' SYED JAMSHED ALI, J.---The judgment and decree dated 5-6-1998 of the learned Additional District Judge, Sargodha have been assailed in this appeal which arises out of the following circumstances.
2. On 10-12-1990, Ahmad, respondent, filed a suit for specific performance. His case was that on 13- 1-1979 the appellant executed an agreement to sell his land measuring 47-3/4 Kanals for a consideration of Rs,70,000, already received Rs,68,000 had delivered possession of the said land to the plaintiff-respondent and an amount of Rs,2,000 was outstanding. It was averred that the plaintiff-respondent approached the appellant for execution of the sale-deed but he put it off on the plea that there was an error in the Revenue Record as to the share of the appellant and after getting it corrected he will execute the registered sale-deed. On 14-11-1990, the appellant filed a suit for ejectment before the revenue Court against the respondent which necessitated filing of the instant suit.
3. The suit was contested by the appellant on a number of grounds. Not only the plea of limitation was raised but it was also averred that the plaintiff-respondent was estopped from his word and conduct to file the suit and had waived his right, if any, and could not be permitted to take advantage of his own default. The agreement to sell was attacked on the ground of fraud and forgery. It was further averred that no consideration was paid to the appellant, the plaintiff- respondent was a defaulter, who was a tenant on the land in dispute, no notice for completion of the transaction was given to the appellant nor the balance sale consideration was paid to him. It was further averred that the plaintiff-respondent was neither paying share of produce nor the balance sale consideration.
4. Necessary issues were framed and the suit was tried. The learned trial Court found that while the agreement, Exh.P.1, recited that payment of Rs,39,000 was made to the appellant through a cheque, the evidence produced at the trial showed that the amount of Rs,39,000 was paid in cash.
Accordingly, the suit filed by the plaintiff-respondent was dismissed vide judgment and decree dated 18-5-1994. The suit was, however, held to be within time. The plaintiff-respondent took an appeal before the learned District Court. The learned first appellate Court reappraised the entire evidence, believed the evidence of the plaintiff-respondent and came to the conclusion that the agreement to sell Exh.P.1 was duly executed by the appellant. Accordingly, vide judgment and decree dated 5-6-1998 the suit of the plaintiff-respondent was decreed.
5. Since the impugned judgment was one of variance, I have examined the entire A evidence produced by the parties. Ehsan Ahmad, Ahlmad, office of the Assistant Commissioner, Bhalwal appeared as P.W.1. He produced the file of the ejectment case titled Syed Ghulam Shabbir v.
Ahmad decided on 13-12-1992. Muhammad Afzal, real brother of Muhammad Bashir, the scribe, was examined as P.W.2. He stated that said Muhammad Bashir had died in 1984. The original agreement to sell was on the ejectment case and after perusing the original agreement he testified that it was written by Muhammad Bashir. A copy of the said agreement was exhibited on the record as Exh.P.1. Muhammad Fazil, Manager, National Bank, Main Branch, Bhalwal was examined as P.W.3. He stated that on 13-1-1979 Ahmad had drawn an amount of Rs139,000. The statement of account was produced as Exh.P.2. Ahmad Khan, the plaintiff-respondent appeared as P.W.4. He stated that a sum of Rs,29,000 was paid to the appellant at the time of the bargain who had delivered possession of the land in part performance of the contract while a sum of Rs,39,000 was paid to the appellant at the time of execution of Exh.P.1 after drawing it from the bank because the appellant had refused to accept a cheque. He fully supported his case. Muhammad Gulzar was examined as P.W.S. He stated that in his presence the bargain was struck for Rs,70,000 and in his presence an amount of Rs,29,000 was paid to the appellant. Muhammad Hayat P.W.6 corroborated P.W.S. Shana was examined as P.W.7. According to him he went to see one Saleh Muhammad at his Dera and was informed that the appellant had took him to the Bhalwal Kutchery. He accordingly, went to the Kutchery and saw the parties sitting with Sheikh Bashir, the petition-writer, and at his instructions, the appellant brought a stamp paper which was written and executed and the parties and the witnesses had signed in his presence. He identified the signatures of the appellant Exh. P.
