' MAZHAR ALAM KHAN MIANKHEL, J.---The appellant herein, plaintiff in a suit for specific performance of agreement to sell dated 20-10-2006, has impugned the judgment and decree dated 8-12-2009 of Civil Judge-VII, Mardan whereby his suit was dismissed.
2. The plaintiff/appellant filed a suit for specific performance of an agreement to sell dated 20-10- 2006 wherein he alleged to have purchased an area of 77 Kanals, 1 Marla comprising of seventeen Khasra numbers, fully described in the head note of the plaint against a sale consideration of Rs,57,78,750 from the predecessor of the respondents and in alternate, has also claimed the recovery of said amount along with profit. The claim of the appellant was totally denied by the defendant/ respondents who have categorically stated that no such agreement to sell was ever executed by their predecessor and the alleged agreement to sell is wrong, fictitious, unlawful based on fraud and is without consideration. The appellant in support of his claim produced the petition writer, the scribe of the alleged agreement to sell, P.W.2 Jehanzeb Junior Clerk/Record- Keeper, the stamp, vendor as P.W.3. Besides, he himself appeared as P.W.4 and produced the marginal witnesses of the alleged agreement to sell as P.W.5 and P.W.6. Whereas on behalf of respondents, their attorney appeared as D.W.1. The Patwari Halqa was examined as C. W.1 by the Court who produced the copies of record-ofrights of the property in question. After hearing the parties, the learned trial Court while dilating upon the two important issues i.e. