' IJA2 AHMED CHAUDHRY, C.J.---By virtue of this appeal the appellants have called in question the vires of judgment and decree dated 28-6-2005 passed by Mr. Shakir Hassan, learned Civil Judge 1st class Lahore whereby he decreed the suit filed by Dr. Muhammad Qasim Ghara etc. (respondents Nos.1 to 3 herein) for specific performance of agreement dated 18-9-1996 and cancellation of gift deed No,10636 dated 7-9-1995.
2. Unnecessary details apart, the facts of the case are that Sher Muhammad (deceased), predecessor-in-interest of appellants, being owner of agricultural land measuring 34 Kanals comprising Khasra Nos.188, 189, 1.89/1, 190, 191/1, 193/1, 185 and 186 situated within the Hadbast of Mauza Keer Khurd Tehsil Lahore Cantt District Lahore (hereinafter referred as suit property) entered into an agreement to sell dated 26-7-1990 (Exh.P/2) with Zahoor Ahmad (respondents No,3 herein) against a consideration of Rs,2,15,000 per Kanal. Accordingly, Rs,15,00,000 were paid by said Zahoor Ahmad to the vendor/ predecessor-in-interest of the appellants and it was settled that the vendee would further pay Rs,10,00,000 to the vendor on 15-9-1990 and the remaining amount was to be payable by the vendee (respondents Nos.3 herein) till 28-2-1991. Due to unavoidable circumstances the vendee could not pay Rs,10,00,000 by the stipulated date rather he paid only Rs,5,00,000 to the vendor on 8-10-1990 and for the rest of the five lacs date was extended till 10-11- 1990. Thereafter, another renewed agreement to sell dated 4-12-1990 (Exh.P/24) was executed between the parties according to which the vendee was given the authority to raise construction or to sell the plots and perform other allied acts. However, the earlier date for completion of agreement to sell was kept intact. The vendee could not perform his part of agreement till 28-2- 1991, thus, by virtue of an agreement regarding extension in time, dated 18-3-1991, the time for performance of agreement to sell was set as 30th April, 1991. In the said document the earlier three agreements dated 26-7-1990, 9-10-1990 and 4-12-1990 were also validated. Even till the extended time the vendee (respondents No,3 herein) could not pay the balance amount as per terms and conditions of agreement to sell dated 26-7-1990. As the vendee could not make payment of balance amount within the time set out in the agreement to sell dated 26-7-1990 and the subsequent renewed agreements, Sher Muhammad/vendor/predecessor-in-interest of the appellants sold away some of the land from the suit property to different persons including a gift deed qua land measuring 14-Marlas in the name of his son namely Ch. Safdar All vide registered gift deed No,10636 dated 7-9-1995. Thereafter, another agreement to sell (Exh.P1) in continuation of the previous agreement to sell dated 26-7-1990 was executed between the parties on 18-9-1996 with the only difference that the price of the land was enhanced from Rs,2,15,000 per Kanal to Rs,2,40,000 per Kanal for the remaining portion of the land. Even after execution of the subsequent agreement to sell, Sher Muhammad sold away land to some persons out of the suit property.
