' MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this single order I proposed to decide R.S.A.
No,34 of 2002 and C.R. No,1318 of 2002 as both are against the same judgment.
2. The appellants filed a suit against respondents for declaration and permanent injunction praying that an agreement to sell dated 4-9-1988 be declared illegal, void and inoperative against the rights of the appellants as the same is an outcome of fraud and misrepresentation.
3. As per averments of the plaint, the appellants asserts that agreement to sell dated 4-9-1988 has been obtained through fraud and misrepresentation. The appellants are the owners of land measuring 39 kahals, 5 marlas bearing Khata No,143, Khasra No,310 and Khatooni No,530 situated in Mohlanwal, Multan Road, Tehsil and District Lahore. The said land is under litigation and an application under section 12(2), C.P,C. Is pending adjudication before the learned Civil Court and the court has passed a restraining order against its alienation. Respondents Nos.1 and 2 are their relatives and are property dealer by profession. They are aware that the appellants are illiterate, simple and straightforward persons. The respondents in collusion with each other by practising fraud got the agreement to sell executed in their favour. They purchased a stamp paper of Rs.10, approached the appellants and informed that they have entered into a transaction with respondents Nos.3 to 5 and requested them to sign the said stamp paper as witnesses. The appellants being illiterate and simple person affixed their thumb- impressions and signed the front page of stamp paper only on the instructions of respondents Nos.1 and 2 at village Mohlanwal. They never appeared before any stamp vendor or petition writer. They never purchased stamp paper nor they affixed their thumb' impressions on the back side of stamp paper. Thumb-impressions on the back side of stamp paper are not of their. No consideration has been paid and the land measuring 7 kanals 16 marlas shown to be. Sold is outcome of fraud. The appellants could not sell the property as restraining order has already been passed against the suit property.
4. The respondents appeared and controverted the assertions of the appellants and also filed a suit against the appellants for specific performance of the agreement, subject matter of the earlier suit filed by the appellants.
5. The learned trial Court consolidated both the suits and out of divergent pleadings of the parties, framed the following consolidated issues:-- "ISSUES:
(1) Whether the Suit No,226/1 of 1988 has not been properly valued for the purpose of court-fee and jurisdiction? If so then what is correct valuation? OPD
(2) Whether the defendants Nos.1 and 2 are bona fide purchasers for value and consideration without any notice? OPD
(3) Whether the suit is mala fide and fictitious? OPD
(4) Whether the plaintiffs have not come to the court with clean hands? OPD
(5) Whether the agreement to sell dated 4-9-1988 is result of fraud, misrepresentation and impersonation? OPD
(6) If the Issue No,5 is answered in affirmative, then whether the plaintiffs of Suit No,226/1 of 1988 are entitled to a decree for declaration and injunction as prayed for? OPD
(7) Whether the plaintiffs of suit titled Abdul Rauf v. Muhammad Bashir Suit No,143/1 of 1989 are entitled a decree for specific performance and injunction the suit land? OPP
(8) Whether the plaintiffs of Suit No,143/1 of 1989 have no cause of action and the defendant has not entered into agreement to sell? OPD
(9) Whether the plaintiffs of Suit No,143/1 of 1989 not come to the court with clean hands? OPD
(10) Whether the Suit No,143/1 of 1989 is not maintainable in its present form? OPD
(11) Whether the Suit No,143/1 of 1989 is liable to be stayed under section 10, C.P.C.? OPP
(12) Whether the Suit No,143/1 of 1989 has been filed with mala fide intention? OPP
(13) Relief."
6. Both the parties adduced their respective evidence both oral as well as documentary. Learned trial Court decreed the suit of appellant and dismissed the suit of respondents for specific performance of agreement, vide judgment and decree dated 21-11-2000. The respondents assailed the said judgment and decree through an appeal which was allowed vide judgment dated 14-5- 2002 by the learned appellate court and the suit for specific performance filed by the respondents was decreed and the suit filed by the appellants for declaration was dismissed. The appellants filed the second appeal and also a Civil Revision.
