registration, for which last date was fixed as 20-7-1996. Unfortunately, Faqir Muhammad died issuless on 15-7-1996 leaving behind respondent No.3 as his widow while the present appellants are his real sisters, the only legal heirs.
3. Respondent No.3 filed conceding written statement, while present appellants contested the suit with a total denial of the execution of the disputed agreement and receipt of money by Faqir Muhammad deceased. Necessary issues were framed by the learned trial Court. After recording evidence of the parties, the learned trial Court vide judgment and decree dated 27-3-1999 decreed the suit. It was challenged by the present appellants. Their appeal also stood dismissed vide judgment and decree dated 16-4-2005. Both these judgments and decrees are being assailed through the instant appeal.
4. It is contended by the learned counsel for the appellants that bare perusal of signatures of Faqir Muhammad deceased on Exh.P.1 and Mark-A with naked eye makes it abundantly clear that all the three signatures are different. It is further argued that P.W.3 Muhammad Yaqoob claimed himself to be Faqir Muhammad's sister's son in the examination-in-chief, while in cross-examination he claimed himself to be brother's son of Mst. Biran, therefore, he has claimed two different relations without reconciling them with each other. It is next argued that payment of earnest money is not proved inasmuch as P.W.1 one of the plaintiffs and P.W.2 one of the marginal witnesses have stated that payment was made a day before the execution of the agreement while P.W.3 another marginal witness stated that settlement was arrived at 2/4 days before making the payment. It is next argued that P.Ws. Nos.2 and 3 both are not residents of the village. They were summoned from outside to manufacture the impugned agreement to sell. No witness from the village was associated for the said transaction. It is also argued that no receipt of payment of earnest money was prepared and produced. It is further argued that a substantial amount of Rs.18,00,000 is stated to have been received by deceased Faqir Muhammad but his two accounts in two different banks show that the said accounts contained round about Rs.30,000 each. It is also argued that respondent No.3 Mst. Biran, who is real aunt of respondents Nos.1 and 2, had filed conceding written statement in favour of respondents Nos.1 and 2 without disclosing the fate of the earnest money.
5. On the other hand, learned counsel for respondents contends that in the written statement the appellants had made evasive denial but have not categorically denied that Faqir Muhammad had not signed Exh.P.1 and Mark-A. It is further argued with reference to statement of D.W.4, who admitted that on account of the fact that property in dispute was given by father of Faqir Muhammad to him excluding the appellants/plaintiffs, there existed enemy between Faqir Muhammad on the one hand and the appellants on the other. In this regard he has also referred to Exh.P.3 which is a decree sheet to contend that appellants along with others had filed a civil suit against Faqir Muhammad which was ultimately dismissed. In the same line it is further submitted that one of the appellants namely Mst. Rehmat Bibi while appearing as D.W.6 categorically denied of having filed any suit against her brother Faqir Muhammad, which is falsified by Exh.P.3. It is further submitted that had respondent No.3 been in league with respondents Nos.1 and 2 then' she should have at least contested the suits filed by the appellants before the revenue hierarchy for possession and share of produce but she never joined hand with respondents Nos.1 and 2 in those proceedings. It is further submitted that P.W.3 Muhammad Yaqoob is sister's son of Faqir Muhammad deceased and the appellants, from one of the other three sisters.
6. I have considered the arguments of the learned counsel for the parties.
7. Admitted facts are that respondent No.3 being wife and the appellants being real sisters of deceased Faqir Muhammad A were entitled to inherit his property. Faqir Muhammad and Mst. Biran were issueless. Muhammad Ashraf plaintiff is a sister's son of Mst. Biran respondent No.3 and Amir Alam plaintiff is his (Muhammad Ashraf) Paternal Uncle's son ( { URDU TEXT} ).
