' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This revision application is directed against the judgment and decree dated 29-8-1984 passed by the learned District Judge, Thatta dismissing Ist Appeal No,37/82 and upholding the judgment and decree dated ,27-9-1982 passed by the Senior Civil Judge Thatta, whereby the F.C. Suit No,79/80 filed by respondent Muhammad Hayat was decreed.
2. The relevant facts are that respondent Hayat filed suit for Specific Performance of Contract and Injunction alleging that the agricultural land bearing S. Nos.l to 69; 71 to 81; 102 to 105; 111 to 114; 475 to 499; 638 to 642 admeasuring about 512' Acres belonged xto Abdul Ghafoor son of Sher Ali Nizamani, Mst, Amina wife of Sanaullah Khan Nizamani, Ahmed Khan, Muhammad Khan and Mst.
Hawa sons and daughters of Sanaullah Khan Nizamani. It was alleged that the land is situated in the riverian area within the protective bund of Indus River. The -land remains partially submerged in the river water and reappears from time to time. It was further alleged that under and agreement of sale dated 4-11-1965 applicant Abdul Ghafoor agreed to sell S. Nos.64 to 69 and 71 to 81 admeasuring 34-36 Acres from the above land for Rs,3,500. Applicant Ghafoor received Rs,1,200 and the balance was payable at the time of execution of the sale-deed. Again on 9-12-1969 applicant Haji Abdul Ghafoor for himself and other owners agreed to sell the entire land ad measuring 512 Acres for Rs,64,000 to the plaintiff. The applicant received Rs,3,000 and put the plaintiff/respondent in possession of the suit-land. Again on 21-8-1975 the other co-owners Mst.
Amina, Ahmed, Khan, Muhammad Khan and Mst. Hawa agreed to sell the suit-land to the plaintiff/respondent and thereby confirmed the previous agreement executed by the defendant No, 1 /applicant on their behalf. It was averred that from time to time the defendants- have been receiving the part payments of the suit-land and executing agreements and receipts. In all they received Rs,13,500 till the filing of the suit. It was Contended that the Forest Department raised dispute over some portion of the suit-land. The defendants, therefore, filed Suit No,30/72 for Declaration and Permanent Injunction against the Government and the plaintiff/ respondent Hayat. The suit was decreed on 26-11-1972. At this stage it would be appropriate to refer the contents of Suit No,30/72 filed by Abdul Ghafoor and others. It was stated in the plaint that they own 512 Acres of land which is their ancestral property. By virtue of section 184 of the West Pakistan Land Revenue Act, 1967 and being in possession of the entire land which reappeared from the river they had proprietary rights as on 31-12-1970 and must be deemed to be the owners of the land for all intents and purposes. They further contended that there was no authorised forest on the suit- land at any time. It was alleged that in or about the year 1968 they came to know that the D.F.O.
Thatta leased out an area of about 130 Acres from the suit-land to defendant Muhammad Hayat claiming the same to be the government land vesting in the Forest Department. Defendant Muhammad Hayat took forcible possession of the land under the purported authority of the Forest Department and brought it under Banana cultivation. On the protest of the plaintiffs, defendant Muhammad Hayat referred them to the Forest Department authorities, but to no avail. It was alleged that defendant Hayat was convinced that the land taken up by him on lease were not the Government lands but he insisted that he would surrender the possession to the Forest Department unless plaintiff obtained a Court order. They, therefore, filed the suit seeking declaration that the plaintiffs were the owners of the suit-land and that the Forest Department had no right, title or interest therein. The permanent injunction was also sought against defendant No,2 Muhammad Hayat from restoring the possession of land to defendant No, 1 Forest Department. The survey numbers were shown in the said suit. Statement of applicant Abdul Ghafoor was recorded in Suit No,30/70 wherein he stated that he came to know in the year 1968 that defendant'No,2 Flayat encroached upon 130 Acres of his land. The written statement filed by Hayat in Suit No,30/72 has not been brought on record in this case but the deposition of Haji Abdul Ghafoor contains note that Muhammad Hayat had not disputed the claim in his written statement. In cross-examination to the counsel for defendant No,2 Abdul Ghafoor stated that when he pressed defendant No,2 Hayat to surrender the possession of land to him he offered to purchase the same. There was an agreement between them for purchase of the land. Abdul Ghafoor further stated that defendant Muhammad Hayat spent a lot of money and got the land levelled and made it cultivable. He further stated that the land continues to be in possession of defendant Hayat and if he succeeded in getting decree he would' sell the land to defendant No,2 which is in his possession. In cross- examination to Mr. Jhamatmal the then Assistant Government Pleader, Abdul Ghafoor stated that the agreement for sale of land to Hayat was at the rate of Rs,125 per Acre. He further stated that he does not remember whether the agreement was made before or after the filing of the suit but it was entered in or about that time. It was further stated that the remaining land was also given to' defendant No,2 by an agreement. Agreement regarding the suit-land other than the land given, to Hayat by the Forest Department was made 2/3 months before the filing of the suit. It was an oral agreement.
He further stated that defendant Hayat Was in possession of 100 Acres of land other than 130 Acres given to him by the Forest Department. As I have already observed the suit was decreed in the year 1974. In Suit No, 12/80' Muhammad Hayat alleged that he was all along ready and willing to perform his part of the contract and to pay the balance amount but the defendants avoided the performance of contracts and hence this suit.