According to the respondents, as a whole Rs,63,47,000 were paid to Sher Muhammad and only Rs,16,29,000 were outstanding against them. The respondents/ plaintiffs approached the vendor for execution of formal sale-deed after receiving the balance amount but in vain. Resultantly, the respondents filed a suit for specific performance of agreement to sell dated 18-9-1996 and cancellation of gift deed No,10636 dated 7-9-1995 in favour of Ch. Safdar Ali son of Ch. Sher Muhammad with permanent injunction against Ch. Sher Muhammad and his son Ch. Safdar Ali, on 13-4-2001. However, during pendency of the said suit, Ch. Sher Muhammad breathed his last and as a result, the respondents filed amended plaint by arraying his legal heirs in the suit on 19-5- 2005. The appellants/ defendants contested the said suit by filing their written statement raising preliminary objections regarding limitation as well as forgery of the agreement to sell and that the agreement dated 26-7-1990 cannot be specifically enforced having become time barred. On merits defendants alleged that Sher Muhammad was owner of property who entered into agreement to sell the same on 26-7-1990 and received Rs,15,00,000 but on failure of the plaintiffs to perform their part of contract the agreement stood terminated between the parties as such Sher Muhammad executed sale-deed in favour of certain buyers. They also denied the receipt of Rs,60,00,000 under the agreement and alleged that the agreement to sell dated 26-7-1990 is forged and fabricated. Defendants however conceded that the land measuring 7-Kanals and 7- Marlas has been sold out by defendant No,1 as owner of the property. Out of the divergent pleadings of the parties, learned Civil Judge framed the following Issues:--
(i) Whether the defendant No,1 entered into an agreement to sell with the plaintiffs regarding the suit land mentioned in para No,1 of the plaint at the rate of Rs,215,000 per Kanal vide agreement to sell dated 26-7-1990 and received an amount of Rs,15,00,000 as earnest money? OPP.
(ii) Whether the plaintiffs subsequently paid an amount of Rs,60,00,000 and agreement to sell was renewed on 18-9-1996 and the plaintiffs also sold out the certain property out of the said land to the plaintiffs? OPP.
(iii) Whether the gift deed dated 7-9-1995 in favour of Ch. Safdar Ali is without consideration, void, ineffective and inoperative upon the rights of the plaintiffs? OPP.
(iv) Whether the plaintiffs remained ever ready to perform their part of the contract and due to refusal of the defendants they are entitled for a decree of specific performance? OPP.
(v) Whether the suit is well within time? OPP.
(vi) Whether the agreement to sell dated 26-7-1990 in favour of plaintiff No,3 by defendant No,1 has been frustrated and the suit is liable to be dismissed? OPD.
(vii) Whether the suit is false, frivolous, vexatious and baseless and the defendants are entitled for special costs under section 35-A C.P.C.? OPD.
(viii) Relief.
3. In support of their plea, plaintiffs/respondents produced Muhammad Aftab Ahmed P.W.1, Muhammad Munir P.W.4Muhammad Ashraf, P.W.3, Nawaz Ahmad, P.W.4, Muhammad Ishaq, P .W.5, Zahoor Ahmad, P .W.6, Muhammad Tariq, P.W'.7, Muhammad Arshad, P .W.8 and Inayat Ali, P.W.9 who also appeared as P .W.10. In addition to oral evidence the plaintiffs also tendered Exh.P1 to Exh.P24 as documentary evidence.
4. On the other hand, to establish their plea Akbar Ali one of the defendants appeared as DW-1 whereas Khalid Jan Khatak, Advocate was examined as DW-2. The defendants also tendered in evidence documents, Exh.Dl to Exh.D6.
5. After considering the oral as well as documentary evidence produced by the parties in support of their respective pleas, the learned Civil Judge proceeded to decree the suit of the plaintiffs/respondents herein vide judgment and decree dated 28-6-2005, hence this appeal.
