' MAULVI ANWARUL HAQ, J.---Having purchased house No,20/21, Samanabad, Lahore, from respondent No,1, vide sale-deed executed on 12-1-1974 and registered on 28-11-1974, the respondent No,2 filed an ejectment petition against the appellant on 12-2-1975. The appellant denied relationship of landlord and tenant between the parties.
2. On 23-6-1975 the appellant filed a suit against the respondents. In the plaint, it was stated that he had been serving in the Swat Textile Mills, 'Haripur Hazara, since the year, 1968 and lastly performed his duties as General Manager while respondent No,1 is a Director of the said Mill. He was owner of the said house. This house was given to the appellant for residence. It was then abruptly , stated that since the appellant intended to reside permanently at Lahore, the respondent No,1 offered to sell the said house to him. He was extremely busy and he appointed one Muhammad Siddiq, a common friend of the said parties as his special attorney to finalize the bargain and also to get the agreement of sale executed on his behalf. The consideration was settled at Rs,1,70;000 and this.Amount was paid to the respondent No,13 through the said Muhammad Siddiq on different dates and it was acknowledged by Muhammad Siddiq in writing. An agreement was executed by the respondent No,1 on 30-6-1974 in favor of the appellant promising to transfer the house to him within, four months: The receipt of consideration is also admitted. He called upon the respondent No,1 to perform the contract whereupon he was told that there is some conflict of opinion between the Directors of the Mills and further that he had asked the said Muhammad Siddiq to arrange the clearance certificate from the Income Tax Department and also to obtain some other requisite documents. In the same breath, it was stated that the respondent No,1 suggested that it would be convenient if the registered document is obtained in the name of some other person.. The appellant instructed his attorney to make arrangement for the completion of sale accordingly. In the meanwhile he met with an accident and remained admitted in C.M.H., Rawalpindi. In November, 1974, his services were terminated and he remained, involved in litigation with his employer. During this period, he had been calling upon the respondent No,1 to perform his part of the agreement but he was dilly dallying. It was then stated that the appellant came to know that respondent No,1 in collusion with Muhammad Siddiq attorney of the appellant has transferred the house to respondent No,2 by means of a registered sale-deed, dated 28-11-1974. This document was stated to be without consideration and void and also a Benami transaction and that he is the real owner. The possession was delivered to him in part performance of the agreement. The respondent No,2 was asked to re-convey the house to the appellant but he refused. With these averments, he sought a declaration that the sale-deed, dated 12-11-1974 registered on 28-11-1974 in favor of respondent No,2 is without consideration, void and ineffective being a Benami transaction and appellant is the real purchaser of the suit house. He also asked for a decree for specific performance of the said agreement if necessary.
3. The respondent No,1 in his written statement denied all the saidallegations. He affirmed having sold the house to respondent No,2 for consideration. The respondent No,2 in his written statement also denied the said allegations. The agreement was stated to be a forged and fabricated document.
4. The said ejectment petition referred to me above was dismissed by the learned Rent Controller, Lahore, on 2-10-1976 holding that there is no relationship of landlord and tenant between the appellant and respondent No,2. On 2-11-1976 the respondent No,2 filed a suit for possession on the basis of title against the appellant. The suit was defended, of course, with the pleas contained in the suit for specific, performance.
5. In the suit for specific performance, following issues were framed by the learned trial Court:-
(1) Whether the suit is not maintainable in the present form?. OPD.
(2) Whether the proper court-fee has not been paid on the ad valorem amount of Rs,1,70,000? If not, it's effect? OPD.
(3) Whether the suit is bad for non-joinder of necessary parties? OPD.
(4) Whether the suit is barred under section 42 of the Specific Relief Act OP.
(5) Whether the plaintiff is barred by his conduct to seek a. Declaration relief? OPD.
(6) Whether the plaintiff is a tenant under defendant No,2? If so, its effect? OPD.
(7) Whether the suit is vexatious and frivolous? If so, whether the defendants are entitled to special costs under section. 35-A, C.P.C.? OPD.
(8) Whether the plaintiff is the real purchaser of House No,20-21, Main Road, Samanabad, Lahore?
OPP.
If issue No,8 is replied in the affirmative, whether registered sale-deed, dated 28-11-1974 in favor of defendant No . 2 is without consideration, void and ineffective? OPP.
(10) Relief.
' In the suit for possession initially issues were framed on 16-5-1978 as to whether the suit is liable to be stayed under section 10, C.P.C. And whether it is correctly valued for purposes of court-fee.
These issueswere answered against the appellant on 4-5-1985 and thereafter the following issues were framed:--
(1) Whether the sale-deed, dated 12-11-1974 in favor of the plaintiff is without consideration and no title is passed to the plaintiff? OPD.
(1-A) Whether the defendant is not owner of the property in dispute? OPP.
(1-B) Whether Barkat Ullah Khan had any interest in the property in dispute at the time of execution and registration of sale-deed, dated 28-11-1974? OPP.
(1-C) Whether the plaintiff was ever in possession of the suit property as owner, if so, its effect'? OPP.