3. The defendant No,l Abdul Ghafoor filed written statement alleging that the appeal was filed by the Government against the judgment and decree in Suit No,30/72 being Appeal No, 12/75 which was still pending adjudication in the High Court. Abdul Ghafoor admitted that he had taken a loan of Rs, 1,200 from Muhammad Hayat as he needed money for the purpose of filing the suit against the Government for declaration of his title. He denied the agreement to sell in favour of plaintiff and contended that Hayat taking advantage of the weak position of defendant.No,l got the document executed from him as sale agreement for an area of 34-36 Acres. He further denied the execution of sale agreement for sale of entire land admeasuring about 512 Acres for a consideration of Rs,64,000 and accepted Rs,3,000. The part payment from time to time was also denied during the pendency of the suit. The defendants Mst. Amina, Ahmed Khan, Muhammad Khan and Mst. Hawa entered into compromise with plaintiff Muhammad Hayat on 30-10-1980 and they were deleted from the array of parties as defendants. The suit thus proceeded between Muhammad Hayat and Abdul Ghafoor and the following issues were framed.
"(1) Whether the defendant No,l is an agriculturist within the meaning of D.A.R. Act?
(2) Whether the defendant No,l had agreed to sell on 4-11-1965 S.Nos.64 to 69 and 71 to 81 measuring 34-36 Acres from the said S. Nos. For Rs,3,500 and received Rs, 1,200 as its part payment?
(3) Whether the defendant No,l himself and for other defendants had agreed to Sell on 9-12-1969 land measuring 512 Acres from the above S. Nos. For Rs,64,000 and received Rs,3,000 as part payment of the same?
(4) Whether the defendant No,l has received Rs, 13,500 as part payment of the consideration against the said alleged agreement, for suit-land from the plaintiff till the institution of the suit?
(5) Whether the plaintiff has been in possession of the suit-land since the alleged sale to him and that he has spent lacs of rupees on the development of the suit-land?
(6) Whether the defendant No,l has received no money from the plaintiff except Rs, 1,200 and Rs,200, Rs,500 and Rs,300 only as loan from the plaintiff and not as part payment of the consideration of the suit-land?
(7) Whether no cause of action has accrued to plaintiff to bring the suit against the defendant No,l?
(8) Whether the suit is not maintainable in law?
(9) Whether the suit is time-barred?
(10) Whether the suit is undervalued and insufficiently stamped?
(11) What should the decree be?
4. The plaintiff examined himself only on the above issues while the defendant Haji Abdul Ghafoor examined himself and one D.W. Muhammad Ismail. Plaintiff Muhammad Hayat stated that the defendants were the original owners of the suit-land 0.50 paisas were owned by defendant No,l Haji Abdul Ghafoor and the remaining 50 paisas share were owned by defendants Nos.2 to 5.
Defendant No,l agreed to sell about 34 Acres from the suit-land in the year 1968 for consideration of Rs,3,000. He received Rs, 1,200 from him and put him in possession of 34 Acres. After about one year the defendant further agreed for self and on behalf of the other defendants to sell the remaining land to him for a sale consideration of Rs,64,000. The defendant No,l received Rs,3,000 from him and put him in possession of the entire suit-land. In the year 1975 defendants Nos.2 to 5 agreed to sell their share, which was already agreed to be sold by defendant No,
1. After this agreement the defendants received different amounts from time to time aggregating Rs, 13,500 and executed receipts and agreements in his favour. On- some portion of the suit-land, Forest Department raised dispute and defendants filed a suit for declaration and injunction against him and Forest Department. This suit was decreed by the learned District Judge in the year 1974. He further stated that he developed the land and raised Banana crop. He also raised one protective bund for the protection of river action. The development of the land cost him about Rs,2,50,000 and the raising of protective bund about Rs,8,00,000 to 9,00,000. At the expenditure of Rs, 1,25,000 he got the watercourse, excavated. The water was flown in the watercourse through pumping machine.
He further stated that defendants were approached for execution of sale- deed, but he was kept on false hopes and, therefore, he filed the suit. He stated that during pendency of the suit the defendants Nos.2 to 5 compromised and on submission of compromise application the Suit against the said defendants was decreed. He further stated that he was prepared to pay the balance amount to defendant Haji Abdul Ghafoor and perform his part of contract. He produced the certified true copy of decree in Suit No,30 of 1972, which was filed by defendant Haji Abdul Ghafoor against him and the Forest Department as Exh.39. He further produced certified true copy of the statement of defendant Haji Abdul Ghafoor in the above suit as Exh.40. He stated that in the statement defendant Abdul Ghafoor admitted the sale transaction in his favour. He further produced receipt dated 10-3-1970 executed by defendants Nos. 1 to 3 as Exh.41. According to him, this receipt was in the handwriting of defendant No, 1 and was signed by defendants. Nos. 1 to 3 in his presence. He further produced receipt dated' 2-10-1970 allegedly written and signed by defendant No,l as Exh.42. He also produced three other receipts Exhs.43, 44 and 45. He produced agreement dated 5-11-1965 Exh.46 executed by defendant No, 1 in respect of 34-36 Acres of land.
According to him, it was signed by defendant for self and on behalf of other defendants and was attested by Joint Sub-Judge, Hyderabad. He also produced another agreement dated 9-12-1969 Exh.47 executed by defendant No,l for self and on behalf of other defendants .He produced another agreement dated 24-2-1975 Exh.48 executed by defendant Abdul Ghafoor. According to him, it was written in the hand of defendant No,l. He stated that the land was in his possession and he was paying land revenue. In cross-examination he admitted that about 100/130 Acres of land were leased out to him by Forest Department in the year 1967 and the defendants had filed suit in District Court seeking declaration that the land leased out by Forest Department belonged to them. He further admitted that he got possession of the land, which was leased out to him by the Forest Department. He stated that this land was leased out for a period of three years. He further stated that while he was holding the land on lease from Forest Department an area of about 35 Acres which belonged to the defendants was agreed to be sold to him. He further held 80 Acres of land on Yak Sala grant from Mukhtiarkar Ghora Bari. He further stated that he was defendant in the civil suit filed by defendants against Forest Department in the District Court. He had filed the written statement. He stated that he does not remember whether he had produced the documents, which he has produced in this suit, in Suit No,30 of 1972, which pertained to the purchase of suit-land by him from the defendants. He further stated that he does not remember if he mentioned in the written statement in the Suit No,'30 of 1972 that he had purchased the lands from defendants. He stated that the sale agreement Exh.46 was written by a Stamp vendor in the presence of Ali Bukhsh and Gurgage. He stated that it was attested by Joint Sub-Judge in presence of the parties and witnesses at Hyderabad, but he does not remember whether the office of Joint Civil Judge was situated in District Court building or Civil Court building. He further explained that Mr. Bakht Ali Jakhrani was the Joint Civil Judge, who was known to him prior to the attestation of sale agreement Exh.46. He denied the suggestion that Exh.46 is a false document and does not bear the signature of Abdul Ghafoor and that it was prepared after filing of the suit. He further stated that lease by Forest Department was cancelled after two years and the possession of the land was demanded by Forest Department, but he did not hand over the possession, because there was stay order by the Court and he was restrained from handing over possession to Forest Department.
