' JAWWAD S. KHAWAJA, J.---The petitioner/defendant, namely, Mst. Mehrunnisa, is the sister of Muhammad Rasheed Khan, respondent/plaintiff. Both parties along with the other legal heirs of their father Taha Khan inherited his estate. The petitioner through devolution inherited 15 kanals of land, which is subject-matter of the present litigation.
2. The respondent/plaintiff filed a suit claiming that the petitioner through her attorney Saifullah had executed agreement to sell (Exh.P.1), dated 16-8-1994 and agreed to sell the suit-land to him.
The suit was resisted by the petitioner/defendant who claimed that she had not sold the suit-land to the respondent and nor had she received any consideration for the same.
3. In the above circumstances, it was for the respondent/plaintiff to prove the execution of Exh.P.1.
One of the marginal witnesses, namely, Khatir Juma was not produced by the respondent/plaintiff.
There is no explanation on the record for this serious omission. Saifullah was produced by the respondents as P.W.3. He deposed that the respondent had not paid any amount to the.Petitioner but had agreed to do so at his own subsequently. He also testified that later on the petitioner approached him in respect of the sale consideration, but the respondent failed to pay her despite his efforts.
4. In the circumstances, considering that the marginal witness, Khatir Juma was not examined, the execution of Exh.P.1. Was not proved. Secondly, even if the agreement was proved, the testimony of Saifullah (P.W.3) is sufficient to establish that the petitioner was not paid. In view, of the fact that the respondent was the brother of the petitioner and did not make payment of the consideration, he was not entitled to the discretionary relief of specific performance.
5. The learned trial Court dismissed the suit of the respondent on 8-6-2000. The appellate Court reversed this finding on extraneous considerations. The appellate Court did not take note of the abovecircumstances and nor did it address the reasoning of the learned trial Court. In the circumstances, the appellate decree is no legally sustainable. It is, therefore, set aside. As a result, the decree of the learned trial Court, dated 8-6-2000 is affirmed.
6. The petitioner shall also be entitled to her costs throughout.