6. Learned counsel for the appellants contends that the impugned judgment and decree is against law and facts; that the agreement dated 26-7-1990 was to be performed till 28-2-1991 but the respondents did not . Perform their part of the agreement, therefore, they could not claim anything under the said agreement; that as the respondents/vendees did not perform their part of the agreement, notices were issued to them to the effect that agreement stood terminated due to non-fulfilment of the terms and conditions thereof; that agreement to sell dated 18-9-1996 is product of fraud inasmuch as the names of the alleged witnesses of the said agreement were not mentioned whereas signatures of some persons are there on the said agreement to sell; that Aftab Ahmad Saleemi did not figure in the list of witnesses, however, he was unlawfully examined as P.W.1; that Sher Muhammad in his life time, while submitting written statement, denied execution of agreement to sell dated 18-9-1996; that as the respondents claimed the execution of agreement to sell dated 18-9-1996, therefore, they were bound to prove execution thereof; that scribe of agreement dated 18-9-1996 has not been produced to prove that P.W.1 and P.W.2 were actually the witnesses of the said agreement; that decision of arbitration (Exh.P5) only contains agreement dated 442-1990 and there is no mention of agreement to sell dated 18-9-1996, thus, the execution of agreement to sell dated 18-9-1996 stands falsified by the documents produced by the respondents/plaintiffs themselves; that the document (Exh.P3) also confirms that there was an agreement to sell between the parties on 4-12-1990'and there is no mention of agreement dated 18-9-1996; that the mala fide of the respondents is very much clear from the fact that neither they performed agreement to sell dated. 27-6-1990 nor abide by the decision of the arbitrators (Exh.P3); that according to section 62 of the Contract Act after rescission, alteration of a contract, or agreement, the earlier would die its natural death; that respondents failed to prove payment of Rs,60,00,000 as claimed by them in the plaint; that the suit filed by the respondents was beyond the prescribed limitation inasmuch as the alleged agreement to sell was executed on 18-1-1996 whereas the suit was filed on 13-4-2001; that respondents never showed their willingness to pay the balance amount as per agreement to sell dated 27-6-1990, therefore, they cannot claim anything by pressing into service a document which is product of fraud and forgery; that P.W.1 in his cross- examination categorically admitted that no payment was made in his presence and he also admitted that he had special relations with respondents/plaintiffs as they hail from the same profession of property dealing; that P.W.6 admitted that agreement dated 18-9-1996 was not mentioned in the Arbitration Deed which was executed after two years of the alleged agreement to sell dated 18-9-1996; that according to the learned trial court the respondents failed to prove the payment of consideration thus the whole superstructure of the said agreement to sell was collapsed as the payment of consideration is one of the foremost conditions of a valid sale and that even if the respondents proved the execution of agreement to sell dated 18-9-1996 even then the learned trial court could decline to decree the suit on the basis of equity but in the present case learned trial court while proceeding on totally wrong hypothesis decreed the suit of the plaintiffs specially when they failed to prove the execution of the alleged agreement to sell dated 18-9-1996.
In support of his contentions learned counsel has relied upon the cases reported as "Muhammad Rasheed Khan v. Mst. Mehr-un-Nisa" (2009 SCMR 740), "Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others" (1999 SCMR 1362), "Chilya Corrugaged Board Mills Ltd. v. M. Ismail and another"
(1992 CLC 2524) and "Kanwal Nain and 3 others v. Fateh Khan and others" (PLD 1983 SC 53).
7. On the other hand, learned counsel for the respondents, while defending the impugned judgment and decree, argues that bar contained under section 62 of the Contract Act does not come into operation when the execution of the agreement to sell was not specifically denied by the opponent party thus the suit was validly filed by the respondents/ plaintiffs; that to prove the execution of agreement to sell dated 18-9-1996, the respondents produced two marginal witnesses and during their statements no question was ever put to them to the effect that the said document was not thumb-marked by the marginal witnesses; that after examination of the marginal witnesses, the statement of scribe was immaterial; that according to the contents of sale-deed (Exh.P20), the said document was being executed in presence of the agreement in September, 1996 and Zahoor Ahmad/one of the respondents is marginal witness of the said transaction; that all the documents produced by the appellants/defendants suggest that there was an agreement in the month of September, 1996; that the respondents discharged their liability of proving the execution of agreement to sell while producing marginal witnesses thereof and after that the onus shifted on appellants to prove otherwise; that no objection was raised by the appellants at the time of the statement of P.W.1, therefore, they cannot discard the credibility of his testimony merely on the ground that his name was not mentioned in the list of witnesses; that the decision of the arbitration was not made rule of the court for the reason that the appellants/defendants did not accept it and that the learned trial court rightly decreed the suit of the respondents while considering all the pros and cons of the case.
