' This second appeal is directed against the judgment dated 15th November, 1978 passed by learned District Judge, Tharparkar at Mirpurkhas, whereby appeal against the dismissal of the suit by the trial Court has been dismissed.
2. Shortly stated the facts are that one Sultan Mohammad filed the suit for specific performance of contract valued at Rs, 6,000 in the Court of Civil Judge, Mirpurkhas against Mst Kohi Noor Begum and Khar Para Masjid through Mutawali Haji Khair Mohammad, claiming therein that the plaintiff was an employee of husband of Mst. Kohi Noor and she agreed to sell her house No, C. S. 1449 situated in Khar Para, Mirpurkhas for a sum of Rs, 6,000 and received Rs, 2000 as earnest money.
Such writing alleged to have been executed by the parties was also produced and it was claimed that possession was handed over to the plaintiff. It was further stated in the plaint that a sum of money was due from Mst. Kohi Noor on account of arrears Of salary of plaintiff which had to be adjusted against the sale-price and the remaining amount of Rs, 980 was to be paid to her, to finalise the payment of sale-price of the house. It is further stated that Mst. Kohi Noor then changed her mind and served a notice on the plaintiff calling upon him to vacate the premises in question It is also alleged in the plaint that without informing the plaintiff she entrusted the suit premises to Khar Para Masjid in Wakf to defraud the plaintiff. It was prayed that Mst. Kohi Noor be ordered to execute the sale deed of the suit premises in favour of the plaintiff and get it registered.
3. Mst. Kohi Noor contested the suit and filed written statement in( which she has stated that she is a Pardanashin hence has no knowledge about plaintiff's employment with her husband. She has denied allegations' with regard to the sale of suit premises and has further denied further allegations contained in the plaint with the exception that she admitted having given notice to the plaintiff to vacate the premises in question. Written statement was filed by Haji Fakir Mohammad on behalf of Khar Para Masjid, defendant No, 2 in the suit in which allegations contained in the plaint have been denied with the exception that the suit premises have been given in Wakf to the Masjid by Mst. Kohi Noor and that notice was sent by defendant No, 2 to the plaintiff for recovery of rent in respect of the' premises in question.
4. Keeping in view the pleadings of the parties the following issues were framed by the trial Court :- "(1) Whether the defendant No. 1 had agreed to sell the premises in suit to the plaintiff on 6th April, 1972 for Rs, 6,000 after receiving earnest money of Rs, 2,CCO and banded over its possession to the plaintiffs ?
(2) Whether defendant No, I was paid Rs, 5,020 by the plaintiff and the balance was Rs, 980 ?
(3) Whether the subsequent alienation of the suit premises by the defendant No, I in Wakf to the defendant No, 2 is void, inoperative and not binding on the plaintiff ?
(4) Whether the plaint iff is entitled to specific performance of contract dated 6th April, 1972 ?
(5) Whether the suit is not maintainable in its present form ?
(6) Whether the plaintiff is not entitled to equitable relief ?
5. Plaintiff Mohammad Sultan examined himself and produced receipt Exh. 47, which he claims to be an agreement containing details of the transaction. He has also produced copy of notice from Mst. Kohi Noor sent by her Advocate as Exh. 48 and copy of notice sent by his Advocate by way of reply Exh.
49. He has produced copy of notice published in weekly "Sindhi Urdu Sartaj" dated 1st January, 1973 as Exh. 50, notice from Mutawali, Khar Para Masjid Exh. 51, and reply thereto Exh.
52. The plaintiff closed his side of evidence. Mst. Kohl Noor examined herself before the trial Court and denied the allegations made by the plaintiff. She closed her side. Defendant No, 2 Khar Para Masjid examined Khushi Mohammad, Chairman of the Committee for that Masjid. He deposed that the suit premises were given in wakf to the Masjid by Mst. Kohi Noor after 8/10 months of death of her husband. At that time one Abdul Karim was living with his father Sultan Mohammad in the said premises and rent was claimed from them. No other evidence was produced.
6. The trial Court after consideration of evidence produced by the parties gave findings on all issues against the plaintiff, holding, inter alia, that Mst. Kohi Noor had never agreed to sell the suit premises to the plaintiff as alleged, hence the plaintiff is not entitled to the relief of specific performance of contract. Against this dismissal of suit appeal was filed before the learned District Judge, who has upheld the decision of the trial Court and in the result has dismissed the appeal.