1/A on Exh.P.1. Explaining the reason for omission of his name from Exh.P.1 he stated that according to Ghulam Shabbir since two witnesses had already thumb-marked, the said agreement the third witness was not required. The death certificates of Zaman and Saleh Muhammad, the two witnesses of Exh.P.1, were produced respectively as Exh.P.3 and Exh.P.4. Copy of the 'Register Haqdaran Zamin' for the year 1985-1986 was produced as Exh.P.5. In rebuttal the only witness examined was Ghulam Abbas, the son of the appellant, who appeared as general attorney of the appellant. He denied the bargain and asserted that no agreement was executed by the appellant in favour of the plaintiff-respondent nor he had received any sale consideration. He denied the signatures of the appellant on the agreement. Apart from the copy of the power of attorney, Jamabandies for the year 1985-1986 and 1988-1989 were produced as Exh.D.1 and Exh.D.2 respectively while the order of the Revenue Officer directing plaintiff's ejectment was produced as Exh. D .3 .
6. The learned counsel for the appellant contended that the learned first appellate Court unlawfully interfered in the matter by ignoring material evidence and circumstances brought on the record.
He submitted that agreement, Exh.P.1, was not duly proved. He maintains that according to agreement, Exh.P.1, a sum of Rs,39,000 was paid through the cheque while at the trial it was claimed that it was paid in cash. The suit to enforce agreement dated 13-1-1979 was filed on 10-12-1990 which was barred by time, the plaintiff-respondent has never been prepared to perform his part of the contract, his statement as P.W.4 was referred according to which the transaction was to be completed within 1 or a 1-1/4 months. It is next contended that according to the case of plaintiff- respondent he had paid a sum of Rs,68,000 to the appellant but neither a mutation was even entered nor a report was lodged in 'Roznamcha Waqiati'. It is next submitted that only a copy of agreement Exh.P.1 was placed on the record which was in fact secondary evidence and, therefore, it was not admissible in evidence. The payment of sale consideration of Rs,68,000 was not proved inasmuch as that there was no receipt for the sum of Rs,29,000 statedly paid by the plaintiff- respondent to the appellant before execution of Exh.P.1 nor there was any evidence of payment of Rs,39,000 at the time of execution of the agreement because there was no receipt for Rs,39,000.
Reliance was placed on Province of the Punjab through Secretary, Irrigation and Power Department P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din and Co. Through Proprietor (2003 CLC 504), Faqir Muhammad and 8 others v. Abdul Momin and 2 others (PLD 2003 SC 594), Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lah. 385), Mirza Arif Baig v. Mubarik Ali (PLD 1992 Lah. 366), Hazratullah v. District Council, Haripur (1997 SCMR 1570), Ghulam Qadir v. Khandu (1996 SCMR 1375) and Mohar Khan and 7 others v. Sultan Khan and 5 others (1988 CLC 20).
7. On the other hand, the learned counsel for the plaintiff-respondent has referred to various averments in the written statement to show that in fact execution of the agreement was admitted by the appellant. He submits that the appellant did not appear in the witness-box and, therefore, denial of the execution of the agreement by his son, the attorney, was of no consequence. He also contended that before the learned trial Court as well as before this Court, an offer was made that if the appellant appears and takes oath on the Holy Qur'an that he had not received the amount stated in the suit in respect of the land in dispute or had not executed the agreement to sell he would withdraw the suit but the offer was declined. These facts were referred to show the bona fides of the plaintiff-respondent. As far as the question of limitation is concerned, he maintains that no time was fixed in the agreement and since the plaintiff-respondent was in possession, the cause of action for the suit accrued on the refusal of the appellant to perform his part of the contract by filing the ejectment case. He also invited my attention to the statement of D.W.1, according to which land measuring 201 Kanals, 10 Marlas was purchased for a consideration of Rs,1,00,000 in his name in the month of April or May, 1979. He next contended that execution of an agreement is a question of fact. The learned first appellate Court, after re-appraising the evidence, believed the evidence produced by the plaintiff-respondent and, therefore, no question of law as such, is involved to warrant interference in second appeal. According to him, the judgment of the learned trial Court was based on the solitary fact that agreement Exh.P.1 recited payment of Rs,39,000 through cheque while at the trial, the said amount of Rs,39,000 was paid in cash, which had duly been explained.
