JUDGMENT SARDAR MUHAMMAD ASLAM, J.- This regular second appeal by the plaintiff is directed against the judgment and decree dated 05.07.2004 passed by the learned Additional District Judge, Lahore whereby while accepting the the judgment and decree passed by the learned Trial Court dated 16.12.2000.
2. Briefly the facts relevant for the disposal of this appeal are that the defendants agreed to sell the suit property to the plaintiff through general attorney, Maratib Ali, for consideration of Rs.12,00,000/- vide agreement dated 08.10.1984 and received R6. 2,00,000/- as earnest money and handed over the physical possession. A portion of property was in occupation of the tenants, so the defendants undertook to get the said portion vacated from them within 31/? Years and hand over its possession but failed to perform the agreement in. Spite of eviction of the tenants. The plaintiff, in the meantime, improved the status of the suit property by spending about Rs. 1,50,000/-. The defendants tried to back out from the agreement on which the dispute arose between the parties and Mr. Muhammad Bashir Khan was verbally appointed arbitrator. A sum of Rs. 1,00,000/- was further paid to the defendants, but still the Attorney, was not ready and willing to execute sale- deed giving rise to the suit. The defendants contested the suit. Controversy gave rise to framing of issues. The parties produced their respective oral as well as documentary evidence. The learned Trial Court after hearing the parties decreed the suit in favour of the plaintiff. An appeal was preferred, It was allowed vide judgment and decree recording dismissal of suit, which has been assailed in this regular second appeal.
3. The learned counsel for the appellant contends that the findings of the learned Appellate Court in recording dismissal of the suit are based on surmises and suppositions. He referred to the evidence of PW-1, PW-2, and PW-3, in support of execution of agreement.
4. On the other hand, learned counsel for the respondents argued that the agreement was a fabricated document and no consideration amount was paid to the defendants.
5. Heard. Record perused.
6. The learned That Court found issue Nos. 7 and 15-A against the defendants and issues No: 13 and 14 in favour of the plaintiff, issues Nos. 6 & 8 were not pressed while issue No. 12 was deleted.
7. The learned Appellate Court held that PW-1 Faizi Pirzada, a deed writer, admitted in his cross- examination that the (i) sale did not take place in his presence; (ii) the plaintiff has purchased stamp papers himself; (iii) he did not enter the agreement, Exh. P.1 in his register; (iv) he did not obtain the signature/thumb impressions of the agreement, stated that he was not present at the time of execution of, Exh. P.1 and (vii) the other marginal witness was not produced. Evidence was found deficient in proof of agreement.
8. I now intend to examine evidence to ascertain whether the conclusion drawn by the learned Appellate Court is correct and supported by. Evidence.
9. Faizi Pirzada appeared as PW-1. He in his examination- in-Chief stated of having authored agreement, Exh. P.1. The parties and the witnesses signed agreement in his presence. He did not secure their thumb impressions. He was not present when the bargain took place nor he got the transaction materialized. He did not know any of the marginal witnesses, personally. He did not know who had identified the marginal witnesses. He had not consulted their Identity Cards.
Muratab Ali,. Executant was aged 80/85 years. He did not remember the particulars of the property subject-matter, of agreement, Exh. P.1. He stated that the person, whose photograph is Exh. PW-1/D- 1, had signed the agreement. He did not enter the agreement in his register Waseeqanaveesi and that he did not secure the signature of the executants in his register. He admitted that agreement Exh: P.1 neither contained thumb impression of the executants nor his Identity Card Number.
Shaukat Ali, PW-2 has failed to identify, Muratab Ali- through his photograph Exh. PW-1/D-f': As to consideration amount, he stated that currency notes of five hundred denominations were paid. He did not know the name if author of agreement Muhammad Iqbal himself appeared as PW.
3. He supported his claim 2006 narrated in the plaint, Abdul Qayyum, one of the defendants appeared as DVV-1. He denied the execution of agreement and stated that attorney was. Appointed for assessm ent of value and receiving rent of the property. No power of sale was given to him.
10. Exh. P.1 is an agreement sought to be enforced which contained signatures of Muratab Ali, execution besides Ch. Muhammad Sadaq and Shaukat Ali PW, the marginal witnesses of the agreement. Ch. Muhammad Sadaq was. Not produced in Court for the reasons best known to the appellant. Exh. P.2 to Exh. P.6 are statements of the witnesses recorded before the learned Rent Controller in rent proceedings, which have rightly been excluded by the learned Court from its consideration as the same could be used for the purposes of confrontation under Article 140 of Qanoon-e-Shahadat, 1984. Exh. P. 7 is a report of Imdad Hussan S.I, CIA, Lahore, on the application of one, of the defendants, which is per-se not admissible in evidence. Copy of FIR is Exh. P.8 registered at the instance of Malik Abdul Qayyum son of Muratab Ali. No official appeared to prove this document. Exh. P.9 is report of Magistrate on an application* of Malik Muratab Ali, in respect of possession. This, too, is not admissible in evidence without calling maker of the report. Exh. P.10 and Exh. P.11 are copies of assessm ents for the years 1981 -82, 1986-87 indicating existence of factory.