He stated that the sale agreement Exh.47 was executed at Hyderabad. These documents were also written by stamp vendor and his witnesses were Abdul Rashid and Muhammad Umar. He conceded that the sale agreement Exh.47 does not bear his signature. He further stated that the survey numbers are not given in the sale agreement Exh.47 and he was already in possession of the land, therefore, no mention was made about possession. He further conceded that it is not .Mentioned in sale agreement Exh.47 that l/3rd of the land of the defendants was under river action. l/3rd consisted of sand dunes and l/3rd was under cultivation as stated by him at trial. He denied the suggestion that the sale agreement Exh.47 was not signed by defendant Abdul Ghafoor and he has prepared a false document to save his crop from the Forest Department as they had cancelled his lease. He further denied the suggestion that the defendant No,l Abdul Ghafoor had not executed any sale agreement with him regarding suit-land. He further stated that he paid the amount shown in the receipt Exh.41 at his residence at Latifabad, Hyderabad.
' According to him, Murad Ali and'Iqbal Baloch were sitting at that time but those witnesses did not sign the receipt Exh.41. He denied the suggestion that receipt Exh.41 was false. He admitted that the receipt Exh.42 does not bear his signature and the signatures of witnesses. He further stated that he paid amount shown in the Exh.42 at his residence at Latifabad. He conceded that receipt Exh.43 does not bear the signatures of witnesses and so also the receipt Exh.44. He stated that all the payments were made by him at his residence at Latifabad. He further stated that he paid Rs,500 shown in Exh.46 at his land in presence of witness Muhammad Hassan Khushk and Mistary Lashkari. He denied the suggestion that receipt Exh.48 is false document. He further denied the suggestion that defendant Abdul Ghafoor had taken the amount shown in the receipt Exhs.42 and 44 and other receipts as loan to pursue the civil suit, which he had filed against the Forest Department. He further admitted that he did not serve any notice on defendant Abdul Ghafoor asking the execution of sale deed before filing the suit.
5. The applicant/defendant Haji Abdul Ghafoor deposed in his statement Exh.52 that in 1970. Forest Department encroached upon his land and leased out the same to plaintiff. The lease was for an area of 130 Acres. He, therefore, filed suit against the Forest Department and plaintiff Muhammad Hayat. The suit was decided in this favour. He stated that he never sold the suit-land to plaintiff, but received some amount from the plaintiff as loan. He further stated that he received Rs, 1,200 from one Haji Murad Ali and received the amount of Rs,200, Rs,300 and Rs,500 at different times as he was in need of money for the expenses of litigation. He stated that he has not executed any agreement of sale in respect of his land in favour of plaintiff.- He also denied to have received Rs, 13,500 from plaintiff towards the sale of suit-land. He specifically stated that Exh.47 does not bear his signature. He further stated that he executed one agreement with Haji Murad Ali in the year 1965, which was for the sale of 35 Acres of land. He further stated that he never handed over possession of the suit- land to the plaintiff. In cross-examination he denied his signature on the receipt Exh.42 and further denied that it was in his handwriting. He further denied his signature on receipt Exh.43 and sale agreement Exh.46. He further stated that he does not remember if he stated in his statement - in Suit No,30 of 1972 that he agreed to sell the suit-land to Muhammad Hayat after the suit was decreed. He conceded that there was an agreement between him and plaintiff that he will sell the land to plaintiff, which was in his possession. He stated that receipt Exh.45 is alleged to have been signed by his son, but he cannot say whether it bears the signature of his son or not. He denied the suggestion that Exhs.41, 42, 43, 44 and 48 were in his handwriting and were bearing his signatures. In cross-examination he denied the signature on sale agreement Exh.47, but admitted his signature on Exh.46 and stated that he executed this agreement after getting consideration and fully Understanding the document (The handwriting of the defendant was obtained by the Court at the request of learned counsel for plaintiff and it was placed on record as Exh.55). He denied the suggestion that he received Rs, 1,200 from plaintiff and agreed to sell the land admeasuring 34-36 Acres. He stated that the sale agreement was executed by him in favour of Haji Murad Ali. He denied that in the year 1969 the entire suit- land was agreed to be sold to plaintiff for consideration of Rs,64,000 and he received Rs,3,000 from plaintiff. He denied the receipt of Rs, 13,500 from plaintiff towards the part payment of sale consideration. He reiterated that he received Rs,200, Rs,300 and Rs,500 as loan from plaintiff. He admitted that suit-land is in possession of the plaintiff but denied that he has handed over the possession of the land to the plaintiff. At the time of execution of agreement to sell. D.W. Muhammad Ismail deposed that in his presence defendant had taken Rs,500 from the plaintiff as loan. The learned trial Court after hearing the arguments decided the issues as follows:- "Issue No,l As discussed. Issue No,2 Affirmative.
Issue No,3 Affirmative.
