ORDER MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner filed a suit for specific performance of agreement dated 18-10-1997 against respondents Muhammad Din etc. Qua the land measuring 1 kanal 18 marlas detailed in the head note of plaint. The respondents contested the suit and the learned trial Court out of the pleadings' of the parties framed the following issues:-- "ISSUES. (1) Whether the plaintiff is entitled to the decree of specific performance of contract of agreement dated 18-10-1997 and whether registered Sale-deed No.108 dated 18-2-1998 and subsequent mutation of Sale No . 131 dated 21-11-1998 are illegal, against fact, incorrect, collusive produce of mala fide, inoperative qua the rights of the plaintiff and void? OPP
(2) Whether the plaintiff has no cause of action and locus standi to file this suit ?OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the resort to civil court is not with clean hands? OPD
(5) Whether the suit is not maintainable in view of P.O. Nos.4 and 6? OPD
(6) Whether the plaintiff is estopped by his words and conduct from filing the instant suit? OPD
(7) Whether the defendants are entitled to recover special costs under section 35-A of C.P.C.?OPD
(8) Relief "
2. Both the parties adduced their evidence and the learned trial Court after hearing the parties dismissed the suit vide judgment and decree dated 26-1-2007 on the basis of findings on Issues Nos.5 and 6. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 19-6-2008, hence, the present petition.
3. Learned counsel for the petitioner submits that judgments of both the courts below suffer from mis-reading and non-reading of record. The respondents have failed to fulfil their part of agreement that was the reason that petitioner was forced to file the suit. He further submits that petitioner has successfully discharged the onus of issue No.1 and as such the suit was merits to be decreed.
4. Learned counsel for the respondents submits that it is the petitioner who failed to fulfil his part of agreement and both courts below have rightly dismissed the suit. The findings of facts of both the courts below are concurrent and cannot be challenged through this revision petition.
5. The claim of the petitioner in his suit is that respondent agreed to sell land measuring 1 kanal 18 marlas against consideration of Rs.40,000. The respondent received Rs.10,000 as earnest money and executed agreement to sell on 18-10-1997. It was agreed between the parties that balance amount will be paid at the time of registered sale-deed/attestation of mutation and last date for the registration of sale- deed was fixed as 31-1-1998. The petitioner requested the respondents to receive the balance amount and execute the sale deed well before the expiry of time, but the respondents refused to execute the sale-deed and subsequently it transpired that respondents have sold the land to respondent No.3 through a registered sale deed dated 18-12-1998. The petitioners have arrayed respondent No.3 as one of the respondent.
6. The main controversy between the parties is whether the petitioner failed to perform his part of his agreement or the respondents tried to wriggle out from the agreement. The respondents first objection is that they have not received Rs.10,000 as earnest money in terms of agreement. The petitioner paid Rs.7,000 and failed to pay remaining Rs.3,000. Further on 31-8-1998 they went to the Sub-Registrar Office and the petitioner failed to appear. The respondents have placed on record an application dated 31-1-1998 Exh.D2 showing that they appeared before Tehsildar/Assistant Collector 1st Class Kamalia on 31-1-1998 and requested to mark their presence and it was the last date for execution of sale-deed of the land subject matter of the suit. The contents of this application shows that respondents are admitting that they have received Rs.10,000 as earnest money on 8-10-1997 and balance amount is payable today. This means in written statement the respondents have not disclosed the true fact that when they stated that petitioner has not paid Rs.10,000 and only paid Rs.7,000 and balance Rs.3,000 was not paid. There is a separate sheet showing the orders passed by the Tehsildar on 31-1-1998 which shows that application was presented at 11'O Clock. Tehsildar called petitioner but no one appeared and adjourned the application to 10'O Clock.