8. The submissions made by the learned counsel for the parties have been considered. Since the scribe and the two witnesses were already dead, the brother of scribe was examined who testified writing of the said agreement by the scribe and testified his signatures on Exh.P.1. The sworn statement of the plaintiff-respondent was also relied upon by the learned first appellate court.
Undisputedly, the plaintiff-respondent was in possession of the land in dispute at the time of bargain although as a tenant and continued to remain in possession even after the agreement.
Perusal of the written statement filed by the appellant shows that although execution of agreement was denied but simultaneously the pleas of estoppel, waiver and default by the plaintiff- respondent were also raised. According to the written statement neither the plaintiff-respondent was paying the share of produce nor was paying the balance sale consideration. These averments coupled with the fact that event he written statement was signed and verified by his son as attorney, the appellant for no valid reason, appeared in the witness-box to deny execution of Exh.P.1. Perusal of the order dated 31-12-1991 of the Revenue Officer (Exh.D.3) shows that the case of the appellant was that the plaintiff-respondent was a defaulter. It is not understandable that the appellant did not take any step either for ejectment of the plaintiff or recovery of produce from him till the filing of the ejectment case on 14-11-1990. D.W.1, the son and the attorney of the appellant appeared in the witness-box on 30-10-1993 and claimed that for 8/9 years the plaintiff-respondent has been paying the share of produce to the appellant but had stopped paying it the last about 4/5 years. This was inconsistent with the stance in the written statement that no rent was paid to the appellant. It is not believable that an owner of the land will keep quiet for all these years.
Therefore taking the circumstances in their totality I am of the view that appraisal of the evidence by the learned first appellate Court is not liable to be interfered with even on the ground that another view of evidence could possibly be taken.
9. As far as the contention of the learned counsel for the appellant regarding mode of payment of Rs,39,000 is concerned, the plaintiff-respondent had explained as P.W.4 that after the agreement had been written, the appellant had refused to accept the cheque therefore, he went to the bank, drew the amount of Rs,39,000 on the same date i.e, 13-1-1979 and paid cash to the appellant. It may be observed that if the document was to be forged, such a discrepancy would not have been allowed to incur. As far as the question of limitation is concerned, since no time was specified for completion of the transaction, the time started running from the refusal of the appellant to perform his part of the contract when he filed the ejectment suit against the plaintiff-respondent on 14-11- 1990 and on 10-12-1990 the present suit was filed. Submission of the learned counsel for the appellant that according to P.W.4 (the plaintiff-respondent) time for completion of the transaction was fixed as 1 or 1-1/4 months and, therefore, not only the suit was barred by time but also no case was made out for exercise of discretion in favour of the plaintiff-respondent has no merit. What the plaintiff stated was that the appellant had promised to execute the "registry" or the mutation within 1 or 1-1/4 months. The plaintiff had further stated that after 15/20 days thereafter the appellant contacted the respondent and stated that there was an error in the record regarding the share of the appellant and after getting it corrected he will execute the transaction. It was thereafter. That agreement Exh.P.1 was written. Therefore, absence of the date of completion of the transaction from the agreement Exh.P.1 was properly explained although even after payment of Rs,68,000 neither the mutation was entered nor registered sale transaction was completed. The reason therefore, apparently is that not only the plaintiff-respondent had paid almost the entire sale consideration but was also in possession of the land in dispute and necessity to file the suit for specific performance arose when the appellant filed ejectment case against the respondent.
