1. ' MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/respondent No,1 filed a suit against respondent No,2 (her consanguine brother) on 28-2-1991 for specific performance of the agreement, dated 1-8-1990 regarding sale of land measuring 75 Kanals 13 Marlas for a consideration of Rs,1,25,000. An amended plaint was filed and appellants were impleaded as defendants as well. It was averred in the plaint that the plaintiff entered into an agreement, dated 1-8-1990 with the defendant/respondent No,2 for sale of the suit land for a consideration of Rs,1,25,000 which was received by him in the presence of the witnesses. The defendant was a drug addict. He was requested many a time to perform his part of the contract but he kept on dilly dallying the matter.
2. Subsequently the suit land was gifted in favour of defendant No,2 (appellant No,3) vide gift mutation 218/219 attested on 8-8-1990 who sold the same to defendants Nos.3 and 4 (appellants 1 and 2) vide mutation No,224/225. The defendant No,1 (respondent No,2) conceded the suit of the plaintiff. However defendants/ appellants filed separate written statements.
3. ' The suit was resisted denying all the allegations. It was alleged by defendant No,2 that the alleged agreement was forged and fictitious and was ante-dated. The suit land had been gifted to her by her husband Muhammad Waris and she has sold the land in question to defendant Nos.3 and 4 (appellants 1 and 2). The defendants 3 and 4 (appellants 1 and 2) filed separate written statements stating that they had purchased the land from Mst. Musarat Bibi after payment of Rs, 1,00,000.
4. ' Out of the pleadings of the parties following issues were framed:---
(1) Whether the plaintiff has no locus standi and cause of action to file the suit? OPD
(2) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the plaintiff has prepared a forged Iqrar Nama in ante-dated? OPD
(5) Whether the mutations No,218/219, dated, 8-8-1990 and subsequent mutation No,224/225 in favour of the defendants Nos.3 and 4 are result of fraud, null and void and inoperative against the rights of the plaintiff? OPP
(6) Whether the defendant No,1 executed Iqrar Nama in favour of the plaintiff with his free consent after receiving consideration? OPP
(7) Whether the plaintiff is entitled to a decree as prayed for? OPP
(8) Relief.
5. ' The learned trial Court after recording the evidence of the parties dismissed the suit of the plaintiff/ respondent No,1 vide his judgment, dated 2-7-1995. An appeal was preferred before the Additional District Judge, Chiniot who vide his judgment dated 22-5-1996 accepted the same, set aside the judgment of the trial Court dated 2-7-1995 and decreed the suit of the plaintiff/respondent No,1.
2. Learned counsel for the appellant submitted that the stamp paper on which the alleged agreement to sell Exh.P.2 is allegedly written was purchased from Faisalabad whereas the property is situate in Chiniot. He further submitted that the said agreement is ante-dated and it has not been signed by Mst. Kausar Noor. She did not appear in the Court nor the scribe of the agreement was produced as witness. He urged that the said agreement was not proved on the record.
6. According to the learned counsel on agreement Exh.P.2, Muhammad Waris double marked his thumb impression making its identification impossible.
7. ' Conversely the learned counsel for the respondent defended the impugned judgment stating that the agreement to sell Exh.P.2 has been proved by the marginal witnesses.
3. I have gone through the judgments of the Courts below and perused the record. Muhammad Waris appeared as P.W.2 and stated in examination-in-chief that defendant No,2/appellant got the mutations of "Hiba" Nos.218/219 attested on 8-8-1990 and the same were collusive, based upon fraud and mis-representation. He was cross-examined after about ten months and he admitted that he gifted the land to his wife (defendant/appellant) and he admitted the delivery of possession to her. He appears to have been won over and his testimony is liable to be discarded.
8. The agreement to sell, dated 1-8-1990, Exh.P.2, does not bear the signatures of Mst. Kausar Noor, the vendee, signifying her acceptance. Every "Iqrar Nama" does not create legal relationship between the parties. In the case of Muhammad Kazam v. Jannat Bibi PLD 1985 Lah. 637 it was observed:--- "The second document Exh.R.1 is in fact a unilateral writting by the respondent agreeing to re- transfer the house to the appellant. Though it is in his favour but he is not a signatory thereto and thus not party to the same."
9. ' The Honourable Supreme Court has laid down in the case of Mst. Barkat Bibi and others v.
10. Muhammad Rafique and others 1990 SCM R 28 that every "Iqrar Nama" is not an agreement for its enforcement. It was stated:--- ' "Moreover, we observe that it is a unilateral offer made by Muhammad Din to re-convey the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondents for no one on the side of the respondents has signed this "gramma" in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement."
11. ' In the instant case the unilateral writing Exh.P.2 by Muhammad Waris defendant in favour of Mst.
12. Kausar Noor shows that he received Rs, 1,25,000 and delivered the possession but no one from the side of Mst. Kausar Noor signed it creating legal relationship between the parties.
13. ' Muhammad Mansha the marginal witness, admitted in cross-examination that the sale transaction took place in Chiniot Katchery and the stamp papers were purchased from Chiniot Katchery by Muhammad Khan. He does not remember the name of the scribe. He is belied by the fact that the stamp papers were purchased from Faisalabad. He admitted that thumb impressions were put on the agreement in the chamber of Mirza Younas, Advocate. However, he stated of his own that thumb impressions were already present on the said document. He further admitted in the cross-examination conducted by the counsel for defendant No,2 that before executing the agreement to sell the negotiations took place one night earlier at the house of Muhammad Khan.
14. His statement is contradictory and cannot be relied upon. Similarly Ahmad Khan who appeared as P.W.4 admitted in cross-examination that at the time of sale transaction no consideration was paid. It was paid in the presence of the scribe but Mst. Kausar Noor was not present. He has not stated as to who paid the amount. The stamp papers were purchased on 23-7-1990 at Faisalabad and the "Iqrar Nama" was written on it on 1-8-1990. It appears that this unilateral writing was created in order to avoid the "Hiba" in favour of Mussarat Bibi (appellant), wife of Muhammad Waris. The witnesses and the alleged "Iqrar Nama" Exh.P.2 are silent as to who paid the sale price. In my view the alleged agreement has not been proved on the record. Even otherwise it did not mature into an agreement creating legal relationship between the parties.
4. For what has been stated above this appeal is allowed. The judgment and decree of the learned Additional District Judge, Chiniot, dated 22-5-1996 is set aside and that of the trial Court, dated 2- 7-1995 is restored.