' MUHAMMAD KHALID MEHMOOD KHAN, The petitioner filed a suit for possession through specific performance of an agreement dated 15-4-1985 against respondents claiming that respondents have agreed to sell land measuring 100 Kanals detailed in para. 1 of the plaint as per Jamabandi 1985-86 situated at MauzaMalleke Taroo, Tehsil and District Pakpattan, against consideration of Rs,62,500 and he paid Rs,60,000 as earnest money to respondents. It was agreed between the parties that balance amount of Rs,2500 will be payable on 1-1-1987 at the time of registration of sale-deed. Respondents have handed over the possession of suit-land to the petitioner on receipt of earnest money amounting to Rs,60,000. It is further asserted that petitioner requested respondents to receive Rs,2,500 and execute the sale-deed in his favour but they resiled from the agreement and failed to execute the sale-deed.
2. The respondents appeared and only defendants Nos.21 to 23 and 27 contested the suit and controverted the assertions of plaint. They specifically denied the execution of agreement. The respondents Nos.1 and 6 to 9, 16 and 25 filed their conceding written statement and remaining respondents were proceeded ex parte as they failed to appear. Today even the contesting respondents have also failed to appear and as such they are proceeded against ex parte.
3. The leaned trial Court out of pleadings of parties framed the following issues:- "Issues.
(1) Whether the suit has not been properly stamped? OPD
(2) Whether the plaintiff has no cause of action to file the suit? OPD
(3) Whether the suit is false and frivolous and if so, its effect? OPD
(4) Whether the defendants entered into an agreement to sell the property in favour of the plaintiff under agreement dated 15-4-1985? OPP
(5) If issue No,4 is proved in positive then whether plaintiff is entitled to the specific performance of the agreement, if so, on what terms and conditions? OPP
(6) Relief."
4. Learned trial Court recorded evidence of both the parties and finally dismissed the suit vide judgment and decree dated 13-9-1999. The petitioner assailed said judgment and decree through an appeal which too was dismissed on 5-3-2005, hence, the present revision.
5. Learned counsel for the petitioner submits that both the courts bellow have failed to appreciate the evidence available on record. Respondents Nos.1 and 6 to 9, 16 to 25 have admitted execution of agreement and as such learned trial Court was bound to pass decree to the extent of these respondents. He further submits that admission of respondents who conceded agreement to sell is sufficient to establish the claim of plaintiff against the other respondents who have failed to appear or contested the suit. He further submits that learned courts below have wrongly held that marginal witnesses have not been examined and as such agreement has not been proved. It is available on record that two marginal witnesses were died before recording evidence and as such it was incumbent upon the learned Courts below to pass the decree ignoring the fact that two marginal witnesses were not examined.
6. The evidence available on record has been scanned with the assistance of learned counsel for the petitioner. P.W.1 appeared himself as witness and he admitted that the possession of property was taken over by the respondents from him within one year of the agreement to sell but surprisingly he has failed to produce any document showing that he was handed over possession of the property in presence of agreement to sell. If the petitioner was in possession of property at least 2 Khasra Girdawaries should have been available with the petitioner showing that he remained in possession of the property for one year. The 'petitioner admits that suit property is an un-partitioned property. He further admits that he has paid earnest money to one Ghulam Rasool who conceded his claim before the Court. He admits that Ghulam Rasool was not the attorney of other respondents. He further admits that he has not paid the earnest money individually to the respondents according to their shares. He deposed in examination in chief that two marginal witnesses have died but their death certified or other material has not been produced proving that two marginal witnesses are not alive. He even has failed to recognize the respondents from whom he agreed to purchase the land. He specifically admitted that he is not aware about the names of all vendoRs, P.W.2 stamp vendor appeared but he has not brought his register and deposed that his register was taken into custody by the police in some other case in the year 1999 but the police has not issued any receipt thereof. The said witness admits that all the respondents are not known to him and all are illiterate. The stamp vendor further states that he has not sold stamp paper for the agreement Exh.P.1. He is not aware about the thumb-impression available on the agreement. It is not understandable that 36 respondents have been arrayed in the suit but agreement shows that alleged vendors are 19 in number. Learned counsel for the petitioner has relied on Abdul Wali Khan through Legal heirs and others v. Muhammad Saleh 1998 SCM R 760 and Allah Dad and 3 others v. Dhuman Khan and 3 others 2005 SCM R 564. The facts of judgment reported in 1998 SCM R 760 are distinguishable as in this case out of three marginal witnesses pne appeared and confirmed execution of agreement but in the present case no marginal witness was produced by the petitioner. Further payment of Rs,60,000 has not been proved and as per own admission of petitioner that he has paid the amount to Ghulam Rasool one of the vendor is sufficient to negate the assertion of petitioner that all the respondents have agreed to sell their shares in the suit land.
No special or general power of attorney in favour of Ghulam Rasool has been produced. Both the courts below have discussed the evidence in detail. In view of these circumstances learned counsel for the petitioner has failed to point out any misreading or non-reading in the judgments of courts bellow. In view of above the petition fails and is dismissed.