He again called and the position remained the same and application was adjourned to 12'O Clock and at 2'O Clock again called but petitioner failed to appear. Surprisingly this application has 3 judicial orders but none of the order shows the date of order. The Reader of Tehsildar appeared as D.W.4. In cross-examination he deposed that this application was not marked by the Tehsildar to him but Tehsildar orally ordered him to call the parties. He admits that there is no number of this application nor any entry of said application is available in their record. He further deposed that he has not retained any record pertaining to the said application. The Tehsildar appeared as DW-3. He deposed in examination in chief that the order available on application was written by him and bears his signatures, but again said the writing is of the Reader. He in cross-examination admits that there is no number of this application. The said application was not entered in any register. No record was retained in office of Sub-Registrar. No date is mentioned under his signatures. He admits that except the signatures the orders are not written by me. He admits that no number of any identity card is mentioned on this application. One of the respondent appeared as DW-2. He narrates the incident of filing the application and deposed that application was returned to him by the Tehsildar at 4'O Clock. He and Yaqoob came to Sub-Registrar after informing the petitioner. The petitioner only paid Rs.7,000 and not Rs.10,000. In cross-examination he deposed that it is wrong that he has received Rs.10,000 and further deposed that the respondent refused to pay Rs.3,000 to him the balance amount of earnest money.
7. DW-1 one of the respondents appeared himself as his on witness and deposed that respondents Nos.1 and 2 have showed him the photo copy of agreement with the petitioner alongwith. The application filed with the Sub-Registrar and then I purchased the property.
8. If we ignore the evidence of petitioner, the analysis of evidence of respondents made it clear that it is the respondents who tried to wriggle out from the agreement to sell. They in their written statement made wrong statement that they have not received Rs.10,000 and have received only Rs.7,000. They also deposed in their statement on oath that Rs.3,000 was not paid to them by the petitioner in spite of their repeated demands and they received only Rs.7,000, whereas when they filed the application Exh.D2, they categorically admitted as under:- {{URDU TEXT}}
9. Perusal of this application shows that both the respondents are admitting categorically that they have received Rs.10,000 as earnest money. They are further admitting that they are enclosing the photo copy of the agreement to sell with the application, but they failed to produce the said photo copy of agreement which was submitted to the Tehsildar and who must have signed the same.
The only conclusion of the said facts is that from the date of filing the written statement the respondents are telling lie with the Court. P.W.1 the petitioner appeared as witness. He deposed that I on agreed date went to respondents. They said go to "Kacheril and we are following you.
Muhammad Yaqoob has handed over his original identity card to him. I along with many came to Tehsil Office. I remained in Tehsil Office but they did not turn up. In cross-examination he offered to produce the original identify card available with him of Muhammad Yaqoob one of seller. When in cross-examination this question was asked from DW-2 the other seller how original identity card came into possession of P.W.1, he deposed that it is wrong that Muhammad Yaqoob has handed over his identity card to P.W.1, but he is not aware how this identity card came into possession of P.W.1 the petitioner, but while cross-examining P.W.1 they suggested that P.W.1 has stolen the identity card of Muhammad Yaqoob. If this was the case why DW-2 has not deposed in his cross- examination that the P.W.1 petitioner has stolen the identity card of the seller Muhammad Yaqoob.
10. The above said analysis of evidence produced by the respondents is sufficient to negate their version. It is proved on record that the respondents have received Rs.10,000 as earnest money and they antedated the application Exh.D-2 with the collusion of Tehsildar and his Reader.
A Tehsildar is passing the judicial orders but surprisingly not entering this application in his record nor the Sub-Registrar is maintaining the record about the said application. The Sub-Registrar is not putting his signatures on the receipt of application but is orally directing the Reader to proceed on the application. This act of Tehsildar is a mockery with law. The Tehsildar has made wrong statement in Court. The learned courts below should have taken action against the Tehsildar who is a responsible Government official and is custodian of public record. The petitioner has fully proved his case and it has been proved beyond any shadow of doubt that the respondents have failed to perform their part of agreement. In view of above, I set aside the judgments of both the courts below and decree the suit of the petitioner subject to deposit of Rs.30,000 within one month after the receipt of certified copy of this order. The petition is allowed