8. In order to establish the execution of sale agreement Exh.P.1, and payment of earnest money, one of the plaintiffs Muhammad Ashraf appeared as P.W.1 while its marginal witnesses Zulfiqar and Yaqoob were produced as P.W.2 and P.W.3. Mushtaq Ahmad, stamp vendor who is also scribe of the document appeared as P.W.4. P.W.4 Mushtaq Ahmad stated that the stamp (Exh.P.1) was sold by him at Sr.No.6209 on 19-6-1996. He had also placed on record a photocopy of his Register (Mark-A) from Sr.No.6196 to 6218. Sr. No.6196 contains the date of 19-6-1996 which clearly indicates that it was changed from 20-6-1996 to 19-6-1996 by overwriting. The dates for the rest of the Serial Numbers up to 6207 on the said page are merely ditto marked. On the next page again the date against Sr. No.6208 is 19-6-1996 which apparently looks to have been changed from 20-6-1996. The subsequent dates up to Sr. No.6211 are ditto marked. Against Sr.No.6212 the date is mentioned as 20-6-1996. In this entry of date the year 1996 appears to have been written on the ditto mark. This analysis of this document clearly establishes that the disputed entry made against Sr. No.6209 is a forged entry.
9. Plaintiffs admittedly are Nephews of Mst. Biran, who had a strong reason to support them so as to deprive the appellants from the property being sisters of her deceased husband {{URDU TEXT}}Although, she had filed a conceding written statement including the fact of receipt of Rs.18,00,000 as earnest money by deceased Faqir Muhammad but she failed to account for the said amount, nor she never turned up after filing her written statement. It has come on record through the statements of D.W.1 Riaz-ul-Haq and D.W.5 JAffar. Iqbal, Bank Officers that deceased Faqir Muhammad was having a balance of Rs.33,435 and Rs.33,513 in two different bank accounts at the time of his death. Meaning thereby that the said amount, if paid to him, had not gone to his two accounts. The only other possibility could be that he might have invested the said amount somewhere or it was laying in his house where Mst. Biran last resided with him but silence of Mst.
Biran to these aspects and mere support to the plaintiffs speaks volumes about the payment of said earnest money.
10. P.Ws. 1 and 2 have stated that transaction had taken place along with payment of earnest money a day before the execution of Exh.P.1 While P.W.3 stated in cross-examination that payment was made 2/4 days after the settlement of transaction. P.W.1/plaintiff stated in his cross- examination that he paid a sum of Rs.8,00,000 cash to Faqir Muhammad while Rs.9,00,000 was paid by the other plaintiff. The total comes to Rs.17,00,000 which is deficit by Rs.1,00,000 for which there is no explanation in his statement. The other P.Ws. Have not stated that both the plaintiffs had made separate payment of their respective shares, rather they have talked the consolidated payment of Rs.18,00,000. It is also an admitted fact that no receipt of payment of a huge amount of Rs.18,00,000 was obtained from Faqir Muhammad. No respectable of the illage was associated either to the transaction or to the payment of earnest money. P.W.2 Zulfiqar is a resident of Faisalabad and has no relations residing in Chak No.407 of Toba Tek Singh. He failed to show any plausible reason to be there on the said occasion. P.W.3 Muhammad Yaqoob, claimed that Faqir Muhammad ----deceased was his maternal uncle. Meaning thereby that he is son of one of the sisters of Faqir Muhammad. He has not disclosed the name of his mother but admittedly he is not son of either of the three appellants. Meaning thereby that he could be son of anyone of his three other pre-deceased sisters. He has thus a reason for deposing against the appellants because his mother having died before Faqir Muhammad, he was also deprived from some share in the property.
11. Although, in the written statement by the appellants the signatures of Faqir Muhammad on Exh.P.1 and Mark-A have not been specifically denied but the denial of execution of the said document being a total denial includes denial of signatures as well.
12. Exh.P.3 copy of order dated 8-2-1977 by the learned Civil Judge, Toba Tek Singh, indicates that a declaratory suit was filed by Mst. Rehmat Bibi and 5 others against Faqir Muhammad and another.
This suit was dismissed under Order IX, rule 8, C.P.C. On the said date. Meaning thereby that this litigation, even if it was between the appellants and their brother, came to an end about 19 years before the death of Faqir Muhammad. This document was also not put to Rehmat Bibi, one of the appellants while she was appearing as D.W.6, so as to have her explanation on account of her denial of any litigation between her and her brother Faqir Muhammad. Therefore, this document cannot be used as being claimed by the learned counsel for the respondents.
13. The learned Courts below appear not to have attended the above noted material aspects of the case. For the foregoing reasons, I allow this appeal. Set aside the judgments and decrees passed by the two Courts below. Resultantly, suit filed by respondents Nos.1 and 2 stands I Idismissed. Costs to follow the events.