Issue No,4 Affirmative.
Issue No,5 Affirmative.
Issue No,6 Not pressed. Issues Nos.7,8,9 & 10 As discussed. IssueNo,il Suit decreed."
6. While deciding Issue No,2 the learned trial Court held that the defendant admitted his signature on Exh.46 but stated that he had executed sale agreement with Haji Murad Ali. It was observed by the learned trial Court that the admission of defendant No,l about execution of sale agreement Exh.46, but denial in cross- examination created suspicious character in the mind of learned Judge. It was observed that, defendant No,l has not disproved the genuineness of the document.
On the contrary his admission supports the version of the plaintiff that this agreement was executed between the parties hence, issue decided in affirmative.
7. While deciding Issue No,3 the learned trial Court observed that the defendant No,l denied the execution of sale agreement Exh.47 on 9-12-1969, but the plaintiff has produced statement of defendant in Suit No,30 of 1972 as Exh.40, in which the defendant No,l stated that plaintiff who was defendant No,2 in that suit, offered to purchase land from him and such agreement was executed between them. The learned trial Court further observed that there is admission of the transaction between the parties by the defendant No, 1 in his own statement in Suit No,30 of 1972. It was further observed that although defendant No,l has denied the execution of sale agreement Exh.47, but he has admitted to have received Rs,200, Rs,300 and Rs,500 at different times. The receipts were produced by the plaintiff and no question was put do plaintiff in cross- examination that Exh.47 or other receipts are forged documents. It was further observed that the defendant No,l had failed to prove that he has not executed and signed the receipts and sale agreement Exh.47 with these observations he decided the Issue No,3 in affirmative.
8. While deciding Issue No,4 which pertained to the receiving of Rs, 13,500 as part payment of sale transaction against the alleged agreements for sale of the suit-land, the learned trial Court observed that he has discussed this issue thoroughly while deciding Issues Nos.2 and 3 and it does not require further discussion. The learned trial Judge however, observed that he will put some light on it. He then observed that plaintiff produced receipts of payment Exhs.41, 42, 43 and 44 and two agreements Exhs.46 and 47. It was further observed that the plaintiff has alleged the payment of Rs,47,000 to defendant No,l and defendant No,l has not rebutted this fact nor he has proved that any amount was given to him as loan. With these observations the issue was decided in affirmative.
9. The Issue No,5 was decided in affirmative simply for the reason that the plaintiff was in possession of the suit-land.
10. The finding on Issues Nos.6 to 10 are not material and, therefore, I will to advert to them.
11. While deciding Issue No, 11 the learned trial Court observed that the plaintiff has prayed for the execution of sale deed after receiving the balance amount and lias also prayed that defendant be restrained from interfering in his peaceful possession. The plaintiff has proved his case and, therefore, the suit was decreed.
12. The appellants being aggrieved preferred appeal before the learned District Judge, Thatta. It would be appropriate to reproduce the findings of learned 1st Appellate Court on Issues Nos.2, 3,4 5 and 9, which read as follows:- "Issue No,2.
' On this issue there is positive statement of the respondent/ plaintiff which briefly reads as under:- ' "The defendants were the original owners of the suit-land.
0.50 paisa owned by defendant No,l' and the remaining 0.50 were owned by defendant Nos.2 to 5.
Defendant No, 1 agreed to sell about 34 Acres from the suit-land to me in the year 1968 for about 3,000, he received Rs, 1,200 from me and put me in possession of those 34 Acres."
' The respondent also produced the relevant agreement (Exh.46) which fully supports his version. In cross- examination the above oral and documentary evidence has remained unshaken. He deposed that Exh.46 was executed before the Joint Sub-Judge and FCM Barkat Ali Jakhrani on 5- 11-1965. This piece of evidence has almost gone unchallenged and unrebutted. On the contrary in cross- examination, he reiterated that Mr. Bakhat Ali Jakhrani was known to him (the respondent) prior to the attestation of Exh.46 as the respondent was also original resident of Jaccobabad and came to Deh Marho Vighore as Zamindar in 1965. He also denied the suggestion that Exh.46 is false document and it was prepared after filing of the suit.
' It is also a matter of record that admittedly the appellant/defendant No, 1 had filed Suit No,30 of 1972 for declaration and injunction against the Province of Sindh and Muhammad Hayat (who was defendant No, 2 and is now respondent). In that suit the appellant/defendant No, 1 in his statement inter alia deposed as follows:- ' "When I pressed the defendant No,2 to surrender possession to me, he offered to purchase the land from me. There was such an agreement between us for the purchase of land* by him. When the land reappeared, a portion of it was cultivable and portion was uncliltivable. The defendant No,2 had spent lot of money and got the land levelled and made, it cultivable. The land continues to be in possession of defendant No,2. If I succeed in getting decree, I would sell to the defendant No,2, the land in his possession.
' The above statement of appellant/ defendant No, 1 also corroborates the version of the respondent/ plaintiff. As. Against the above evidence on record the appellant in his deposition denied having sold suit and to the respondent/plaintiff but at the same time admitted that he had taken Rs,200, Rs,300 and Rs,500 at different times from the respondent to meet the expenses of his litigation against Forest Department. He also denied having executed any agreement of sale or that he had given possession of the suit-land to the respondent. In cross-examination at one stage he denied that Exh.46 bears his signature but in the same cross- examination he admitted, "Exh.46 bears my signature. I have executed the agreement after getting consideration and fully understand".
' The learned Advocate for the appellant during the arguments .Also admitted the execution of document Exh.46 by the appellant and his signature on it.
' In view of the evidence on record the learned lower Court has rightly answered this issue in affirmative. Issue Nos.3, 4, 5 and 9.
The statement of respondent on these issues is also to the following effect:- ' "After about one year defendant No,l for self and on behalf of other defendants agreed to sell the remaining entire land tome.