(1-D) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD.
(2) Whether the defendant is in possession, of the suit property as owner? OPD.
(3) Whether the plaintiff is entitled to the possession of the suit property? OPP.
(4) Relief.
' The suit filed by the appellant was dismissed by the learned trial' Court on 30-7-1984. A first appeal filed against the said judgment and decree was _dismissed on 18-7-1996. R.S.A.No,4/97 was filed by the appellant against the said judgments and decrees in this Court. The suit for possession Was decreed by the learned' trial Court on 20-2-1997. Against this judgment and decree, R.F.A.No,35/97 was filed. The R.S.A. As well as the R.F.A. Were heard by a learned Division Bench of this Court. These were allowed vide judgments, dated 20-12-2004. In the matter of the suit filed by the appellant, the case was remanded to the learned first Appellate Court for deciding -the appeal afresh while in the matter of the suit filed by the respondent No,2, the suit itself was remanded to the learned A.D.J. For decision of the appeal as well as the suit by means of a consolidated judgment.
6. Both the matters were heard accordingly by a learned A.D.J., Lahore, who has dismissed the first- appeal filed by the appellant and also decreed the suit filed by the respondent No,2 vide consolidated judgment and decree, dated 19-7-2006.
7. All the records are available. Both the learned -counsel are ready with their arguments. This R.S.A.
Is being decided as a Pacca Matter.
8. Mr. Abdul Waheed Khan, Advocate/learned counsel for theappellant contended that the learned A.D.J. Has failed to follow the directions contained in the said judgments passed by the learned Division Bench of this Court inasmuch as he refused to refer the matter to a hand writing expert.
According to him, in the peculiar circumstances of this case, it was aMolutely necessary to obtain the said opinion and this was the reason that the learned Division Bench had directed the learned first Appellate Court to decide the application filed for the purpose afresh. Since the fate of both the suits entirely depends upon the factum as to whether the respondent No,1 executed the agreement Exh.P.1. He has also tried to argue that the evidence in the matter of execution of the said agreement has been misread by the learned Courts below. Kh. Muhammad Farooq, Advocate/learned counsel for the respondent No,2, on the other hand, vehemently argued that this is a case whereupon a plain reading of the plaint itself, the claim is dubious and it did turn out to be so in the course of evidence. Further contends that a bare examination of the agreement Exh.P.1 will bear out the correctness of the opinion formulated by the learned A.D.J. In the impugned judgment that the signatures are a crude tracing. He, inter alias, relies upon the case of Anwar Ahmad v. Mst.
Nafis Bano through L.Rs, (2005 SCM R 152) to urge that in presence of overwhelming evidence proving forged and fabricated nature of document it would be futile to examine the Handwriting Expert.
9. I have gone through the records of both these cases, with the assistance of the learned counsel for the parties. Before I proceed further, I deem it appropriate to state that I have examined the judgments remedied by the learned Division Bench of this Court in R.S.A. No:4/97 as also R.F.A.
No,35/97 on 20-12-2004. The reasons for allowing R.S.A. No,4/97 are recorded in para.8 of the said judgment. The said reasoning is suffixed with the following:-- "Without adverting to the contentions of the learned counsel of the parties."
The learned Division Bench was of the opinion that the learned first Appellate Court has countersigned the judgment of the trial Court without application of mind and without reappraisal of the evidence on record. Towards the end of the said ultimate para of the judgment, it was reiterated that their Lordships do not consider the pleas rose by either side so that the case of any party may not be prejudiced. The R.F.A.No,35/97 was allowed with reference to the said reasoning recorded in R.S.A. No,4/97 and it was specifically mentioned that this is being done without adverting to the contentions raised by learned counsel for the parties.
10. I have examined the impugned judgment of the learned A.D.J. And do find that he has considered and appraised the entire evidence on record before making his ultimate decision.
11. It will be noted that the only fact required to be determined in this case was as to whether or not the respondent No,1, namely, Barkat Ullah Khan executed the agreement, dated 30-6-1974 Exh.P.1. I may note here that the original agreement is present in the file of the suit filed by the respondent No,2 against the appellant for possession. However, the evidence was recorded in the suit filed by the appellant with reference to the said agreement. Exh.P.1. Purports to bear the signatures of Barkat Ullah Khan RespondentNo,l. It is attested by Malik Jafar Hussain and Rao Aman Ullah Khan. It is written by Ashiq Hussain, Scribe, who was produced as P.W.1 by the appellant. He began his examination-in-chief with an explanation that the Register has been destroyed because of rains Ad flood. The agreement Exh.P.1. Was written by him and it bears his signatures. The stamp was also sold by him and it bears his endorsement. It will be seen that it was not even asked from him as to who got the agreement scribed and as to whether any executant or witnesses signed the document. Be that as it may, P.W.l was cross-examined. He categorically stated that neither Barkat Ullah nor the said two witnesses signed in his presence on Exh.P.1. He further stated that Exh.P.1. Was written by him under instructions from Attique appellant. According to him, after he had written the document, the appellant took it away and told him that he will come again and will get the document signed after paying the amount and since the document was incomplete, he did not enter it in his register.
