' JAWWAD S. KHAWAJA, J.---The appellant/defendant impugns the concurrent decrees of the learned trial Court dated 8-11-2001 and of the learned Appellate Court dated 8-11-2003 whereby a suit filed by the respondent/plaintiff seeking specific performance of agreement to sell (Exh.P.3) dated 17-3-1999 has been decreed.
2. According to Exh.P.3, the appellant/defendant had agreed to sell the disputed shop measuring 56 square feet, to the respondent/plaintiff for a total consideration of Rs,3,50,000. The sale-deed, under the agreement, was to be executed by 17-5-1999. The case of the respondent/plaintiff was that out of the total consideration a sum of Rs,1,25,000 had been paid to the appellant when the agreement was executed and that a further sum of Rs,1,20,000 was paid vide receipt (Exh.P.1) dated 10-4-1999, whereby the time for executing the sale-deed was extended up to 17-10-1999. It was also alleged by the respondent/plaintiff that a further sum of Rs,1,00,000 was paid to the appellant vide receipt (Exh.P.2) dated 6-5-1999 whereafter only Rs,5,000 remained outstanding under the agreement. In Exh.P.2 it has been recorded that possession was, contemporaneously, being delivered to the respondent.
3. The execution of the agreement (Exh.P.3) was admitted by the appellant/defendant. He, however, alleged that the receipts (Exhs.P.1 and P.2) were forged and that he had not received the amounts of Rs,1,20,000 and Rs,1,00,000 respectively mentioned therein. According to the appellant, he was entitled to forfeit the sum of Rs,1,25,000 received by him in the event of the respondent's failure to pay the balance. The appellant also stated that the respondent had not been able to arrange the balance amount and had sought time but he had, on 20-5-1999 informed the respondent that the said amount stood forfeited. It is for this reason the respondent allegedly forged the two receipts. It was expressly stated by the appellant that possession of the shop had not been delivered to the respondent.
4. At this point, it may be noted that the respondent/plaintiff through an Advocate addressed a legal notice (Exh.P.4) to the appellant which was responded to by the appellant through his counsel vide reply dated 15-11-1999 (Exh.P.5). The contents of Exhs.P.4 and 5 have a bearing on the decision in the case and have been discussed later in this judgment.
5. The crucial question in this case turns on whether the appellant executed the receipts (Exhs.P.1 and P.2). As to whether possession of the disputed shop was handed over to the respondent as alleged by the respondent is also a material aspect of the case. Two marginal witnesses of the receipts, namely, Naveed Shahid (P.W.1) and Muhammad Ikram (P.W.2), who also claimed to be the scribe of the receipts, appeared in Court and deposed that the receipts had been executed by the appellant. A third witness of the receipts namely Muhammad Ramzan was not examined. It is, at this point, important to note that the appellant was not confronted with the receipts when he appeared as D.W.4.
6. It is also significant that although, allegedly, almost the entire consideration was paid by the respondent and only a small sum of Rs,5,000 remained outstanding, the respondent did not obtain registration of a sale-deed in his favour. Upon being asked to explain this unusual circumstance, learned counsel for the respondent was unable to give a satisfactory reply. He stated that the appellant was to obtain a Fard in his name which he had not done and it is for this reason that the sale deed was not executed. There is, however, nothing in the receipt (Exh.P.2) to suggest that lack of the Fard was a reason why a sale-deed was not being executed. It is only much later that in the legal notice (Exh.P.4) dated 4-11-1999 it is stated that the appellant was asked on 17-10-1999 to produce original documents of title. Most important of all is the fact that the respondent, in his own testimony, did not utter a single word about demanding a Fard from the appellant. Nor did he state that the lack of a Fard was the reason why the registration of the sale-deed was delayed. All that the respondent has said in this context is the following:- ' These circumstances belie the reason which is being suggested on behalf of the respondent for not getting a sale registered.
7. Even if it is assumed for a moment that there was some impediment in the execution of a sale- deed, the respondent should, at the very least, have obtained possession of the disputed shop. In the receipt (Exh.P.2), it has been recited that possession of the shop has been delivered to the respondent/plaintiff. Even in the legal notice (Exh.P.4), it has been mentioned that possession of the shop had been handed over to the respondent. However, for reasons discussed below, I have concluded that possession of the shop remained with the appellant's uncle (mamun) Rana Sher Muhammad and was never delivered to the respondent.
8. Learned counsel for the respondent drew the attention of the Court to the testimony of the respondent who appeared as P.W.3. In his examination-in-chief, the respondent deposed that on 6-5-1999 possession of the shop had been delivered to him but 8-10 days later the appellant had forcibly repossessed the shop after breaking the locks placed by the respondent. This fact, however, is belied by the legal notice (Exh.P.4) in which no mention has been made of the material fact that the appellant had forcibly repossessed the shop after handing it over to the respondent.
Learned counsel for the respondent could not reconcile the contents of the notice (Exh.P.4) with the testimony of the respondent or the contents of the receipt (Exh.P.2) in respect of possession.
Moreover, the statement of. The respondent on this score is directly contrary to the contents of para.6 of the plaint wherein it is averred that the appellant had forcibly repossessed the shop only some days earlier. The respondent's own testimony on the question is also important. In his cross- examination, he deposed that when the bargain for sale of the disputed shop was struck, the respondent's uncle (mamun) Sher Muhammad was in occupation of the same. He then stated that Sher Muhammad had died 6-7 months earlier. Considering that the testimony of the respondent was recorded on 6-1-2001, it would follow that said Sher Muhammad had died around June, 2000.