' The price of entire suit-land was fixed Rs,64,000. Defendant No,l received Rs,3,000 from me and put me possession of entire suit-land. In the year 1975 defendant Nos.2 to 5 agreed to sell their share which was already agreed to sell by defendant No,l. After this agreement the defendants were receiving the amount from time to time and had been executed receipts and agreements in my favour. I showed the detail of payments made by in plaint which I produce as Exh.38. According to that I had paid Rs, 13,500 towards the part payment of sale price".
' The respondent/plaintiff also produced receipts (Exhs.41 to 45 and agreement Exh.47). There is vague denial of the execution of these documents by the appellant. However, I have compared his signatures on these documents along with the admitted signatures available on record. I find no discrepancy in this regard. I am satisfied that documents produced and relied upon by the respondent bear the signatures of the appellant. Learned lower Court has thoroughly examined the evidence of the parties and I see no reason to disturb the findings of the lower Court on these issues. The appellant has examined Muhammad Ismail (Exh.56) but his evidence is hardly of any help to the appellant and it seems that he is set up witness as it is evident from his cross- examination. He has no knowledge about the facts of the case including the factum of payment made by the respondent to the appellant.
' On the point of possession also the respondent discharged his burden successfully through his oral and documentary evidence. There is absolutely no denial of the fact throughout in the evidence that the respondent has not been in possession of the suit-land or that he has not raised banana cultivation. The learned lower Court has discussed this aspect and has rightly believed the version of the respondent keeping in view the statement of appellant in Suit No,30 of 1972. During the course of arguments the learned counsel for appellant attacked the admissibility of agreements being unregistered documents suffice to observe that these documents are not hit by the provision of sections 17 and 49 of the Registration Act and suit was also not time-barred. The finding on issues under consideration are maintained. "
13. Consequent to the above findings the appeal was dismissed.
14. The applicant still feeling dissatisfied has preferred this revision application.
15. During pendency of the proceedings Abdul Ghafoor and Muhammad Hayat both expired and their L.Rs, were joined. Two L.Rs, namely Abdul Shakoor Nizamani and Mst. Jannat son and daughter of Abdul Ghafoor, withdrew the revision application with the result that the revision application has been pursued on behalf of two sons of Haji Abdul Ghafoor namely Abdul Sattar Nizamani and Abdul Jabbar Nizamani.
16. I have heard Syed Madad Ali Shah, learned counsel for the applicants and Mr. Jhamat Jethanand, learned counsel for the respondents.
17. Mr. Syed Madad Ali Shah, learned counsel for the applicants has submitted that both the learned Courts below have ignored the facts available on record and have deliberately distorted the facts. He has further submitted that the learned trial Court has very strangely observed while deciding Issue No,2 that the defendant No, l has not disproved the genuineness of the documents.
The learned counsel has submitted that the respondent Muhammad Hayat filed the suit for specific performance of the contract and, therefore, the burden of proof was on the plaintiff and not on the defendant. He has contended that late Haji Abdul Ghafoor admitted his signature on Exh.46, but stated that it was between him and Murad Ali. Mr. Syed Madad Ali Shah has pointed out that according to agreement Exh.46 there were three prospective purchasers namely Raees Muhammad Hayat Khan, Raees Murad Ali Khan and Seth Asghar Ali. He has contended that the learned two. Courts below have not considered this fact at all and have wrongly held that Abdul Ghafoor admitted the execution of sale agreement Exh.46. He has further pointed out that plaintiff Muhammad Hayat admitted in his cross-examination that in Exh.46 three cosharers are shown namely Muhammad Hayat the plaintiff, Raees Murad Ali and Seth Asghar Ali. He further contended that plaintiff Muhammad Hayat admitted that the sale agreement Exh.46 does not bear the signatures of the purchasers. He submitted that Muhammad Hayat filed suit for specific performance of the contract and in order to succeed in such suit it is incumbent upon the plaintiff to prove the existence of the contract. He has submitted that since the sale agreement Exh.46 is not signed by Muhammad Hayat, therefore, it is not a contract, as consent of Muhammad Hayat had not' been signified. He further contended that Haji Abdul Ghafoor denied to have appeared before Joint Sub-Judge Hyderabad whose endorsement appears on the document in the following term:- ' "On S.A. Before me. The deponent is known to Muhammad Hayat Khan."
18. The document further shows that Haji Abdul Ghafoor was identified by Muhammad Hayat the respondent. He further contended that Haji Abdul Ghafoor was not a deponent as he had not sworn any affidavit, but had signed an agreement unilaterally, which according to him was between him and Raees Murad Ali. He further contended that signature of one attesting witness namely Gurgage appears on the margin of Exh.46, but he was not produced by plaintiff Muhammad Hayat.
Mr. Syed Madad Ali Shah has contended that when the execution of sale agreement Exh.46 in favour of Muhammad Hayat was specifically denied in para.4 of the written statement it was incumbent upon the plaintiff to call the attesting witness and the Magistrate. He has submitted that the .Learned trial Court has wrongly placed the burden of disproving the document on defendant Haji Abdul Ghafoor. He has further pointed out that the learned 1st. Appellate Court has observed that in cross- examination the oral and documentary evidence produced by plaintiff has remained unshaken and this piece of evidence has almost gone unchallenged and un-rebutted.