12. Aman Ullah appeared as P.W.2. He stated that he knows the appellant as well as Barkat Ullah. He was brought by Barkat Ullah from Rawalpindi. Exh.P.1 was written in hi& presence and it bears his signatures as Exh.P.1.14. It was written by Ashiq Hussain in his shop and at that time Siddiq, Barkat Ullah, Ashiq Hussain and P.W.2 were present and that Barkat Ullah signed in his presence. Jafar had also signed. The, document was complete at the spot and was written on the instructions of Barkat Ullah. Barkat Ullah stated in the presence of Siddiq that he had received the money and thereafter the document was written. In his cross-examination, he stated that Barkat Ullah had not received any money; in his presence either from Siddiq or from Attique. He had put the date 30-6-1974 under his signatures and the document was written on the same date. He admitted that the ink of signatures of Barkat Ullah is different from the entire body of the said document. According to him, the agreement was with Siddiq (probably the witness means the stamp paper). He took the document to Ashiq for scribing it. He insists that Barkat Ullah told Siddiq that he had taken money.
As Ito how the money was paid nothing was said. He denied that after the agreement had been written, the appellant took it away saying that after payment of the amount, it will be completed and the signature of witnesses will be obtained. 'He admitted that he and the appellant had been doing service together and he was dismissed from service. He admitted that he was Accountant in the Mills awhile the appellant was the Manager. He volunteered that when the agreement was written he was working under respondent No,1 at Rawalpindi and that respondent No,1 is one of the owners of Swat Textile Mills, Haripur and he was an employee of the said Mills.
13. Muhammad Attique appellant appeared as P.W.3. After stating that he wanted to purchase the house as the owners wish to sell it, he contacted Siddiq who told him that the house where he, is residing (reference is to the suit house) can be purchased. Siddiq had gone to Haripur in response to a letter written by the elder brother of respondent No,1 for vacation of the house. After his return, Siddiq decided that he will arrange an agreement for sale of the house for Rs,1, 70,000. Thereafter; Siddiq received the consideration amount in three instalments. He gave a power of attorney in writing to Siddiq on 23-6-1974 and he assured him that he will get the matter settled. He delivered him Exh.P.1 in July 1974 and took back the receipts which he had issued for the amount of consideration.
14. It will be noted that the witness had not stated a word as to whether the said Siddiq is and as to why he has not been produced. The cross-examiner took a chance and confronted him. He expressed ignorance as to whether Siddiq is residing in Lahore. He further stated that after 1974 he has met Siddiq more than once.
15. This is the entire evidence pertaining to the said factum. So far as the appellant is concerned, he has opted to keep himself aloof from the entire matter. He has not stated a word that the document was executed by Barkat Ullah or that Barkat Ullah 'received any money under the said document or in connection with the sale of the house from him or from Siddiq.
16. Upon a reading of the plaint itself and the statements of the appellant and the other witnesses, the observations of the learned A.D.J. That Siddiq is a pivotal character as per pleadings and evidence of the appellant in the witness box but nobody knows where he is and no explanation is forthcoming on record as to why Siddiq was not produced by' the appellant. Needless to state that the alleged written power of attorney is also not present on record.
17. So far as P.Ws.-1 and 2 are concerned, they completely falsify each other as would be evident from a' reading of their statements reproduced by me above. Barkat Ullah appeared as D.W.1 denied having executed the said agreement Exh.P.1. He denied his signatures thereon and he denied having received any money from the appellant Or Siddiq.
18. So far as the said application under Order XLI, Rule 27, C.P.C. ICfor comparison of signatures through Handwriting Expert is concerned, some has very correctly been rejected by learned A.D.J.
And his order is C fully supported by the said judgment in the case of Anwar Ahmad being relied upon by the learned counsel for the respondents. Notwithstanding the rejection of the said application, he has himself examined the, document and has observed at page 15 of his judgment that tracing of signatures of respondent No,1 over Exh.P.1 is visible if the document is examined from its back side. I have also examined the said signatures with the assistance of the learned counsel for the parties and I am constrained to endorse the said observations. The forgery is apparent on the face of the document on both its pages.
19. So far as the matter of Benami is concerned, what to speak of even an iota of evidence, there is even a plea or allegation as to the necessary ingredients of such a transaction as laid down by the Superior Judiciary of the country including the Hon'ble Supreme Court in several judgments. The learned counsel has not even tried to argue that the sale-deed in favor of respondent No,2 is a Benami transaction.
20. As to possession, it is in the plaint itself that the appellant was allowed to reside in the house by his erstwhile employer i,e, the respondent No,
1. The house having been lawfully transferred by the respondent No,1 to, the respondent No,2, the latter has a valid title to get the possession of the house.
21. The R.S.A. Accordingly is dismissed with costs. The counsel fee is fixed at Rs,25,000.
22. The records of the learned Courts below be remitted back immediately.