' SARDAR MUHAMMAD ASLAM, J.---Precisely, the facts of the case are that respondent/plaintiff filed a suit for specific performance of an agreement to sell dated 14-12-1987 in respect of land measuring 17 Kanals, 16 Marlas falling, in Khata No.30 Square No.107 Killa Nos.5 and 6 and Square No.108 Killa Nos.1 and 10 at Mauza Mukhiana Tehsil and District Jhang on the, ground that the petitioner/defendant was in dire need of amount for depositing in the Court in respect of his suit for preemption which was decreed in his favour on 12-11-1987. It was further averred in the plaint that the petitioner/defendant entered into a sale agreement against a consideration of Rs.50,000 amount. The petitioner/defendant filed written statement and denied the execution of agreement by placing golden ornaments in the hand of plaintiff as security . For repayment. He, however, prepared a forged agreement to sell Exh.p.l. The parties were put to issues and have adduced their respective evidence in support of their pleas.
2: Learned trial Court decreed the suit vide judgment and decree dated 14-2-1994. Defendant's appeal was dismissed by Appellate Court on 30-11-1996. Hence this Civil Revision.
3. Learned counsel for the petitioner contends that the learned Appellate Court had passed a mechanical judgment and decree of affirmance without adverting to the grounds embodied in the memorandum of appeal and decision, so .Rendered, is-nullity in the eye of law; that both the Courts below have not-considered properly the questioned agreement of sale, Exh.P.1. According to learned counsel, the earlier part of this instrument recites, that entire purchase price was received but latter part records that on receipt of consideration sale will be effected; that the aforesaid parts arc mutually contradictory and -show that the afore-stated agreement was spurious one. On the strength of above circumstances, it is stated that the decision' rendered by two Courts below suffer from patent illegality and need to be set aside; that the decisions of Courts below are based upon misreading and non-reading of the,. Material on record.
4. Learned counsel for the respondent supported the impugned judgments and decrees on the ground that concurrent findings of facts have been recorded against the petitioner by the learned Courts below which are immune from interference by this Court in exercise of its revisional jurisdiction until any gross misreading and non reading is pointed out; that there is no illegality in the impugned judgments,, therefore, the revision petition as framed and worded may be dismissed.
5. Heard. Record perused.
6. Exh.P1 is the agreement to sell Stamp paper was purchased and reduced into writing on 14-12- 1987. Its contents are of some importance. 17 Kanals, 16 Marlas land was sold allegedly by the defendant in favour of plaintiff. Reasons for' this sale was .a pre-emption suit tiled by the defendant, which was decreed in his favour. He had to deposit the deeretal amount by or before 2- 12-1987, failing which it entailed automatic dismissal. - Narrative of Exh.P.1, indicates that a sum of Rs.50,000 was paid to him in presence of the witnesses on the day this document A was authored.
Specific performance was conditional within a month from the date decision is rendered. It further carries a recital that on decision rendered in the last appeal, defendant will be bound to transfer the land in dispute, within one month. Stance taken by the defendant in written statement as well in his deposition as D.W.2 is' to the effect that he had mortgaged his golden ornaments and secured a sum of Rs.50,000. In his deposition, he stated that many a times Punchayat was constituted but the defendant failed to return golden ornaments, hence he did not pay back the amount. He denied his signatures on Exh.P.l. This document was not sent for comparison of defendant's thumb- impression with his admitted thumb- impression. Parties jointly required this Court to send the requisite documents to a Handwriting Expert for his opinion. Document was sent accordingly.
Director Technical F.I.A. Required.a fresh sample paper of Ahmad, being rolled and plain thumb- impression of both hands. In the meantime, Ahmad had expired, therefore, further exercise became fruitless.
7. P.W.l Allah Bakhsh produced Register of the Stamp vendor, Maqbool Ahmad P.W.,2 stated that stamp paper Exh.Pl was issued by him. He sold the same on 14-12-1987. In cross-examination, he stated that he did not know defendant personally. All other stamp papers sold did not bear identity card numbers of either the vendors or the vendee except defendant. Hassan Muhammad P.W.5, stated that stamp paper Exh.P.l, was authored by him. It was read over. A sum of Rs.50,000' was paid by plaintiff to the defendant and defendant thumb-marked the document in his presence. In cross-examination, he stated that Register Wasiqa Naveesi is in his possession. He did not bring the same that day. The marginal witnesses were personally known to him. Allah Ditta appeared as P.W.4 while Khalid as P.W.5. They corroborated the plaintiff's stand. D.W.l, Qandar, stated that the defendant had received a sum of Rs.50,000 in his presence after pledging his golden ornaments.
No agreement in regard to suit took place. D.W.2 Ahmad himself denied the allegation made in the plaint.
8. Undeniably, the agreement in dispute was written on 14-12-1987, while the last date for deposit of decretal amount before the learned trial Court in pre emption suit was 2-12-1987. This shows that defendant have deposited the amount, before the emergence of Exh.P.l. The entire fabric built in Exh.p.l agreement to sell that the Amount was paid on the date when the' document was authored is negated when defendant had already deposited the decretal amount on 2-12-1987. Whether he secured the amount by keeping the ornaments in mortgage or received the same as sale consideration of the land in dispute, cannot be determined on available . Evidence. Constitution of Punchayat on different occasions for return of ornaments and payment of money between the parties has not been proved, though, mentioned by D.W.2. No witness appeared for the defendant on this count. Similarly, no reason has been advanced by the plaintiff in support of Exh. PI, authored on 14-12-1987, indicating payment of Rs.50,000 sale consideration of the suit- land, when by that date, he had already deposited the decretal amount. Evidence of both the parties is deficient to determine the real controversy.
9. For what has been discussed above, I feel that it is a case which requires further evidence. In this' view of the matter, this civil revision is allowed, the impugned judgments and decrees are set aside and the case is remitted back to the learned trial Court to grant permission to both the parties to produce further evidence in support of their pleadings and decide the case afresh on the basis of evidence already, available on record and further to be produced by the parties. No order as to costs.
Case remensed.