8. We have given our anxious consideration to the arguments put forth by the learned counsel for the parties in support of their respective pleas. In addition thereto we have also gone through the record of the trial court to arrive at a just conclusion. The most vital questions to be decided by us are that whether the agreement to sell dated 26-7-1990 was in subsistence at the time of execution of the renewed agreement to sell dated 18-9-1996; whether the agreement to sell dated 18-9-1996 was legally executed document or not and whether the suit filed by the respondents/plaintiffs was within time. Taking up the first question we venture to go through the contents of the agreement to sell dated 26-7-1990. According to the said agreement Sher Muhammad, predecessor-in-interest of the appellants covenanted to sell the suit land against consideration of Rs,2,15,000 per Kanal. He received Rs,15,00,000 as earnest money in addition thereto he also received another amount of Rs,10,00,000 from Zahoor Ahmad (vendee) factum whereof has been recorded on the back of the said agreement to sell. Thereafter renewed agreement to sell dated 4-12-1990 ((Exh.P-24) was executed between the parties according to which the vendee was allowed to sell plots out of the suit property and to receive earnest money in addition to perform other ancillary acts. However, time for completion of the agreement was kept in tact as 28-2-1991. As the vendee could not pay the balance amount by the stipulated date, by virtue of agreement regarding extension in time, dated 18-3-1991, the time for performance of agreement to sell was extended till 30th April 1991. In the said document the earlier three agreements dated 26-7-1990, 9-10-1990 and 4-12-1990 were also validated. The vendees neither performed their part of agreement to sell by the last extended date i,e, 31st April 1991 nor sought any extension in time. Further, another important aspect in this regard is that according to the respondents/plaintiffs themselves, after agreement to sell in favour of Zahoor Ahmed (respondent No,3), Sher Muhammad sold away some of the land from the suit property to some persons but they did not challenge any transaction performed by Sher Muhammad deceased from the years 1991 to 1998 except the gift deed executed by Sher Muhammad in favour of his son Safdar Ali. We have further noted that in the Punchayat decision (Exh.P3) the date of the agreement has been mentioned as 4-12-1990 whereas in another identical document (Exh.P4) no mention of agreement to sell dated 26-7-1990 has been made. Similarly, in the document where-under Ch. Sher Muhammad and Ch. Safdar Ali on the one part and Zahoor Ahmad etc. On the other, agreed to refer the matter to the arbitrators, the date of the agreement to sell has been mentioned as 4-12- 1990. If the agreement to sell dated 26-7-1990 was intact, then why factum whereof was totally omitted in the subsequent documents, In this back drop we feel no hesitation to hold that- assessm ent to sell dated 26-7-1990 was not in field at the time of execution of renewed agreement to sell dated 18-9-1996.
9. Now coming to the document on the basis of which respondents/plaintiffs filed their suit, we have observed that in the said document reference has been made to agreement to sell dated 26- 7-1990 but what happened after the last renewed agreement dated 18-3-1991, till the time when the alleged renewed agreement was executed in the year 1996. A bare perusal of the said document makes it crystal clear that no name, parentage and address of the witnesses has been mentioned in the said document rather simple signatures without any thumb impression are available under the names of witnesses. This being the position, it is not clear that who witnessed the said agreement. Further, the contents of the documents show that from 26-7-1990 till 18-3-1991 both the parties took due care towards their rights and obligations and every movement towards the transaction was reduced into writing but in the renewed agreement dated 18-9-1996, the vendee did not get any receipt, as he had done in the earlier agreements, qua the payment of alleged amount of Rs,60,00,000. Another important feature of that document is that the time for completion of the agreement was set as 30th September, 1999. The said fact casts serious doubt regarding the veracity of the said agreement for the .Reason that the said agreement was allegedly executed on the basis of original agreement to sell dated 26-7-1990 then the grant of further three years for completion of the said agreement by the vendor, who had already put the vendee on notice regarding cancellation of agreement to sell dated 26-7-1990, is beyond comprehension of prudent man. To prove the execution of any document, besides marginal witnesses the scribe has the nucleus role. The mere production of two marginal witnesses cannot be a substitute for the scribe of the agreement in question. But in the instant case the respondents/plaintiffs did not produce the scribe of renewed agreement to sell dated 18-9-1996.