7. Learned counsel for the appellants submits that judgment of learned appellate court is based on non-reading and misreading of record. The appellate court has not given any reason for reversing the findings of learned trial Court. The impugned judgment and decree is in violation of Order XLI Rule 31, C.P.C. Further submits that alleged agreement to sell has not been proved as both the marginal witnesses have not been produced. Further submit that learned appellate court has failed to appreciate that D.W.3, the alleged marginal witness of the agreement has conceded that he is partner in the property business with the alleged vendees. Further submits that Exh.D-1, the alleged agreement to sell, on the face of it is a forged document and the findings of learned appellate Court offend the established principle of law.
8. Learned counsel for the respondents submits that impugned judgment and decree is well- reasoned judgment and learned appellate court has discussed the evidence produced by the parties and the conclusion drawn by.The learned appellate court is logical and is proved from the evidence. Further submits that according to the appellant's own showing they affixed their thumb impressions on Exh.D-1 and as such question of fraud and forgery does not arise. He adds that it is established on record that one son of the appellant is educated person who read over the agreement to the appellants and then appellants signed and affixed their thumb impressions. He adds that it is a settled law that judgment of appellate court has the preference against the judgment of trial Court.
9. Heard and record perused.
10. The agreement to sell is Exh.D-1 but wrongly it has been numbered as Exh.P-1 as is mentioned in the impugned judgment. The dispute between the parties is about the execution of agreement to sell Exh.D-1. It is an admitted fact between the parties that they are relatives . Of each other. It is also an admitted fact that appellants are the owner of land measuring 39 kanals, 5 Marlas. It is also an established fact on record that on an application under section 12(2), C.P.C. The learned civil court has restrained the alienation of property owned by the appellants. The appellant's suit is for the cancellation of an agreement to sell, subject-matter of respondent's suit and in case it is established that agreement to sell is outcome of fraud, misrepresentation and forgery, the suit of appellants is bound to decree, so the evidence produced by the parties in the first instance has to be seen with reference to agreement to sell. The agreement to sell. Exh.D-1, itself shows that there are some additions in it. In line No,7 the word ({{urdu text}} has been written with green ink and name of respondents Nos.1 and 2 has been added subsequently with a different fountain pen. The deed writer who scribe this document has used different ink and different pen. The Endorsement on the backside of agreement, of the seller does not show its purpose of purchase. In these circumstances first question is from where the said stamp paper was purchased and for what purpose. Stamp vendor Fayyaz appeared as P.W.3. He deposed that stamp paper was sold by him.
Abdul Rauf and Ashraf, two persons came to him and they demanded the stamp paper of Rs.10. He got the signatures of Ashraf in his register. After 3/4 hours, they again came. The stamp paper was blank, however thumb-impressions and signature were available on it. They asked him they want to get it written. He wrote the agreement. His younger brother Imtiaz Hussain was trainee with him and on his instructions, his brother wrote the agreement. No body signed or affixed their thumb- impressions before him. He deposited the register of sale of stamp papers with D.C.O Office, Lahore.
He cannot produce the register as the record has been burnt. Abdul Rauf, who is respondent, came to him with rough draft and he dictated it to his brother. He has not told Bashir appellant that he has written the agreement on his behalf. Bashir was not known to him. The brother of stamp vendor who actually scribe the agreement is not produced. The statement of P.W.3 is sufficient to prove the assertions of appellant as they themselves have admitted that they have affixed their thumb- impressions and signed the stamp paper when it was blank. Stamp vendor has categorically admitted that one Ashraf came to him for purchasing the said stamp paper. The stamp paper was sold to Ashraf Abdul Rauf and Ashraf came to him after 3/4 hours and told him that they want to get it written. Meaning thereby the appellants were not aware about the contents of document Exh.D-1 when they affixed their thumb impressions. According to appellants they were told that their thumb impressions are required for witnessing some sale transaction. There are two marginal witnesses shown on the said agreement. One is Haji Fateh Muhammad and the other is Nemat Ali Shah.
11. Nemat All Shah appeared as P.W.4. He deposed that he signed the agreement as witness. It was a pre-written document and nobody has signed this document before him. He signed this document on the asking of Mian Rauf who is known to him. He signed this document at Manga Mandi when respondents Nos.1 and 2 came to him and it was a written document. The other attesting .Witness Fateh Muhammad appeared as D.W.3. He deposed that he knows the parties.