7. I have heard Mr. Suleman Kassim, learned counsel for the appellant and Mr Mohammad Sharif, learned counsel for the respondents at great length. It may be pointed out that plaintiff in suit Sultan died after appeal was dismissed by the first appellate Court and then his son Abdul Karim has filed this second appeal. The main contention of the learned counsel for the appellant is that although the findings of the two courts below are concurrent and against the appellant, still the evidence brought on the record has been misread. It would be pertinent at this stage to point out that concurrent findings of facts given by the two Courts below are not open to challenge in the second appeal simply for the reason that the High Court can be persuaded to take different view of evidence brought on the record. In this context reference can be made to the case of Mushtaq Ahmed v. Mrs. Mumtaz Zohra Rizvi (1). Perusal of the record shows that as rightly pointed out by the learned District Judge {{FOOT NOTE}}
(1) PLD 1978 Kar. 188 {{FOOT NOTE}} that the most important issues are two. Which are Issues Nos. 1 and 2 as mentioned above. Other issues are of secondary importance and are dependent upon the two main issues. These two issues also revolve round the pivotal document Exh. 47, which is supposed to be the crux of the alleged transaction. On this document hinges the whole case of appellant/plaintiff who claims that he has purchased the suit premises from Mst. Kohi Noor for consideration. It is contended on behalf of the appellant that this document having been admitted in evidence as Exh. 47 is not open to challenge for all practical purposes but he has failed to show any provision of law or legal authority in support of his contention that the Court is precluded from going into and determining the validity or authenticity of that document after it has been received or admitted in evidence, particularly larly when the document is so important that the whole dispute between the parties depends upon its validity or otherwise. Even if no objection was taken by the other side when the decument was exhibited, the Court is not prevented from adjudicating its true nature, whether it is valid or not, or whether it is fake or not.
8. Mr. Mohammad Sharif, learned counsel for the respondents has assailed the document Exh. 47 on many grounds. This document is a writing in Sindhi on a halfsheet plain paper, which bears no stamps. This halfsheet appears to be lower portion of the whole sheet and upper half appears to have been torn off. The caption of this writing is receipt. The contents purport to show that Mst. Kohi Noor has sold her house to Sultan for Rs, 6,000 out of which Rs, 2,000 she has received in advance.
The writing is allegedly signed by Kohi Noor Begum in Sindhi, although she has not written out this receipt. The scribe of this writing has not written his name on it. The writing is dated 6th April, 1972. It is signed by one witness by name Nibhoro Halepoto. Neither the scribe nor attesting witness Nibhoro has been produced in the trial court to prove this document. About the scribe, Sultan plaintiff in suit has deposed that he was a young Makrani by of about 20 years of age, who used to come to the house of Mst. Kohi Noor. He did not know his name neither he saw that by after the alleged writing. At another place in cross-examination Sultan stated before the trial Court that Makrani by was servant of Haji Ali Bux husband of Mst. Kohi Noor. About Nibhoro it is deposed by Sultan that he is known to him since long and both are on friendly terms for the last 20/25 years. To a Court question at the end of his deposition Sultan declared that Nibhoro was dead. Both the Courts below have not believed this assertion of Sultan to be true and rightly so. It appears from the reading of the deposition of Sultan that whenever he spoke of attesting witness Nibhoro, it was always in the present tense to the effect that he knows him and both are on friendly terms but in the end when he realised that he has not produced Nibhoro, who is an important witness to prove this document, Sulfan took a some result and to a Court question stated that Nibhoro is dead. Had he been truly dead then Sultan would have spoken of him in past tense and would have given more particulars about his death since they were friends.
9. So far. The signature of Mst. Kohi Noor on Exh. 47 is concerned both the Courts below have compared it with her admitted signatures on the written statement and vakalatnama and concluded that they do not tally. Both the Courts have given reasons and particularly the learned District Judge has discussed in detail the points of dissimilarities in the signatures compared. I have also compared the three signatures and find that the signature on Exh. 47 has been written with extra and obvious strain by some body else who has attempted to copy it from original signatures. While on the other hand signature on the written statement Exh. 18 and vakalatnama Exh. 55 are written comfortably and with natural case. It is contended on behalf of the appellant that signatures were not sent to the hand writing expert but it appears from the record that no such request was made on behalf of the appellant in the trial Court.