The lapse on the part of the respondents/plaintiffs is fatal to their case as according to the case reported as "City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen"
(PLD 2008 Lahore 51) marginal witnesses cannot be considered as substitute of the scribe. Further, names of Aftab Ahmad Saleemi who appeared as P.W.1 and P.W.2 are not available on the agreement to sell. Moreover, name of P.W.1 did not figure in the list of witnesses submitted by the respondents/plaintiffs along with their suit. In such a situation the statement of the scribe was of paramount consideration. During their cross-examination, P.W.1 and P.W.2 admitted in unequivocal terms that no payment was made by the vendee to the vendor in their presence. Thus, one of the most essential requirements for execution of an agreement to sell is missing in the instant case, therefore, the learned trial court erred in law while holding that the respondents/plaintiffs proved the execution of the alleged agreement to sell. In a case reported as "Muhammad Rasheed Khan v.
Mst. Mehr-un-Nisa" (2009 SCMR 740) the Hon'ble Supreme Court has held that relief of specific performance could not be granted, unless the execution of sale agreement, as per requirement of law, and payment of sale consideration in part or full was proved. Zahoor Ahmad/respondent No,3 while appearing as P.W.6 before the learned trial court categorically admitted that in the decisions of the arbitration, there was no mention of alleged renewed agreement to sell dated 18-9-1996. In view of said statement, one thing is clear that either there was no renewed agreement in the year 1996 or the respondents/plaintiffs deliberately suppressed the same for the reasons best known to them. The arbitration was conducted twice in the year 1998 and if there was any agreement in the year 1996, it was incumbent upon the respondents/plaintiffs to mention the factum thereof in the arbitration proceedings. Considering from another angle, in the renewed agreement dated 18-3- 1991 the time for completion of the agreement was set as 30th April, 1991. In the said agreement it was settled between the parties that in case of non-fulfilment of certain conditions on the part of the vendor, he would pay double of the earnest money to the vendee and likewise in the event of failure of the vendee to pay the balance amount by the stipulated time, the vendor would have the right to rescind/cancel the agreement. The falsity of the renewed agreement to sell is also apparent from the fact that on failure of vendee to pay the balance amount, the vendor issued him notice regarding cancellation of the agreement to sell. On the other hand, the respondents/plaintiffs miserably failed to prove that they ever put the vendor at notice to receive the balance amount and execute formal sale-deed rather they contented with their oral assertion that they approached the vendor for execution of sale-deed after receiving the balance amount.
The said assertion on the part of respondents/plaintiffs cannot be taken as a gospel truth till the time the same was proved through evidence of unimpeachable character. In the case of "Rabnawaz and 13 others v. Mustaqeem Khan and 14 others" (1999 SCMR 1362), the apex court of the country held that time for performance of agreement of sale arrived at between the parties was essence of contract but plaintiffs/vendees instead of serving notice upon defendants/vendors upto specified date and offering payment of agreed half of the sale consideration to defendants/plaintiffs, rushed to court to file suit for specific performance of contract. Even during pendency of the suit neither the court directed them to deposit the balance amount nor they opted to do so on their own. In such circumstances, the plaintiffs were not entitled for decree of specific performance of agreement to sell. In the case in hand the respondents/plaintiffs neither gave any notice to the vendor regarding payment of balance amount and for execution of formal sale-deed nor they deposited the balance amount with the court to show their bona fide, even after eleven years of the original agreement to sell dated 26-7-1990 and about five years after the renewed agreement to sell dated 18-9-1996. Thus, we have no doubt in our mind to hold that the respondents/plaintiffs failed to prove the execution of renewed agreement to sell dated 18-9-1996 as prescribed by Articles 17(2)(a) and 79 of the Qanun-e-Shahadat Order, 1984. In addition thereto, the plaintiffs also failed to prove payment of consideration as per the averments of the renewed agreement to sell dated 18-9-1996. In this scenario, the observation of the learned trial court that the respondents/plaintiffs proved the execution of the alleged agreement to sell is nothing but a nullity in the eye of law.