This testimony lends credence to the stance adopted by the appellant/ defendant that possession of the shop was never handed over to the respondent.
9. At this point, it is relevant to note that the legal notice (Exh.P.4) was issued on 4-11-1999 whereas possession of the shop was, allegedly, received by the respondent on 6-5-1999. Faced with this situation, learned counsel for the respondent argued that the respondent was entitled and was within his rights to seek possession of the shop through specific performance of the agreement (Exh.P.3). It is true that a plaintiff, who sues for specific performance of an agreement to sell, is entitled to claim possession of the property agreed to be sold. This, however, is not the point. The fact, which is established from the circumstances narrated above, is that possession of the disputed shop was never delivered to the respondent. The case, therefore, set up by him in the plaint, in the receipt (Exh.P.2), the legal notice (Exh.P.4) and in his own testimony as P.W.3, is proved to be false.
10. One thing, however, implicit in the stance adopted by the respondent/plaintiff, is that execution of a sale-deed or, at the very least, delivery of possession of the disputed shop on 6-5-1999 which was the date of alleged execution of the receipt (Exh.P.2), were relevant facts for determining the material question as to whether the two receipts (Exhs.P.1 and P.2) had been executed by the appellant. The natural course of human conduct would require that a sale-deed is executed upon payment of the total consideration or, if there is any hurdle in such execution, possession of the property agreed to be sold, is delivered. In the present case, the respondent has failed to show the existence of any impediment in the execution of a sale-deed and he has also failed to prove delivery of possession of the disputed shop to him. These are compelling circumstances, which stand proved and, as a consequence, support the defence set up by the appellant and undermine the credibility of the case put forth by the respondent.
11. I now take up for consideration the testimony of the three P. Ws. The respondent/plaintiff, as his own witness, deposed that the two receipts (Exhs.P.1 and P.2) were written by Muhammad Ikram (P.W.2) at the respondent's shop around 11-00 a.m. He admitted in his cross-examination that the two witnesses, namely Muhammad Naveed Shahid (P. W.1) and Muhammad Ikram aforesaid were residents of Bedian Kalan. He also acknowledged that the third witness to the receipt, namely, Muhammad Ramzan, who was his brother-in-law (Sala), but who was not examined as a P.W., also belonged to Bedian Kalan. I find it strange that these three persons happened, by chance, to be present in the shop of the respondent on both dates i.e, 10-4-1999 and 6-5-1999 when the two receipts (Exhs.P.1 and P.2) were allegedly written and executed. It is stranger still that even, according to the respondent, he had four employees working in his shop, but none of them was asked to witness the two receipts which, as noted above, were got witnessed by three persons from a distant village. These three persons did not have any ostensible reason for being present in the shop of the respondent on two dates, almost one month apart, just when the respondent was ready to make the alleged additional payments of Rs,1,20,000 and Rs,1,00,000 respectively. At this point, it may be noted that the respondent admitted in his evidence that Bedian Kalan was in District Kasur and was 30 kilometres distant from Raiwind in District Lahore, where the disputed shop was located.
12. Naveed Shahid (P.W.1) also stated that both receipts were executed on different dates at around 10-00/11-00 a.m. His evidence, as to his place of residence, is inconsistent and does not inspire confidence. He stated that he was resident of Bedian Kalan and then he also deposed that his residence in Raiwind was behind the Darbar of Baba Rahmat Ali. He was not in a position to state the house, street or ward number of the house which, he stated, was owned by his unmarried sister.
He did not give any explanation for his presence in the respondent's shop on the two dates, mentioned above, exactly around 10-00/ 11-00 a.m. When the respondent was to make payment of the alleged amounts, mentioned in Exhs. P.1 and P.2.
13. P.W.2, Muhammad Ikram admitted that he was taking a homeopathic course at the time when the two receipts were prepared by him. He also could not explain his presence in Raiwind at the time when the two receipts were allegedly written by him. On a material point, he also contradicted P.W.1 and P.W.3 when he deposed that the time, when the receipts were executed, was 3-00 p.m.
14. The above discussed testimony of the P.Ws. Detracts from their probity. Their evidence is also undermined by the material circumstances, discussed above, relating to the absence of a registered sale-deed and possession of the disputed shop.
15. _ Finally, I take up for consideration the two receipts (Exhs.P.1 and P.2). It is obvious even from a bare perusal of the two documents that Muhammad Ikram is not to be believed in his statement that he was the scribe of the two documents. The words differently written and placed on the two documents. The word appearing on Exh.P.2, appears to be in the same hand as the text of the two receipts. However, the word ( ()) I ) on Exh.P.1 is clearly in a different hand and has been placed after the date, which is not the case in Exh.P.2.
16. Unfortunately, the learned Courts below have not taken note of the circumstances discussed above. They have proceeded to accept the testimony of the P.Ws. Despite the serious shortcomings adverted to above and despite the strong circumstantial evidence which is much more reliable and goes contrary to the statements made by the P.Ws. The learned Courts below have thus committed substantial error in their proceedings which has resulted in error in their decisions on the merits of the case. The impugned decrees, therefore, are not legally sustainable and are set aside. As a consequence, the suit filed by the respondent/plaintiff is dismissed. The appellant shall also be entitled to his costs throughout.