This observation is contrary to the observation made by learned 1st Appellate Court in the same para, to the effect that, "he also denied the suggestion that Exh.46 is false document and it was prepared after filing of the suit. Mr. Syed Madad Ali Shah has submitted that when it was specifically suggested to plaintiff Muhammad Hayat that sale agreement Exh.46 is a false document then it is ridiculous to observe that the statement of plaintiff has gone unchallenged and unrebutted. Mr. Syed Madad Ali Shah has further submitted that the learned 1st Appellate Court referred to the alleged admission of defendant Haji Abdul Ghafoor in Suit No,30 of 1972. In that suit the defendant No, 1, inter alia, deposed as follows:- ' "When I pressed the defendant No,l to surrender possession to me, he offered to purchase the land from me, there was such an agreement between us for the purchase of land by him. When the land reappeared, as portion of it was cultivable and a portion was uncultivable. The defendant No,2 had spent a lot of money and got the land levelled and made it cultivable. The land continues to be in possession of defendant No,2. If I succeed in getting decree, I would sell to the defendant No,2 the land in his possession".
19. He has pointed out that the' 1st Appellate Court has observed that this statement corroborates the version of the respondent/plaintiff. As against the above evidence on record the appellant in his deposition denied for having sold the land but at the same time admitted that he had taken Rs,200, Rs,300 and Rs,500 at different times from the respondent to meet the expenses of litigation against the Forest Department. The 1st Appellate Court further observed that Haji Abdul Ghafoor denied having executed any agreement to sell or that he had given possession of the suit-land to the respondent. In cross- examination at one stage denied that Exh.46 bears his signature but in the same cross- examination he admitted, the same. He contended that the 1st Appellate Court wrongly observed that the Advocate for the appellant during the arguments admitted the execution of document Exh.46 by the applicant. After making these observations the 1st Appellate Court held that in view of the evidence on record the learned lower Court has rightly answered this issue in' affirmative. Mr. Syed Madad Ali Shah contended that first, the deposition of Haji Abdul Ghafoor in Suit No,30 of 1972 to the effect that when he pressed Muhammad Hayat to surrender possession of the suit- land, he offered the plaintiff to purchase the land from him and there was such an agreement between them for the purchase of land and that if he succeeded in getting decree he would sell to the defendant No,2 the land in his possession, has been taken as corroboration to the version of the respondent/plaintiff. He contended that the version of plaintiff in plaint was that under an agreement of sale dated 4-11-1965 defendant No,l agreed to sell Survey Nos.64 to 69 and 71 to 81 admeasuring 34-36 Acres from the above mentioned land for Rs,3,500.
The defendant No,l had received Rs, 1,200 and the balance was payable at the time of execution of sale- deed. In his deposition at trial Muhammad Hayat stated that, "defendant No,l agreed to sell about 34 Acres from the suit-land to me in the year 1968 for Rs,3,000. He received Rs, 1,200 from me and put me in possession of those 34 Acres. After about one year defendant No,l for self and on behalf of other defendants agreed to sell the remaining entire land to him, the price of entire suit- land was fixed at Rs,64,000", He pointed out that the sale agreement Exh.47 is dated 9-12-1969 and if calculated from that date the sale agreement Exh.46, which was allegedly executed one year, before should be in the year 1968 as stated by Muhammad Hayat in opening portion of his deposition but the sale agreement Exh.46 is dated 5-11-1965 and this glaring contradiction has been ignored by both the Courts below. He has further submitted that in his written statement, filed in Suit No,30 of 1972 by Haji Abdul Ghafoor, Muhammad Hayat had not stated that there is any agreement of sale between himself and Haji Abdul Ghafoor executed in the year 1965 or 1968 or in the year 1969. He has contended that if such agreements particularly Exh.46 and Exh.47 were in existence, Muhammad Hayat should have produced the same. There is no explanation as to why Haji Abdul Ghafoor whose depositidn dated 10-3-1973 has been produced as Exh.40 by Muhammad Hayat, was not confronted with sale agreements Exhs.46 and 47. Haji Abdul Ghafoor stated in his examination-in-chief that, "I came to know in the year 1968 that the defendant No, 2 (Muhammad Hayat) had encroached upon about 130 Acres of my land. He started using tractors on the land. I contacted him and told him that the land belonged to me. He told me that the land was granted to him by the Forest Department and I should settle the matter with them. I approached the Forest Department authorities, but they did not listen to me. I showed the papers in my possession of my title to the defendant No,2 but he did not surrender possession to me. I then filed this suit". The cross-examination of Haji Abdul Ghafoor by Advocate for Muhammad Hayat shows that this version has gone totally unchallenged. Haji Abdul Ghafoor was never confronted with the fact that he executed sale agreements Exh.46 and Exh.47 and in part performance of the contract he received part payments or that in pursuance of the sale agreement he handed over the possession of the land ,to Muhammad Hayat. Muhammad Hayat has stated in his suit that in the year 1968 Haji Abdul Ghafoor received Rs, 1,200 from him and puf him in possession of 34 Acres and after about one year he executed another sale agreement for consideration of Rs,64,000, received Rs,3,000 from him and put him in possession of the entire land. As against this, Haji Abdul Ghafoor stated in Suit No,30 of 1972, on 10-3-1973 that, "he came to know in the year 1968 that Muhammad Hayat encroached upon 130 Acres of his land. He further stated that remaining land continues to be in his possession since its release from lease in the year 1961". This statement also remained unchallenged and now it does not lie with Muhammad Hayat, to depose in the year 1981 that the possession of land was handed over to him in the years 1968 and 1969 in pursuance of sale agreements Exh.46 and Exh.47. He has pointed out that the version of Haji Abdul Ghafoor was unchallenged by Muhammad Hayat, but Mr. Jhamat Jethanand the then A.G.P. Appearing for the Government asked several questions, in reply whereof Haji Abdul Ghafoor stated that there is oral agreement between himself and defendant No,2 for sale of land to defendant No,2.
20. Mr. Syed Madad Ali Shah had contended that the alleged oral agreement was not a contract, but it was mere understanding for sale of the land to Muhammad Hayat after the suit was decreed.