10. According to the respondents/plaintiffs, the renewed agreement to sell was executed on 18-9- 1996 and they filed suit in the year 2001 i,e, after five years of the execution of the alleged agreement to sell. Infact, under the garb of renewed agreement to sell dated 18-9-1996 the respondents/plaintiffs tried to get a decree for specific performance of agreement to sell dated 26-7-1990. In the whole plaint, the respondents/ plaintiffs did not utter evep a word that what happened in between 18-3-1991 when the agreement to sell dated 26-7-1990 was renewed till 18- 9-1996 when the renewed agreement to sell, on the basis of which the respondents/plaintiffs filed the suit, was executed. All the said exercise seems to be an attempt to wriggle from the question of limitation prescribed for such suits. According to section 113 of the Limitation Act the time for specific performance of a contract has been fixed as three years. The findings of the learned trial court under Issue No,5 are contrary to law inasmuch as after 18-3-1991 the vendor did not execute any renewed document and the.Arbitration proceedings were conducted on the basis of renewed agreement dated 4-12-1990, thus the findings of learned trial court that the parties continued agreement to sell dated 26-7-1990 after 18-3-1991 when the same was lastly renewed does not hold water. Even otherwise when the respondents/plaintiffs have failed to prove the execution of renewed agreement to sell dated 18-9-1996, the question of limitation has become redundant.
11. The findings of the learned trial court under Issue No,3 are based on its self-contradictory observation inasmuch as on the one hand the learned trial court held that the vendor after execution of agreement to sell dated 26-7-1990 performed various sale transactions out of the suit property without any objection on the part of the vendees in the said agreement to sell but in the same breath the learned trial court proceeded to hold that since the gift deed in favour of Ch. Safdar Ali was executed during the subsistence of agreement to sell dated 26-7-1990 the same was not tenable. Further, the learned trial court held that the gift deed was without consideration.
We are surprised to note that there is any condition precedent that consideration amount should always be mentioned in the gift deed. Moreover, the observation of the learned trial court under this issue amounts to approbate and reprobate in the same breath which cannot be encouraged at all rather the same approach should be deprecated. If the transactions undertook by Sher Muhammad vendor during the years 1991 to 1995 were in violation of the agreement to sell then why the respondents/plaintiffs confined to challenge only the gift deed in favour of Ch. Safdar Ali.
The logic weighed with the learned trial court while deciding this issue in favour of respondents/plaintiffs was that the vendor sold away certain land to other persons in subsistence of the agreement to sell with consent of vendees/respondents/ plaintiffs but their conduct qua non-examining any one of the vendees.Of the sale-deeds in this respect speaks volumes about mala fide on their part.
12. Now coming to the question of payment of Rs,25,00,000 by the respondents/plaintiffs, we are of the view that when Zahoor Ahmed, vendee, failed to pay the balance amount, Sher Muhammad vendor with bona fide intention allowed Zahoor Ahmed to receive earnest money of the land sold by him to other persons with the purpose to repay the earnest money received by Sher Muhammad pursuant to agreement dated 26-7-1990 to Zahoor Ahmad, which otherwise, would have been forfeited as per terms of the agreement dated 26-7-1990 as well as renewed agreement dated 18-3-1991. The said fact was admitted by Zahoor Ahmad while appearing as P.
W.6. During his examination-in-chief the said Zahoor Ahmed failed to establish that after receiving earnest money from the vendees he ever paid the same to Sher Muhammad. Thus, it can safely be presumed that Zahoor Ahmed received the amount which he paid under agreement to sell dated 26-7-1990.
13. As a necessary corollary to the discussion made in the foregoing paragraphs, we are of the view that respondents/plaintiffs failed to prove the execution of renewed agreement to sell dated 18-9- 1996. Moreover, the non- production of the scribe of the said document also casts serious doubts about its veracity. Consequently, the findings of the learned trial court under Issues Nos.2, 3, 4 and 5 are hereby spurned and while accepting this appeal, the impugned judgment and decree dated 28-6-2005 is set aside and the suit filed by respondents/plaintiffs stands B dismissed. The parties shall bear their respective costs.