10. Furthermore the contents of Exh. 47 do not reflect the authenticity of the document and bona fides of the transactions. The suit premises are alleged to have been sold for Rs, 6,000 out of which Rs, 2,000, are alleged to have been paid in advance. There is no separate receipt for payment of Rs, 2.000. The contents of Exh. 47 also do not mention the amount of arrears of salary claimed to be due from Mst. Kohi Noor. This document is alleged to have been executed on 6th April, 1972 which is one month after the death of husband of Mst. Kohi Noor, when she was supposed to be segregated during the period of Idat and could not come in contact with men. It is admitted by Sultan in his deposition that Haji Ali Bux, husband of Mst. Kohi Noor died in March, 1972 and alleged document was executed in April, 1972. Sultan has made many contradictions with regard to the claim of his salary which he wanted to be adjusted against the sale-price of the house. He has claimed to be servant of Haji Ali Bux at monthly salary of Rs, 300 and further asserted that Rs, 2,900 were to be deducted on account of salary arrears. He has further explained that he remained in service for 11 months from November, 1971 to August, 1972. Haji Ali Bux died in March, 1972. After the death of her husband Mst. Kohi Noor stopped paying him the salary. This shows that salary was not paid to Sultan lrom March, 1972 to August, 1972 for 6 months. At the rate of Rs, 300 p. m. The total amount comes to Rs, 1,800 to which may be added price of wheat of Rs, 20 per maund per month as admitted by him in his deposition. The price of wheat comes to Rs,
120. The total amount due comes to Rs, 1920. It is not understandable how Sultan claimed Rs, 3,300 due to him on account of his salary. Firstly he does not say that for the whole period of 11 months while he was in service even in the lifetime of Haji Ali Bux, he was not paid. He has categorically stated before the trial Court that Mst. Kohi Noor stopped paying him after the death of her husband in March, 1972. Even then in spite of this assertion, he seems to be claiming salary for 11 months which comes to Rs, 3,300 but then he has claimed the cost of wheat at thejate of Rs, 20 per maund only for 6 months i. e. 6 maunds and that would add Rs, 120 to the total of Rs, 3,300 to make Rs, 4,500. This claim for wheat for 6 months only is also inconsistent with his claim for salary for 11 months, because he has nowhere stated that Haji Ali Bux gave him wheat but not salary nor has he said that Mst. Kohi Noor had stopped his salary after March, 1972 as well as his wheat. He has given very unsatisfactory account of his claim of salary and wheat and that only shows the falsity and dubious character of his claim.
11. It also appears from the evidence that Mst. Kohi Noor was-well off financially and had no necessity to sell the house at the time alleged and that also during the period of her Idat. In any case even the consideration of Rs, 6,000 for a house in the year, 1972 appears to be inadequate. It was contended on behalf of the appellant that Mst. Kohi Noor did not specifically deny her signature on Exh. 47 but has said that she could not say whether it was her signature. It is clear that she has not admitted that it was her signature, secondly she has explained that she had signed many documents and at the same time she has denied outright the existence of the alleged transaction arising from Exh,
47. She has specifically denied all the allegations with regard to this transaction. No capital can be made from small inconsistencies in her evidence to the effect that in her cross-examination she has admitted that Sultan was her servant and was dismissed by her in the month of June or that Sultan was in possession of the disputed premises as her tenant. The burden was on plaintiff in the suit to prove his claim that he had purchased the suit property from Mst. Kohi Noor as alleged and he has failed to discharge that burden. He cannot take assistance from the weakness real or apparent in the case of defendant. The fact is not to be lost sight of that Mst. Kohi Noor is Pardanashin lady and for that matter not literate as such she gets adequate protection under the law and any such transaction alleged to have been entered into with her is to be strictly proved by party claiming it.
12. In the circumstances and for the facts and reasons mentioned above I am of the considered view that there has been no misreading of evidence and finding of the two Courts below of the questions of facts being concurrent do not warrant interference by this Court. In the result the impugned judgment of the first appellate Court is upheld and the appeal is dismissed with cost.