JUDGMENT MUHAMMAD NASEEM AKHTAR KHAN, J.---This regular second appeal has been filed against the concurrent findings of the learned Civil Judge and that of the learned Additional District Judge, Khanpur.
2. Succinctly, the brief facts necessary for the disposal of this R.S.A are that Mushtaq Ahmad, hereinafter called the appellant/plaintiff, filed a suit for specific performance of contract regarding the suit property against Amjad Ali etc., hereinafter called the respondents/defendants.
3. It was averred in the suit that Mushtaq Ahmad appellant/plaintiff and Ghulam Qadir predecessor-in-interest of the respondents are nephew and uncle inter se and that the predecessor-in-interest of the respondents is the father-in-law of brother of the appellant; that during the pendency of suit Ghulam Qadir predecessor-in interest of the respondent died and then the respondents were impleaded as party in the suit being legal heirs; that Ghulam Qadir, the predecessor-in-interest of the respondents agreed to sell his land measuring 54 Kanals 8 Marlas for a consideration of Rs.6,00,000 (Rupees Six Lacs) and after receiving earnest money amounting to Rs.5,50,000, the said predecessor of the respondents executed an Iqrarnama' in favour of the appellant on 28-10-1997. As per appellant, it was settled that the remaining amount of Rs.50,000 was to be paid to the said predecessor, at the time of transfer of title of the suit property in favour of the appellant/plaintiff; that the appellant/plaintiff is in possession of the suit property since 28- 10-1997; that the appellant is paying government dues; that time and again the appellant/plaintiff asked the said predecessor of the respondents to receive outstanding amount and to transfer the title of the suit property in favour of the appellant but the predecessor of the respondents delayed the matter on one pretext or the other. Hence, the said suit.
4. The predecessor-in-interest of the respondents contested the suit, while submitting written statement, the assertion of the appellant was denied and it was maintained that in fact the appellant obtained the suit property on lease, but now the appellant is an illegal occupant as he has to pay Rs.3,00,000 as lease money. It was further maintained by the respondents' predecessor that the impugned 'Iqrarnama' was forged and antedated. From the divergent pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the defendant agreed to sell the suit property measuring 54 Kanals 08 Marlas in Rs.6,00,000 and on receiving an amount of Rs.5,50,000 in advance executed an agreement of sale dated 28-10-1997 and delivered the possession thereunder? OPP.
(2) Whether the plaintiff is entitled to retain his possession over the suit property under section 53- A of T.P. Act as an alternative relief? OPP,
(3) Whether the plaintiff is entitled to get a decree of permanent injunction as a consequential relief? OPP.
(4) Whether the plaintiff is entitled to get a decree of specific performance of agreement on payment of balance amount of Rs.50,000? OPP (5)Whether the plaintiff has come in the court with unclean hands? OPD.
(6)Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD.
(7)Whether the alleged agreement of sale is result of fraud, fabrication and liable to be cancelled as such? OPD
(8) Whether the plaintiff is liable to be prosecuted for fabricating bogus document and bringing false documents on the basis of fabricated and fraudulent documents? OPD
(9) Whether the plaintiff has brought the suit of specific performance of agreement in order to perpetuate his possession over the suit property in the garb of fabricated agreement? OPD
(10) Whether the plaintiff was in possession over the suit property for a period of five years and failed to pay the lease money of Rs.3,00,000 to the defendant and now his possession over the suit land is illegal and unauthorized? OPD.
(11) Whether the defendant is entitled to recover measne profit of the suit and for the illegal and unauthorized use of the suit property by the plaintiff during the pendency of suit? OPD
(12) Whether the defendant is entitled to be compensated under section 35-A, C.P.C. To the extent of Rs.25,000? OPD
(13) Relief.
The parties adduced oral as well as documentary evidence before the learned trial court in support of their respective versions. After hearing the, parties, the learned trial Court proceeded to dismiss the suit vide judgment and decree dated 20-2-2006. Feeling aggrieved by the said judgment and decree the appellant preferred an appeal, which also met the same fate, vide judgment and decree dated 23-5-2007. Hence, this R.S.A.
