JAWWAD S. KHAWAJA, J.---Muhammad Din appellant-defendant impugns the concurrent decrees of the learned trial Court dated 25-4-2005 and of the learned appellate Court dated 29-3-2006 whereby a suit filed by the respondents-plaintiffs seeking specific performance of agreement to sell dated 19-12-1995, has been decreed.
2. The respondent-plaintiffs are the sons of Kashmir Hussain. They were minors at the time of the execution of the aforesaid alleged agreement and, according to learned counsel for the appellant, they are still minors. The case set up by the respondents in their plaint was that they had entered into an agreement through their father Kashmir Hussain and the entire consideration of Rs.5,00,000 was paid to the appellant-defendant through their father -when the sale agreement was executed.
3. The defence set up by the appellant was that he had merely intended to give the land on lease to Kashmir Hussain for a period of four years and had thumb-marked an agreement believing the same to be a patta nama.
4. Based on the pleadings, the learned trial Court framed as many as ten issues. However, the issues dispositive of the case are Issues Nos.6, 7 and 8, which were framed in the following terms:-
(6) Whether the defendants agreed to sell the suit property to the plaintiffs through their father vide agreement dated 19-12-1995? OPP
(7) Whether the plaintiffs paid the sale price amounting to Rs.5 lac through their father to the defendant? OPP.
(8) Whether the defendant executed irrevocable deed of general attorney in favour of Kashmir Hussain, plaintiffs father? OPP.
5. According to learned counsel, the scribe of the agreement (Exh.P.1), namely, Faqir Hussain, appeared as P. W.1 and deposed that no money passed hands in his presence. Farzand Ali, one of the marginal witnesses to the agreement, appeared as P.W.3. He also testified that consideration was not paid to the appellant in his presence.
6. Rehmat Ali, who is the other marginal witness to the agreement (Exh.P.1) appeared firstly as P.W.4 and then also as D.W.2. He stated that his signatures had been obtained on the plea that the appellant had agreed to give the property on lease.
7. On the above basis it was argued that there was no evidence at all to prove payment of the sum of Rs.5,00,000 to the appellant. Additionally, learned counsel argued that there is no explanation on record as to why the respondents or their father Kashmir Hussain did not obtain a deed of conveyance when, according to them, the entire amount payable to the appellant had been paid.
8. Learned counsel argued that in the given circumstances, the defence set up by the appellant was more plausible while on the other hand, the respondents had failed to prove their case.
9. The reasons, however, which have prevailed with the learned Courts below for decreeing the suit are firstly that the agreement and the power of attorney were admittedly executed by the appellant. Learned counsel contended that this was an erroneous premise because mere fixing of ,the appellant's thumb-impressions on the agreement did not constitute execution of the same particularly in view of the defence set up by him. He, however, argued that the defence was strengthened by the fact that the appellant was an illiterate person. His thumb-marks appeared on Exh.P.1 and on the first page of the power of attorney (Exh. P . However, his thumb impressions, according to learned counsel, did not appear on page 2 of the power of attorney or on the reverse of page 1 where the proceedings before the Sub-Registrar have been recorded. It was argued that this itself provided strong proof of the defence raised by the appellant.
10. Secondly, the learned Courts below have relied on the power of attorney (Exh.P.2) which was held to be corroborative of the execution of the agreement (Exh.P.1). Learned counsel for the appellant argued that this premises was also not tenable in view of the available evidence discussed above and, more specifically, in view of the absence of the appellant's thumb- impressions on the proceedings before the Sub-Registrar.
11. Learned counsel appearing for the respondents-plaintiffs controverted the above submissions.
He referred to the trial Court record which is available in Court. From the same it is apparent that the appellant had thumb-marked the power of attorney (Exh.P.2) on the second page and also on the reverse of page-1 thereof where the proceedings of the Sub-Registrar had been recorded. It is thus clear that the submissions of learned counsel for the appellant noted in the preceding two paragraphs are not correct.
12. Learned counsel for the respondents also took me through the testimony of Rehmat Ali. He is the son-in-law of the appellant and firstly appeared as P.W.4 when he was declared hostile and was cross-examined by the respondents-plaintiffs. He also then appeared as D.W.2. I have gone through his testimony and find that he has been untruthful. He has contracted himself in material particulars. He was, therefore, rightly disbelieved by the learned Courts below.
13. Although the findings of learned Courts below were concurrent, I, nonetheless have gone through the testimony of the witnesses with the assistance of learned counsel for both sides. It is true that Faqir Hussain (P.W.1), who is the scribe of the agreement (Exh.P.1), stated that no money passed in his presence. He however, also deposed that the appellant had acknowledge receipt of the money. P.W.1 otherwise also appears to be a credible witness as his testimony rings true and has not been undermined in cross-examination. He and Farzand Ali (P.W.3) were rightly believed by the learned Courts below for the purpose of Muhammad Rasheed A.S.-L, Police Station holding that the appellant had, agreed to sell Saddar Gojra, District Toba Tek Sindh with the suit property to the respondents-police file. Plaintiffs.
14. In the foregoing circumstances, I find the impugned decrees to be unexceptionable.
Furthermore, learned counsel for the appellant was unable to show the existence of any of the grounds A mentioned in section 100, C.P.C. This appeal, as a consequence, is dismissed.