' IJAZ UL AHSAN, J.---The petitioners assail judgment and decree dated 25-11-2008 passed by a learned Civil Judge at Chiniot, which was upheld in appeal vide judgment and decree dated 18-6- 2009 by an Additional District Judge at Chiniot.
2. The respondents instituted the suit for specific performance of a contract in respect of property measuring 90 Kanals 16 Marlas on the basis of an agreement dated 20-7-2004. It was alleged that the deceased predecessor-in-interest of the petitioner had agreed to sell the suit property for a consideration of Rs,20,00,000. An amount of Rs,4,00,000 was agreed to be paid in advance. The advance was paid through two cheques in the sums of Rs,1,25,000 and Rs,2,75,000 respectively, which amount was received by the predecessor-in-interest of the petitioners. It was further stated that subsequently the deceased had received certain amounts in cash against a receipt. In this way an aggregate amount of Rs,7,10,000 has been received by him.
3. It was alleged in the plaint that at the time agreed for execution of a registered sale-deed, the predecessor-in-interest of the petitioners refused to execute the sale-deed, which necessitated filing of the suit. The suit was contested. Out of the divergent pleadings of the parties, the learned trial Court framed issued. Both the parties adduced documentary as well as oral evidence. After hearing the arguments, the learned trial Court decreed the suit with the direction to the respondent to pay an amount of Rs,15,75,000 towards the balance sale consideration within one month, failing which the suit shall be deemed to have been dismissed. The learned counsel for the respondents submits that the aforesaid amount has since been deposited in the trial Court.
4. The learned counsel for the petitioners submits that the impugned judgments are no judgments in the eye of law. Points out that the learned subordinate courts have not thrashed out the evidence nor have they examined. And applied their judicial mind or properly appreciated the evidence produced. As such he submits that the judgments cannot sustain. Relies on 2009 SCM R 589, where it was held that dismissal of the suit by appellate court mainly depending upon decision of the trial Court and without independent application of mind was not valid and the case was therefore, remanded.
5. The learned counsel for the petitioners further submits that payment of Rs,4,25,000 was not proved nor was execution of the agreement established. Further the son of the deceased, who appeared as a witness was not confronted with any of the documents, therefore, the said documents could not be read against the petitioner. Pointing to the conclusion arrived by the learned courts to the effect that execution of the agreement was not denied and receipt of money was proved, the learned counsel refers to para 2 of the plaint in which the execution of the agreement and receipt of money has categorically been denied. The learned counsel has also drawn my attention to cheques Exh. P1 and Exh. P2 to argue that authenticity of the cheques and payment made against these cheques is open to question. He submits that the signatures of Allah Ditta on the, backside of the cheques and those of the predecessor-in-interest of the petitioners is unexplained. Further the signatures of the predecessor-in-interest namely Ahmad were not proved. As regards the second cheque namely Exh. P2, he submits that it has been drawn in account of Mst. Rajan wife of Rehmat, who is real mother of respondent No,2. He, therefore, submits that receipt of payment against the said cheques by the predecessor-in-interest of the petitioners is also questionable.
6. The learned counsel adds that Exh.4 which was written by Ghulam Rasool was not proved nor believed by the learned subordinate courts. The said Ghulam Rasool had also written Exh.P2 and Exh.P3. Further, despite the fact that said Ghulam Rasool was produced as witness, he did not utter a single word regarding payment received by the predecessor-in-interest of the petitioner on the basis of the alleged agreement to sell. In view of the aforesaid submissions, the learned counsel has emphasized that the respondents had failed to establish either execution of the agreement to sell or receipt of any sale consideration, therefore, the learned subordinate courts erred in law and misread the evidence in arriving at their conclusions and the judgment and decree cannot sustain.
7. The learned counsel for the respondents, on the other hand submits that the stance taken in the written statement was that predecessor-in-interest of the petitioners namely Ahmad was taken to the Court House for the purpose of submitting a surety bond. However, that stance has not been reiterated either in the evidence nor has any explanation been given in this regard as to why such surety bond was required and what were the circumstances in which he had agreed to stand as a surety. He further submits that no case has been identified in which Ahmad had to submit a surety bond. He, therefore, submits that the stance taken is false and has not been proved. He further submits that the stamp paper in question had been purchased by Ahrnad himself and when the agreement was written his real son Muhammad Younas had identified his father. Muhammad Younas appeared as D. W.1 and neither denied his thumb impression nor execution of the agreement. It is further pointed out that the predecessor-in-interest of the petitioners never challenged the agreement throughout his lifetime. As far as the cheques are concerned, the learned counsel submits that the first cheque was issued by Allah Ditta, respondent No,1, which was issued against his own account while the second cheque was issued against the account of the mother of respondent No,2 namely Mst. Rajan, which clearly explains how and under what circumstances said payments were made. He further submits that the Bank Officer had appeared as a witness, who not only verified the payment but also authenticity of the cheques which were produced in evidence. He was not cross-examined on any of the aforesaid points, which is clearly indicative of the fact that the payments were indeed given and duly received by Ahmad. The learned counsel for the respondent finally submits that two courts have given concurrent findings of fact against the respondent and no misreading or non-reading of evidence has been shown.
Further, the attesting witness as well as the scribe of the agreement were also produced before the trial Court and consequently, the agreement to sell stood established. He finally points out that balance sale consideration of Rs,15,75,000 has already been deposited in the Court pursuant' to order passed by the learned trial Court.
