JAWWAD S. KHAWAJA, J.--- The appellant/plaintiff impugns the appellate decree dated 30-11- 2000 whereby the decree of the learned Civil Court, Arifwala, dated 13-6-1997 was set aside and, as a result, the suit filed by the appellant/plaintiff seeking specific performance of agreement (Exh.P.1), dated 13-1-1987 has been dismissed.
2. Although the record of this case is voluminous, the facts necessary for its disposal are relatively straightforward.
3. The dispute between the parties relates to 100 Kanals, 18 Marlas of agricultural land situated in Chak No,78-EB now falling in Tehsil Arifwala. The land originally was allotted to one Dost Muhammad who was an affectee displaced from Islamabad. Upon his death the property was inherited by Muhammad Nawaz (respondent No,5) now represented by his L.Rs, The case set up by the appellant/plaintiff was that Muhammad Nawaz had appointed Abdul Qayyum (respondent No,6) now represented by his L.Rs, as his general attorney vide registered power of attorney (Exh.P.3) dated 8-3-1976 and that the said general attorney had executed the agreement (Exh.P.1) along with a receipt (Exh.P.2) showing that out of the total consideration of Rs,1,50,000 a sum of Rs,1,30,000 had been paid by the appellant/plaintiff.
4. The suit of the appellant was not resisted by Muhammad Nawaz (respondent No,5) or by his attorney Abdul Qayyum (respondent No,6).
5. The parties, who opposed the appellant/plaintiff, were respondents Nos,1 to 4, 7 and 8 (hereinafter referred to as the contesting respondents). The defence set up by the contesting respondents was that Muhammad Nawaz had executed an agreement (Exh.D.7) in their favour on 2-1-1987 whereby he had agreed to sell the suit-land to them for a total consideration of Rs,3,00,000 out of which a sum of Rs,50,000 was paid by them. At this juncture it is relevant to note that in their written statement the contesting respondents did not deny the fact that Abdul Qayyum (respondent No,6) was appointed attorney of the vendor Muhammad Nawaz or that Abdul Qayyum had executed Exh.P.1 and Exh.P.2. In paragraph 2 of the written statement it was averred that the power of attorney (Exh.P.3) had been cancelled through Abtaal Nama dated 8-1- 1987. On this basis it was asserted that on the date of execution of Exh.P.1 and Exh.P.2 i,e, 13-1-1987 the aforesaid Abdul Qayyum was not an attorney of Muhammad Nawaz and, therefore, he had no authority to execute the said documents.
6. In respect of the agreement (Exh.P.1) itself it was averred in paragraph 3 of the written statement that Abdul Qayyum had antedated the said agreement with the object of frustrating the purchase of the property by the contesting respondents. It was further alleged in the written statement that the contesting respondents were bona fide purchasers of the suit property for valuable consideration without knowledge of any interest of the appellant/plaintiff in the suit property.
7. Here it is also relevant to note that the contesting respondents produced Rapat Roznamcha No,345 dated 13-3-1987 and Mutation No,723 dated 16-3-1987 whereby the suit-land purportedly was mutated in the name of the contesting respondents. The learned trial Court framed as many as 12 issues including that of relief. However, Issues Nos,1 and 11 are dispositive of the present appeal. These issues were in the following terms:-- "(1) Whether the deceased defendant No,1 entered into agreement to sell the suit-land for consideration of Rs,1,50,000 with the plaintiff on 13-1-1987, executed the Iqrar Nama and receipt thereunder of even date, received an earnest money of Rs,1,30,000 through his special attorney deceased defendant No,2? OPP
(11) Whether the defendants are bona fide purchaser for consideration and possession without knowledge? OPD"
8. The parties led evidence both oral and documentary in support of their respective pleas. Having gone through the judgments of the learned Courts below I note that the learned trial Court has dealt with the case in great detail and while doing so has scrutinized the evidence minutely. The lamed appellate Court unfortunately has not only failed to take note of material aspects of the case, its consideration of the available evidence is also perfunctory. Moreover, the learned appellate Court has not met the reasoning of the learned trial Court while reversing its findings.
9. The foremost basis on which the appellant has been non-suited by the learned appellate Court is that the agreement (Exh.P.1) has not been proved because one of the marginal witnesses mentioned therein, namely, Haji Muhammad Jan had not affixed his signatures on the agreement.
In order to determine the validity of this finding I have considered the circumstances borne out from the record. Exh.P.1, as noted above, was not disputed by the vendor Muhammad Nawaz or the attorney Abdul Qayyum. The execution of the said document as per paragraph 3 of the written statement, was not disputed even by the contesting respondents. Their only grievance was that the document had been antedated. The document itself was thus, admittedly, executed by the attorney and consequently did not require proof through the testimony of marginal witnesses.
Notwithstanding this, as discussed in a latter part of this judgment, Exh.P.1- stands proved even through attesting witnesses.
10. Furthermore, since the execution was not disputed even by the contesting respondents, the only question which remained was whether the attorney had ceased to have authority to execute Exh.P.1 on account of the Abataal Nama (Exh.D.11) dated 8-1-1987 and, secondly, to determine if indeed the agreement (Exh.P.1) had been antedated with the object of frustrating any agreement between the vendor and the contesting respondents.