Exh. P.12 is directive of Inspector General Police Punjab requiring implementation of Order of this Court. Exh. P.13 is an Order issued directing maintenance of status quo in regard to articles available at the spot. Exh. P.14 is a copy of site plan. Exh.P.15 is an Order of this Court for registration of the Criminal case. Exh. P.16, Exh. P.17, Exh. P.18, Exh. P.19 and Exh. P. 20 are requests of Muratab Ali defendant for registration of Criminal case against the plaintiff addressed. To Prime Minister, President, S.P. Lahore City, Governor of the Punjab, Lahore and Inspector General Police, Punjab, Lahore. Exh. P.21 is statement of Muhammad Younis, who recorded the report, which has no bearing to the issue, is Exh. P.22 the statement of Abdul Qayyum, wherein it was conceded, that Muratab Ali was the general attorney of the defendants. Exh. P.23 is a receipt indicating payment of Rs.
1,00,000/- by Muhammad Iqbal to Muhammad Ba. Shir Khan Arbitrator. This document, not per-se admissible, has not been proved in accordance with law. Exh. P. 24 is a copy of General power of attorney in -favour of Muratab Ali. Exh. P.25 is copy of amended petition. Exh. P.26, Exh. P.27 are written replies to the petition. Exh. P.28 is the copy of Form of list of documents required under Order 7 Rule 14 CPC while Exh,. P.29 is list required under Order 13, Rule-1 CPC.
11. Exh. D. 1 is copy of constitution petition Exh. D.2, copy of an agreement for appointment of Arbitrator, Exh. D.3 the - decision., Exh. D.3/1 receipt written by Muhammad Bashir Khan, and Exh. D- 3/2 copy of rent received by Muratab Ali were put to PW-3 in cross- examination who stated that they are forged. No evidence was produced to prove them. Exh. D.4 is copy of agreement indicating rent and Exh. D.5 is statement of Muhammad Iqbal plaintiff before the learned Rent Controller. The same renders no help in the absence of its confrontation to this statement recorded in Court. Exh.
D.6 is copy of petition to SSP by Muhammad Bashir Khan, Arbitrator, which has not been proved.
12. Execution of agreement to sell has not been proved on examination of oral and documentary evidence, PW-1 is scribe of the document. The marginal witnesses were not known to him. No amount was paid in his presence. He has not seen the identity cards of the witnesses. PW-2 Shaukat is personal servant of plaintiff. He stated that executants who signed the agreement, was not the person, whose photograph Ex. D1/1 was shown to him. PW-1 contradicted him in stating that he was the warne person. Non-production of the other marginal witness and contradiction between PW-1 and PW-2, about the very identity of executants,, caused a serious dent to the authenticity of. Agreement. PW-2 claimed payment of consideration amount through currency notes of denomination of Rs. 500/-, which were not in circulation at the relevant time. Heavy onus lay on the plaintiff to prove the agreement to sell and payment of earnest amount as per averment in plaint but failed, badly.
13. The suit land measures 4 kanals, 9 marlas situated at Abdul Qayyum Road, Badami Bagh, Lahore, predominantly a commercial, site, where a factory existed before its alleged demolition.
Market value has increased manifolds. During hearing, learned counsel for the defendants/respondents offered to sell out the property on the market value as obtaining today to bring an end to the long drawn litigation Learned counsel for the plaintiff was ready to pay the market price assessed by the Deputy Commissioner for the purposes of stamp duty and -fee on transfer of immoveable property, to which dis-agreement was expressed by defendant's learned counsel.
14. Grant of a decree for specific performance is a discretionary relief, It may be refused, even if an agreement to sell is proved, on the basis of equitable consideration.. Plaintiffs entered as tenants and are retaining possession of the property since 1984 under the disputed agreement allegedly against earnest amount of Rs. 3,00,000/-. Payment of which, too, has not been proved.
15. Learned, Appellate Court on consideration of evidence rightly allowed the first appeal. Plaintiffs' case does not fall within the legitimate exceptions under section 100, CPC calling for interference.
16. For what has been discussed above, this regular second appeal is without force and is accordingly dismissed with costs.