He has pointed out that according to Exh.39 Suit No,30 of 1972 as decreed on 28-11-1974. Mr. Syed Madad Ali Shah has further submitted that Muhammad Hayat stated in his examination-in-chief in this suit that Exh.47, the agreement of sale of entire remaining land was executed on 9-12-1969. In cross-examination it was specifically asked from Muhammad Hayat that Exh.46 is a false document and was prepared after filing of the suit. The execution of Exh.47 was also denied and Muhammad Hayat further admitted that Exh.47 also does not bear his signature. He further conceded that in Exh.47 the particulars and survey numbers of the land are not shown. Another suggestion was made to Muhammad Hayat, which was denied that Exh.47 is not signed by defendant No,l Haji Abdul Ghafoor and Muhammad Hayat prepared this false document to save his crop from the Forest Department as they had cancelled his lease. Another suggestion was made, which was denied that no sale agreement was executed between him and defendant Haji Abdul Ghafoor. He has further pointed out that Muhammad Hayat admitted in his cross- examination that Exhs.42, 43 and 44 do not bear signatures of witnesses. A clear suggestion was made to Muhammad Hayat, which was denied that the amounts shown in Exhs.42 and 44 represented the loan, which he had taken to bear the expenses of civil suit filed in Thatta. Mr. Syed Madad Ali Shah has further pointed out that in his deposition Haji Abdul Ghafoor specifically denied the execution of same agreements Exhs.46 and 47. He has submitted that the learned trial Court has deliberately made incorrect observations while deciding Issue No, 3 and pointed , out that the learned trial Court observed that the defendant No,l has denied the execution of Exh.47, but has admitted that he received Rs,200, Rs,300 and Rs,500 at different times. The learned trial Court further observed that plaintiff has produced receipts and no question was put that Exh.47 and other receipts are forged documents. Mr. Syed Madad Ali Shah has vehemently argued that these observations are against the evidence on record, which shows that Muhammad Hayat was specifically suggested that the agreements were false documents and that they were not executed by Haji Abdul Ghafoor. He has submitted that the learned trial Court-has again committed a serious error in holding that the defendant No,l had failed to prove that he has not executed and signed the receipts and Exh.47. According to learned counsel the burden was. On plaintiff and it has been wrongly placed on the defendant. Mr. Syed Madad Ali Shah has further pointed out that while deciding Issue No,4, the learned trial Court observed that the plaintiff has alleged that payment of Rs,47,000 was made to defendant No,l and defendant No,l has not rebutted this fact nor he has proved that any amount was given to him as loan. Mr. Syed Madad Ali Shah has submitted that it has nowhere been alleged that the amount of Rs,47,000 was paid to defendant Haji Abdul Ghafoor and this finding is a figment of imagination on the part of learned trial Court.
21. Coming to the finding of 1st Appellate Court on Issues Nos.l to 4, Mr. Syed Madad Ali Shah submitted that the 1st Appellate Court reproduced the portion of deposition of plaintiff Muhammad Hayat to the effect that after about one year the defendant No,l for self and on behalf of other defendants agreed to sell the entire remaining land to him. He has pointed out that he has already argued that this version is contrary to the subsequent version in the deposition of Muhammad Hayat. He has further pointed out that the Appellate Court observed that the plaintiff produced receipts Exhs.41 to 45 and agreement Exh.47 and that there is denial of execution of these documents by the defendant. Mr. Syed Madad Ali Shah has contended that he has already shown that the execution of Exh.47 was specifically denied and the observation made by the 1st Appellate Court i-s incorrect. Mr. Syed Madad Ali Shah has further submitted that the learned trial Court obtained the specimen of handwriting and signature of defendant Haji Abdul Ghafoor, but did not compare the same with the alleged handwriting and signature of Haji Abdul Ghafoor on the disputed documents. The appellate Court, however, compared the signatures and observed, that no discrepancy was found. Mr. Syed Madad Ali Shah has argued that although the-Court was empowered to compare the disputed signatures but it was the duty of Muhammad Hayat to examine some Handwriting Expert to prove that the signatures denied by Haji Abdul Ghafoor were actually his signatures. So far the Appellate Court is concerned, it should have also assigned reasons for holding that the disputed signatures were of Haji Abdul Ghafoor and for that purpose it was required to examine the features of handwriting, which has not been done. There is bald statement only, which does not inspire any confidence. Mr. Syed Madad Ali Shah has finally submitted that although there is concurrent finding of fact of the learned two Courts below and in ordinary course the concurrent finding of fact is not to be disturbed in exercise of revisional jurisdiction, but in the cases where the concurrent findings of fact are totally perverse and absolutely against the material available on record, such findings are liable to be set aside.
22. On the other hand Mr. Jhamat Jethanand has fully supported the judgments of the two Courts below. He has aygued that the learned two Courts bdlow have rightly held that Haji Abdul Ghafoor admitted his signature on Exh.46 in cross- examination. However, Mr. Jhamat Jethanand was . Not able to advance any argument about the genuineness of Exh.47 as Haji Abdul Ghafoor specifically denied his signature on these documents. He further submitted that in paras.4, 5 and 7 of the plaint Muhammad Hayat alleged the execution of sale agreements Exhs.46 and 47 and execution of receipts in token of receiving money in part performance and in paras.4 and 7 of the written statement Haji Abdul Ghafoor admitted that he took a loan from plaintiff of Rs,200 as he needed money for the purpose of filing suit against the Government. Although he denied that he ever agreed to sell away his share or share of anyone for this inadequate amount shown in plaint, but further stated that the plaintiff took advantage of the weak position of defendant No,l by getting the said document executed in respect of land admeasuring 34-36 Acres. He submitted that this amounts to admission and the averment made in para.7 of the written statement also amounts to admission of the plaintiff's version. However, on a bare perusal of paras.5 and 6 of the written statement I find that contents of paras.5 and 7 of the plaint have been specifically denied and it has been further averred that defendant No,l never agreed to sell suit- land to the plaintiff admeasuring about 512-0 Acres for Rs,64,000. It was further denied that he received Rs,3,000 and put the plaintiff in possession. In para.7 of the written statement defendant No,l specifically denied to have received amount in part payment of the sale consideration. The defendant No,l admitted to have received Rs,200, Rs,500 and Rs,300 on 2-10-1970, 18-9-1970 and 26-8-1970 respectively, but as a loan amount from the plaintiff, which was needed to bear the expenses of litigation. Mr. Jhamat Jethanand next argued that the statement of Muhammad Hayat in trial Court has gone unchallenged. On perusal of the statement of Muhammad Hayat I find this version to be incorrect.