11. The contesting respondents produced on record not one but two Abtaal Namas; the first (Exh.D.11) is dated 8-1-1987 while there is a second Abtaal Nama (Exh.D.12) dated 15-1-1987. The necessity for the second Abtaal Nama (Exh.D.12) statedly is that the first (Exh.D.11) was not satisfactory. There is no evidence on record to show that the attorney was ever given any intimation of the cancellation of the power of attorney (Exh.P.3). The mere fact that the two Abtaal Namas were registered is of no consequence because requisite intimation of the termination of agency was not given to the agent under section 208 of the Contract Act and furthermore there is nothing on record to show that the appellant had knowledge of such termination. More importantly, however, the execution of the Abtaal Namas was denied by the vendor Muhammad Nawaz and was not otherwise proved. It is, therefore, clear that the power of attorney (Exh.P.3) and the authority conferred thereby on the attorney, was subsisting on 13-1-1987 when the agreement (Exh.P.1) and the receipt (Exh.P.2) were executed.
12. It is also of significance that one of the contesting respondents, namely, Muhammad Younus appeared as D.W.7 and deposed that the Abtaal Namas (Exh.D.11 and Exh.D.12) were forged by the respondent Shafqat Ali Kiani.
13. As to the question of antedating there is ample evidence on record to show that the agreement (Exh.P.1) was executed on 13-1-1987 and was not antedated. Firstly, it is to be noted that the endorsement of the stamp vendor at the back of Exh.P.1 shows that the stamp paper was purchased by the attorney Abdul Qayyum on 13-1-1987. Secondly, Mian Muhammad Aslam, Advocate/Notary Public appeared as P.W.1. He confirmed that he had notarized Exh.P.1 on 13-1-1987 and had duly entered the notarization at Serial No,71 in his register for 13-1-1987. The testimony of P.W.1 has not been shaken in cross-examination. This evidence strongly belies the case set up by the contesting respondents that the agreement (Exh.P.1) was antedated.
14. The next witness produced by the appellant/plaintiff was Ali Akbar Chishti, Petition Writer who appeared as P.W.2 and deposed that he had inscribed the agreement (Exh.P.1) on the instructions of the attorney Abdul Qayyum and he had also signed the said document. He further testified that the agreement (Exh.P.1) was entered in his register at Serial No,55 on 13-1-1987. On that date eight documents in all were entered in his register, three prior to Exh.P.1 and four subsequent thereto. This witness is credible and his testimony has also not been undermined in cross-examination.
15. At this point it is important to note that on Exh.P.1 the names of the two marginal witnesses, namely, Subedar Muhammad Mahfooz and Haji Muhammad Jan have been mentioned. Only the signatures of Subedar Muhammad Mahfooz appear on the document while Haji Muhammad Jan's signatures, as noted above, are missing. This omission has been taken note of by the learned appellate Court which has concluded that on account of the missing signatures of Haji Muhammad Jan, the requirements of sections 17 and 79 of the Qanun-e-Shahadat Order have not been met and, therefore, the said document cannot be considered in evidence. This finding is not tenable for more than one reason. The first being that the execution of Exh.P.1. by the attorney Abdul Qayyum is not in dispute at all, as discussed above. Secondly, Ali Akbar Chishti (P.W.2), who was the scribe of the document, deposed that the document was executed by Abdul Qayyum and was witnessed by Subedar Muhammad Mahfooz in his presence and he had also affixed his signatures on the same. These circumstances are sufficient to constitute P.W.2 an attesting witness. Support, if any, for this legal proposition can be had from the case titled Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789. The learned appellate Court thus fell into serious error by holding that Exh.P.1 had not been proved.
16. In addition to the above, learned counsel for the appellant argued that even the wording of the receipt (Exh.P.2) would make it an agreement to sell because the suit property has been mentioned therein together with the total consideration of the amount paid at the time of execution of the receipt. This contention is well-founded and is supported by the ratio of the case titled Major (Retd.) Ahmad Khan Bhatti v. Mst. Masooda Fatimi PLD 1981 Kar. 398. In any event, in view of the above discussion, wherein the agreement (Exh.P.1) has been held to have been attested by two witnesses, namely, Subedar Muhammad Mahfooz and the Petition Writer Ali Akbar Chishti (P.W.2), even if the receipt (Exh.P.2) is not treated as an agreement, the appellant's case based on the agreement (Exh.P.1) stands established.