5. Learned counsel for the appellant inter alia contends that the agreement Exh.P.1 was fully proved through the statements of two independent witnesses, as such there was no need to produce the scribe, especially when receipt of consideration amount was also established on the record and that learned courts below have not considered the facts of the case inasmuch as due weight was not given to the documentary evidence adduced by the appellant. Hence, the impugned judgments and decrees passed by the learned Courts below are illegal, unjust and violative of the principles of law and procedure.
6. On the other hand, the learned counsel for the respondents has vehemently opposed this appeal.
7. Arguments heard. Record perused. ,
8. After considering the respective contentions of the parties it is found that the appellant and Ghulam Qadir deceased predecessor-in-interest of the respondents are closely related on the paternal side as well as younger brother of the appellant is son-in-law of Ghulam Qadir deceased respondent. It is noteworthy that the daughter of respondent Ghulam Qadir deceased, who is also one of the respondents in this case, is going a deserted life because the brother of the appellant has expelled her by snatching her two daughters and this suit has been instituted after the beginning of strained relations between the parties which started admittedly in 1999. The agreement to sell Exh.P.1 is dated 28-10-1997, according to which the bargain for the land measuring 54 Kanals was struck for a consideration of Rs.6,00,000 and Rs.5,50,000 were allegedly paid to Ghulam Qadir in the presence of witnesses. It is also noteworthy that the said Ghulam Qadir, who was an old man aged more than 70 years, was not accompanied by any of A his sons at the time of the alleged bargain or execution of Ex.P.1. It has also not come on record that such a heavy amount of Rs.5,50,000 was how paid to Ghulam Qadir deceased because there is no evidence on the file that from where/bank the appellant obtained such a huge amount and how the deceased was able to take such a huge amount along with him when his house is at a distance of about two Kilometers from the house of the appellant.. The Scribe and Stamp-Vendor have not been produced by the appellant and the argument of the learned counsel for the appellant that both Muhammad Jameel Stamp-Vendor and Petition-Writer Mushtaq were not produced by the respondents and as such the respondents are guilty of withholding the best evidence, cannot be given any weight. The learned counsel for the appellant has also agued that the Hand Writing Expert has not been produced by the respondents. The appellant is beneficiary of the, documents and he was duty bound to produce the Hand-Writing Expert or Petition-Writer.
There are material discrepancies-in the statements of the P.Ws. With regard to a bargain, execution of agreement to sell Exh.P.1 and payment of price. The appellant, has also' stated that he paid the remaining amount of Rs.50,000 in Rabi 1998 to Ghulam Qadir deceased.
9. The respondents' contention is that the appellant was given the possession of the disputed property as tenant/lease-holder and he has not paid a single penny up-till date and when he was asked to pay Rs.3,00,000 with regard to arrears of lease money he concocted this agreement and filed the suit for specific performance. The contention of the respondents with regards to lease/tenancy is believable because both the parties were related to each other and a major portion of the property in dispute i.e. 50 Kanals 8 Marlas is situated in Chak No.24-P where the appellant resides. Whereas the respondents are absentee owners and are residing in Chak No.387- GB Tehsil and District Toba Tek Singh.
10. There are concurrent findings of both the learned courts below i.e. The suit for Specific Performance filed by "the appellant on 13-5-2000 was dismissed on 20-2-2006 and his appeal was also dismissed on 23-5-2007. The evidence produced by the parties has sufficiently been discussed by both the learned courts below. There is no question of misreading as well as non- reading of evidence available on record. The original NIC No.253-86- 196572 is available on record, which is duplicate and was prepared on 17-6-1986. i.e. About 13 years before the execution of the alleged agreement Exh.P.1, whereas the c agreement P.1 is having NIC No.253-25- 196572, which was originally obtained by Ghulam Qadir on 29-1-1976. This also shows and sufficiently proves that agreement to sell Exh.P.1 is forged and fictitious one.
12. In view of the discussion made above, there is no merit in this appeal. Hence, the same is, hereby, dismissed with costs throughout.
13. Before parting with this judgment and keeping in view the findings on Issue No.8 the respondents are directed to initiate criminal proceedings against the appellant for preparing a false and fake document by forging the signatures of Ghulam Qadir deceased' and using the said document in Court.