They agreed to sale and purchase of 1 Acre land, against consideration of Rs.200,000 Rs.100,000 was paid as earnest money and remaining amount was paid after six months. Exh.D-1 was written in this regard. Exh.D-1 was written before him and his signatures are available on it as witness which are Mark-D-14. He and Rauf went to receive amount at Mohlantwal where Bashir, Aslam, Akbar Muneer and Ghafoor were present. Muhammad Bashir showed the agreement to sell, Bashir's son Jamil read over the same. All the three brothers accepted the agreement and signed the agreement and received Rs.1,00,000 more. The statement of D.W.3 shows that it was Bashir who got prepared the agreement to sell and after receiving the additional amount of Rs.100,000 signed the agreement. This statement on the face of it is not correct. The stamp vendor deposed that he sold the stamp paper to Ashraf and Abdul Rauf and on Abdul Rauf's instructions he wrote the same. He further deposed that Bashir is not known to him nor purchased the stamp paper from him. The contents of agreement to sell show that Rs.100,000 was paid on the day of its execution and balance amount was payable on or before 4-9-1988. The respondents Nos.1 and 2 in their plaint themselves claim in para No,2 of the plaint that they have paid Rs.100,000 at the time of execution of agreement to sell and balance is payable, but this witness deposed that in his presence further Rs.100,000 was paid to appellants. This means, he is not the witness of agreement to sell but is of some other agreement which was executed between the parties at the time of final payment or he is telling lie. From the statement of one attesting witness P.W.4 and stamp vendor, it is proved that appellants have not affixed their thumb-impressions before them. The P.W.4 deposed that he signed the agreement when the appellants were not present nor any of the party signed the agreement before him. The other attesting witness D.W.3 deposed that he signed the agreement which was executed on final payment and Bashir produced the agreement before him which is not even the case of respondents. The purpose of purchasing the said stamp paper is not mentioned on it. The open interpolation and subsequent insertion of name of respondents Nos. 1 and 2 and word (eitelf/ ){{Urdu Text}} with green ink is available in Exh.D-1. P.W.1 Muhammad Siddique knows both the parties. He deposed that some land of appellants was acquired for a residential scheme and 40 to 45 kanals land is now the property of appellants. He went to the house of appellant at Mohlanwal with Arif, Ali Muhammad, Rafique and Noor Muhammad.
Respondents Nos.1 and 2 were there. They asked the appellants to put their witnesses on the stamp paper as they wanted to purchase some land. On the asking of respondent Nos.1 and 2 Akbar, Aslam and Muhammad Bashir put their signatures on the stamp paper as witnesses. When they affixed their signatures it was blank. There was no thumb-impression or writing on the back side of stamp paper. Respondents Nos.1 and 2 are property dealer by profession and also are agriculturist.
They are also living in Mohlanwal. He deposed that appellants have not received any earnest money from respondents before him.
12. Muhammad Arif appeared as P.W.2. He repeated the story narrated by P.W.1. Muhammad Aslam one of plaintiffs appeared as P.W.S. He deposed that he is illiterate person. He can affix thumb- impression and also can sign the document. Respondents Nos.1 and 2 are his relatives, their majority land was acquired for LDA Scheme and only 40 kanals land is left. Their land is in their possession 10 years ago they were sitting in the house of Bashir situated at Mohlanwal when at 10/11-00 0-Clock in the morning Abdul Rauf and Ghafoor came there. They informed that they have to execute the sale-deed and witnesses are required. It is in the knowledge of Rauf and Ghafoor that we are illiterate. Rauf and Ghafoor were holding pen, ink pad and blank stamp paper. Rauf and Ghafoor asked to affix their thumb-impressions as well as put their signatures as they have to execute the sale-deed and witnesses are required. They affixed the thumb-impressions and signed the front page of stamp paper. Their one brother Munir is educated person. When he came from his job, he asked them whether they have affixed their thumb impressions or signed any document. They told him that they have affixed their thumb-impressions. Munir then told them that they have been defrauded. When they obtained copy, they came to know that fraud has been committed with them. Neither they entered into agreement to sell nor received any consideration amount. They were unable to sell 'the property due to restraining order by the court. In cross- examination he admits that his thumb-impressions and signatures of Bashir along with Akbar are available on front side of stamp paper. He denied the signatures and thumb-impressions on the back side of stamp paper. He denied the presence of Fateh Muhammad and Nemat Ali Shah P.W.6 Jamil Ahmad son of Bashir Ahmad, one of the appellant, appeared and deposed that he is 6th class pass. Exh.D-1, he has seen today. He has not seen it 10 years ago. No money was paid before him. He has not read over Exh.D-1 to any one. He denied the suggestion that at the time of execution of Exh.D-1 he was present. He denied the suggestion that he read over the agreement Exh.D-1 to appellants.