10. As far as the absence of receipt for Rs,39,000 is concerned, suffice it to say, absence of a separate receipt could not have undone the effect of the evidence produced on the record. As far as payment of Rs,29,000 to the appellant is concerned, the two witnesses examined by the plaintiff-respondent categorically stated that an amount of Rs,29,000 was paid in their presence at the time of the bargain. It was also admitted by D.W.1 the son and the attorney of the appellant that in April or May, 1979 land measuring 201 Kanals, 10 Marlas was purchased in his name. This also lends corroboration to the version of the plaintiff-respondent.
11. As far as Exh.P.1 is concerned, not only an objection was not taken before the learned trial Court when it was produced in evidence but also that the original was on the record of the ejectment case, the file of which was produced and P.W.2 the brother of the scribe identified the writing and the signatures of the scribe on the original.
12. I am quite conscious that the suit in this case was filed on 10-12-1990 while the agreement was executed on 13-1-1979. However the fact remains that almost the entire sale consideration had been paid by the plaintiff to the appellant leaving only a sum of Rs,2,000. And further that undisputedly the plaintiff-respondent continued in uninterrupted possession of the disputed land.
Therefore, the contention of the learned counsel for the appellant that no case was made out for exercise of discretion in favour of the plaintiff: respondent has no merit.
13. The role of a precedent was explained by the Honourable Supreme Court in the Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) is as follows:-- "It is well-settled that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."
' However, the judgments cited by the learned counsel for the appellant have been examined by me. In the case of Province of the Punjab supra, this Court interfered on the basis of its findings that the documents not duly exhibited could not be considered, objection to photocopy of one document was not decided, evidentiary value of an admission was not considered and admissibility of copies of other documents was not decided. In the case of Faqir Muhammad supra the Honourable Supreme Court interfered on the basis of the finding that a suit for specific performance could not have been decreed on the basis of the pleadings of the parties without attending to some important aspect of the case and going into the controversial questions of fact required to be proved and decided on the basis of evidence. It was further noted that neither the specific issues were framed nor the parties produced evidence essential for decision of the said questions. In the case .Of Saleem Akhtar supra this Court interfered on the basis of the finding that the petitioner was minor at the time of the sale, therefore, he was not competent to transfer his property and that payment of sale consideration was not proved. The case of Mirza Arif Baig supra related to a suit for recovery of money filed under Order XXXVII of the Code of Civil Procedure on the basis of a pro note. The suit was dismissed on the ground that payment of consideration had not been proved because the attesting witnesses of the receipt and pro note had not been examined, the alleged signatures of the respondent on the pro note did not tally with the signatures on the written statement and the power of attorney and the evidence of the plaintiff was contradictory and unreliable. These findings were affirmed by this Court. The case of Hazratullah supra involved a dispute arising out of a lease of a bus stand.. The Honourable Supreme Court had observed that oral evidence could not be preferred as against the written agreement. The case of Ghulam Qadir supra is a leave granting order. The case of Mohar Khan and others supra related to the grant of an injunction in a suit for specific performance.
14. Whatever, evidence was produced by the parties was duly considered by the learned first appellate Court in decreeing the suit of the respondent. I have not only examined the evidence carefully but have also compared the signatures of the appellant on Exh.P.1 with his signatures on the Vakalatmana filed before this Court in the light of the evidence produced in the case, a course permissible under Article 84 of the Qanun-e-Shahadat Order, 1984, and I am of the view that the signatures of the appellant on Exh.P.1 and the Vakalatnama filed before this Court have similar characteristics. The appellant could disprove his signatures on Ehx.P.1 by calling Hand Writing Expert but this course was not adopted by the appellant. The balance amount of Rs,2,000 shall be deposited by the respondent in the trial Court within 30 days, unless already deposited.
15. Accordingly this appeal is dismissed.