17. I next come to the defence set up by the contesting respondents. It needs to be noted that one of them, namely, Muhammad Younus (respondent No,1) is a Patwari. It can, therefore, reasonably be assumed that he was fully aware of the legal and procedural requirements pertaining to transactions involving sale of agricultural land. I, therefore, find it odd in the extreme that the agreement (Exh.D.7) relied on by the contesting respondents, is not on stamp paper. This is particularly so because the witnesses of the contesting respondents themselves state that the agreement was prepared in the Tehsil premises. Furthermore, it has not been scribed by any licensed Petition Writer. It does appear to have been notarized although the name of the notary is not legible. One Ch. Muhammad Amin appeared as D.W.4 and claimed that he had notarized the agreement (Exh.D.7). He admitted that he had not made any entry of the notarization in his register. There is no valid explanation for this serious omission. Furthermore one of the marginal witnesses to the agreement (Exh.D.7), namely, Raja Shafqat Ali Kiani (respondent No,9 herein) did not appear as a witness to prove the said document. The other marginal witness, namely, Khurshid Ali appeared as D.W.6. This person is the husband of Mst. Sughran Bibi one of the contesting respondents. He is obviously an interested witness and his testimony has to be considered with extreme caution. His wife being a direct beneficiary of the agreement (Exh.D.7) considering the shortcomings of the agreement (Exh.D.7) noted above and the lack of probity of D.W.4 discussed above, I am not left in any doubt that the agreement (Exh.D.7) was not proved.
18. Here it is also worth-noting that the agreement (Exh.D.7) was expressly denied by the vendor Muhammad Nawaz. No attempt was made to prove his signatures on the document and the other mode by proving execution i,e, through the marginal witnesses, was also not complied with by the contesting respondents, as discussed above.
19. From the above discussion, it is clear that the agreement (Exh.P.1) stands duly proved. It is also proved that the said agreement was executed on 13-1-1987 and was not antedated. On the other hand, the agreement (Exh.D.7) relied on by the contesting respondents, has not been proved.
20. Now it only remains to be seen if the contesting respondents were able to prove that they were bona fide purchasers of the suit properly for valuable consideration without notice of the appellant's interest therein. Muhammad Rafique (respondent No,7), who is one of the contesting respondents, appeared as D.W.9. In his cross-examination he admitted that the agreement (Exh.P.1) was of public knowledge in the locality. The appellant/plaintiff appeared as P.W.9 and categorically deposed that the contesting respondents were fully aware of the agreement (Exh.P.1) in his favour. This part of his testimony has not been disputed in cross-examination. To the same effect is the testimony of Ajmal Faker who appeared as P.W.4.
21. In view of the foregoing discussion, I am not left in any doubt', that the contesting respondents failed to prove that they were bona fide I purchasers.
22. In addition to the above, it is also to be noted that one Chiragh was the lessee of the suit-land at the time of the agreement (Exh.P.1). This fact is established from the Khasra Girdawari covering the period between Kharif, 1986 and Rabi, 1987 (Exh.P.11) and even the Khasra Girdawari produced by the contesting respondents (Exh.D.20). The son of the aforesaid Chiragh, namely, Ali Asghar appeared as P.W.6 and testified that when the agreement (Exh.P.1) was executed the attorney Abdul Qayyum had informed Chiragh that he was to pay the lease money to the appellant in future. P.W.6 further deposed that for the subsequent crop the lease money, in fact, was paid to the appellant but thereafter the contesting respondents forcibly took possession from Chiragh. The respondent Younus does not claim that he took possession from the vendor or his attorney. His statement is merely to the effect that the land was vacant when he occupied it. This testimony is belied by the Khasra Girdawaris (Exh.P.11) produced by the appellant and Exh.D.20 produced by the contesting respondents themselves.
23. The contesting respondents brought on record testimony of witnesses in some other case between the aforesaid Chiragh and the contesting respondents. The learned trial Court rightly excluded this testimony from evidence in the present case because the proceedings of some other case are neither relevant nor admissible in the present case.
24. The learned appellate Court has utterly failed to consider the above aspects of the case.
Learned counsel for the contesting respondents merely argued that this was a second appeal and, therefore, the finding of fact arrived at by the learned appellate Court could not be interfered J with on account of the limitations set out in section 100, C.P.C. This submission, I am afraid, is without merit. If the findings of the appellate Court are contrary to the evidence on record or are based on erroneous premises, as in the present case, the appellate decree cannot be sustained.
25. Secondly, it was contended by learned counsel for the contesting respondents that there was no occasion for the execution of the receipt (Exh.D.2) and that the said document had been subsequently fabricated with the object of introducing the third witness, namely, Muhammad Sibtain (P.W.3) whose name appears on the receipt (Exh.P.2) but not on the agreement (Exh.P.1).
There is no merit in this submission because, for the reasons considered above, Exh.P.1 itself stands proved.
26. Finally, it was contended by learned counsel for the contesting respondents that the appellant Muhammad Tufail while appearing as P.W.8 had admitted that the vendor was present when the agreement (Exh.P.1) and the receipt (Exh.P.2) were executed. It was argued that this statement itself shows that the documents were fabricated because in the ordinary course, if the vendor was himself present, he should have signed the documents or, at the very least, attested the same as a marginal witness. This contention is also without force because the agreement (Exh.P.1) stands duly proved for the reasons considered above.
27. For the foregoing reasons the impugned appellate decree dated 30-11-2000 is set aside and the decree of the learned trial Court stands restored.
28. The appellant shall also be entitled to his costs throughout.