Mr. Syed Madad Ali Shah has shown in detail that the version of Muhammad Hayat was specifically challenged in cross-examination. Mr. Jhamat Jethanand argued that the plaintiff Muhammad Hayat was in possession of the suit-land. However, when asked whether there is anything on record that plaintiff Muhammad Hayat acquired the possession of the suit-land in pursuance of alleged sale agreement or he was in possession of the land as lessee. Mr Jhamat Jethanand stated that he cannot say anything, as he does not know as to what was the plea of Muhammad Hayat in this regard. He was also unable to point out anything on the record to suggest that the plaintiff acquired the possession of the suit-land in pursuance of sale agreements as a prospective purchaser. Mr. Jhamat Jethanand realizing the fact that the execution of sale agreements Exh.46 and Exh.47 were specifically denied and there is no explanation as to why the sale agreements Exhs.46 and 47 were not confronted to Haji Abdul Ghafoor when his evidence was recorded in the year 1973 in Suit No,30 of 1972 filed at Thatta, raised plea that even if Muhammad Hayat fails to prove the execution of Exh.46 and Exh.47, he was entitled to the decree of specific performance of the contract in pursuance of oral agreement between Muhammad Hayat and Haji Abdul Ghafoor.
In this regard he referred to the statement of Haji Abdul Ghafoor in Suit No,30 of 1972. I am not persuaded to agree with the submission first, for the reason that this version is beyond the pleadings in this suit and the parties cannot be allowed to allege anything beyond the pleadings and secondly, there is substance in the contention of Mr. Syed Madad Ali Shah that the statement of Haji Abdul Ghafoor in Suit No,30 of 1972 merely showed an intention to sell the land to Muhammad Hayat after the suit was decreed. Such statement does not amount to sale agreement. Mr. Jhamat Jethanand contended that if there is omission to cross- examine of a witness or there is no . Denial of a fact alleged in the plaint by defendant in his written statement, the plaintiff's version shall be deemed to be admitted. In support of his contention he has placed reliance on the following judgments :-
(1) Shamsul Hassan v. Karachi Transport Corporation 2001 CLC 942 (Karachi) (S. A).
(2) Chief Engineer, Irrigation v. Mazhar Hussain PLD 2004 SC 682.
23. He has further submitted that specific performance of the contract can be sought on the basis of oral agreement also. In this behalf he has placed reliance on the judgment of Honourable Supreme Court in the case of Mrs. Mussarat Shasta Ali v. Mrs. Safia Khatoon 1994 SCM R 2189.
' There can be no cavil to the proposition of law canvassed by Mr. Jhamat Jethanand, but they are not attracted to the facts and circumstances of the present case.
24. After very careful consideration of the entire material on record and contentions raised by the learned Advocate for the parties, I am of the opinion that neither the plaintiff/respondent Muhammad Hayat sought any specific performance of oral agreement nor there was any such agreement as contended by Mr. Jhamat Jethanand. The applicant Haji Abdul Ghafoor specifically denied the execution of sale agreement and, therefore, it cannot be said that the version of plaintiff Muhammad Hayat has gone unchallenged. I am persuaded to agree with the submission of Mr. Syed Madad Ali Shah that the learned two Courts below have deliberately distorted the facts and have " made observations, which are against the material on record. They have wrongly placed the burden of proof on the defendant to establish that he had not executed the sale agreements. The suit was filed in the year 1980 and was decided by the trial Court in the year 1982 when Evidence Act, 1872 q was in force. Under section 101 of the Evidence Act, 1872 it is provided, that who ever desires any Court to give judgment as to any legal right, or liability dependent on the existence of fact which he asserts, must prove that those facts exist. It is further provided in section 102 of the Evidence Act that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, both the Courts below have placed the burden of proof on the defendant. In flagrant violation of the statutory provision. I am persuaded to agree with the contention of Mr. Jhamat Jehtanand that ordinarily the concurrent findings of fact are not to be disturbed in exercise of revisional jurisdiction, but I am of the opinion that if findings of the two Courts below are totally perverse and violative of the provisions of law as well as against the material available on record, the concurrent findings of fact as well as law can be set aside by this Court in exercise of revisional jurisdiction.
25. Consequent to the reasons, facts and circumstances, narrated above I am of the considered opinion that the plaintiff/ respondent Muhammad Hayat apparently failed to establish the execution of sale I agreements by Haji Abdul Ghafoor and the findings of learned two Courts below are totally perverse, therefore, the findings of the learned two Courts below are hereby set aside. I would like to clarify that these findings are restricted to the extent of interest of Abdul Sattar Nizamani and Abdul Jabbar Nizamani sons of late Haji Abdul Ghafoor who have pursued this revision application. The remaining defendants Nos.2 to 5 in the trial Court and applicants Abdul Shakoor Nizamani and Mst. Jannat have not contested the matters and consequently to the extent of their shares in the land the matter is to be governed in accordance with the terms of compromise arrived at between them and Muhammad Hayat. The plaintiff/respondent Muhammad Hayat and his legal heirs are not entitled to the specific performance of the contract to the extent of shares in suit-land held by Abdul Sattar Nizamani and Abdul Jabbar Nizamani, the applicants. The revision application is allowed accordingly with no orders as to costs.