8. Arguments heard record perused.
9. The main issue necessary for decision of this petition is whether the predecessor-in-interest of the petitioner executed an agreement to sell dated 20-7-2004 in favour of the respondent and what amount was received by him pursuant to the agreement. The onus to prove both these issues was on the respondents. The respondents produced Farooq Ahmad PW1, who is a bank official, deposed that two cheques Exhs.P1 and P1/2 had been issued in the name of the predecessor-in- interest of the petitioner namely Ahmad. He said cheques were genuine and had been encashed by the in the sums of Rs,3,00,000 and Rs,1,25,000 respectively. A perusal of the said cheques indicates that these were made out in favour of Ahmad son of Muhammad who was the predecessor-in-interest of the petitioners. Therefore, there would be a presumption in favour of the respondents that the aforesaid amounts were paid to and received by the person who was named as the payee of the said cheques. It is also noticed that P.W.1 was an official of the bank and had no reason to falsely testify regarding payment of the said amount. Khushi Muhammad the stamp vendor appeared as P.W.3. He deposed that he had issued the stamp papers and had written the agreement to sell on the same. There is no evidence on record to rebut the statement of Khushi Muhammad the deed writer, who is also a. Witness to the thumb-impressions being placed by the predecessor-ininterest of the petitioners. The respondents also produced Exh.P4, which is a receipt indicating that additional sums of money had been received by the predecessor-in-interest of the petitioners insofar as an aggregate amount of Rs,7,00,000 had allegedly been received by Ahmad son of Muhammad. The said document was not believed by the learned subordinate courts, on the basis of their findings that there was no independent evidence available on record to substantiate payment of the said additional amount. Further the learned trial Court came to the conclusion that the thumb impression of the predecessor-in-interest of the petitioners appearing on Eh. P4 did not match with the thumb impressions available on Exh.P2. The subordinate courts therefore came to the conclusion that the agreement to sell had indeed been executed by Ahmad son of Muhammad, he had received the sum of Rs,4,25,000 by way of two cheques dated 27-7-2004 and 23-7-2004 in the sum of Rs,3,00,000 and a sum of Rs,1,25,000 aggregating Rs,4,25,000. In view of the fact that the learned subordinate courts found that execution of the agreement to sell Exh.P2 had been proved, which was substantiated by payment of a sum of Rs,4,25,000, the learned subordinate courts were pleased to decree the suit subject to the condition that the respondents would pay an additional sum of Rs,15,75,000 within one month failing which the suit filed by the respondents would stand dismissed. The learned subordinate courts also bound the petitioners to pay the loan of the bank with which a part of the suit property had been mortgaged.. I have gone through the evidence produced by the parties and have examined the documents produced in evidence. Exhs.P1 and P1/2 are copies of cheques which were allegedly issued by the respondents in favour of the predecessor-in-interest of the petitioners. The said cheques were proved through cogent evidence. An official of the bank appeared in Court and confirmed that the said cheques had indeed been presented and payments were made against the said cheques. There is no evidence in -rebuttal. The said cheques support Exh.P2 through which the predecessor-in-interest of the petitioners had agreed to sell the property for a total sale consideration of Rs,20,00,000.
Exh.P2 has also been proved by production of the deed writer namely Khushi Muhammad P. W.3.
Exh. P3 also bears the thumb-impression of the predecessor-ininterest of the petitioners and bears the thumb-impression as well as details of the cheques through which the earnest money was paid. As far as Exh. P4 is concerned I agree with the findings of the learned subordinate courts that the document in question could not be relied upon in view of the fact that there were contradictions in the testimony of the witnesses produced by the plaintiff. Further the learned subordinate courts found that the thumb impression of Ahmad son of Muhammad the predecessor-in-interest of the petitioners did not match his thumb impression on the agreement to sell. The main emphasis of the learned counsel for the petitioner is that in view of the fact that the learned subordinate courts disbelieved Exh.P4, Exh. P2 and Exh. P3 should also have been disbelieved. I am afraid I do not find myself in agreement with the contention of the learned counsel for the petitioner. The onus to prove issues Nos. 1 to 3 was on the respondents. They proved the agreement to sell as well as the payments made through cheques by producing cogent and believable evidence. The fact that the learned subordinate courts disbelieved Exh.P4 cannot be used to cancel out the effect of Exhs. P1, P1/1, P2 and P3. The fmdings of the learned subordinate courts relating to the above documents which are duly supported by the oral evidence produced by the parties, are sufficient to support a finding that an agreement to sell was indeed executed between the parties and an amount of Rs,4,25,000 was received by the predecessor-in-interest of the petitioners. In view of the agreement and receipt of Rs,4,25,000, the predecessor-in-interest of the petitioners had no legal justification to refuse execution of a sale-deed on receipt of the balance sale consideration.
10. The learned counsel for the petitioners has not been able to show any misreading or non- reading of evidence on the part of the learned subordinate courts. Further he has not been able to point out any illegality or material irregularity in the findings of the learned subordinate courts. The findings of the learned subordinate courts are duly supported by the oral as well as documentary evidence. The learned subordinate courts have applied their mind to the facts, circumstances and evidence brought before them. Their findings are based upon cogent reasoning and the conclusions drawn are in accordance with the law. I do not find any reason to interfere with the concurrent findings arrived at by the learned subordinate courts. Consequently, this petition is found to be without merit. It is accordingly dismissed.