13. As the respondents are beneficiaries of agreement to sell Exh.D-1, the appellants have denied it, the stamp vendor has negated the version of respondents and as such, the duty now cast on the respondents to prove the said transaction. None of the witnesses, appeared on behalf of respondents, have deposed that from where they arranged the payment of Rs.1,00,000. D. W-1, one of respondents, appeared and deposed that the appellants have agreed to sell the suit-land to respondents Nos.1 and 2 and Bashir received Rs.1,00,000 whereas the sellers are three persons.
D.W.2 deposed that appellants entered into sale agreement and Rs.1,00,000 were paid in his presence but in cross-examination he admits that the agreement to sell was not written in his presence. D.W.3 is marginal witness. He deposed that Rs.1,00,000 were paid in his presence as remaining amount (Additional amount). Exh.D-1 was read over by Jamil, son of Bashir but he admits that the agreement was not written in his presence further deposed it is Bashir who presented the agreement to sell. Jamil, referred by the said witnesses, appeared as P.W.6 and he denied that he read over the agreement. He deposed that he has seen the document today.
14. If we compare the evidence oral as well documentary, it is established that the stamp paper was purchased by one Muhammad Ashraf who has not been produced. The stamp paper was blank when the appellants affixed their thumb-impressions, it was not written because the deed- writer himself deposed that he scribed the document when thumb impressions and signatures were available on it. The most important fact is established from the perusal of stamp paper that it was not purchased for agreement to sell as on the back of it, it is no where mentioned for what purpose the stamp paper has been purchased. The stamp paper is shown to be purchased by Muhammad Bashir through Ashraf in favour of Abdul Rauf son of Haji Barkat etc. Ashraf has not been produced who was important witness for bringing on record the intention to purchase the stamp paper. D.W.3, stamp vendor and scribe deposed that Ashraf came along with Abdul Rauf who is respondent but the endorsement shows that Bashir sent Ashraf to purchase the stamp paper. Hence, it is clear that Bashir was not the party in purchasing the stamp paper and its writer and seller is not deposing the truth. Abdul Rauf is respondent and beneficiary of. Agreement. He should have produced Ashraf in witness box to prove the intention and purpose to purchase the stamp paper. Further, no one has clarified this fact that why word ( 01-4-11/1 ){{Urdu Text}} has been inserted with green ink and why respondents Nos. 1 and 2 have been added subsequently with black and blue ink. This aspect of the case shows that agreement was prepared subsequently and the name of purchasers were not written at the time when it was scribed. One of the marginal witnesses states that Abdul Rauf brought the agreement in written form at Manga Mandi and he signed this document on the asking of Abdul Rauf. He states that no one signed the agreement to sell before him. Hence, in these circumstances, the execution of agreement to sell and payment of earnest money has not been proved.
15. It is the primary duty of respondents to prove Exh.D-1 but they have miserably failed to prove the same. It is an established principle of law if the document is attested by two witnesses and one of the two witnesses supported the execution of document while other denied the execution in his presence, such witness fell far short of the required standard to discharge the onus and document in these circumstances is not proved. It is also established principle of law where the execution of document is in issue, it is essential and mandatory upon the person relying upon the document to examine marginal witnesses. Under Articles 17(2) and 79 of Qanun-Shahadat Order, 1984, the agreement was to be attested by two witnesses in case the document creates financial obligations. The present document is no doubt signed by two witnesses but the respondents have produced only one witness who states that this document was not written before him nor any one signed before him. The other witnessas D.W.3 who narrated altogether different story. He talked about " hg4.-iy {{UrduText}}
16. In view of the above, the respondents have failed to prove the execution of document and payment of consideration and as such the suit for specific performance is bound to be dismissed.
As it has been proved that the respondents have failed to prove the execution of agreement to sell, the suit of the appellant on merits decreed. In these circumstances, the judgment and decree dated 14-5-2002 passed by the learned appellate Court is set-aside and the judgment and decree passed by the learned trial court dated 21-11-2000 is restored. There is no order as to costs.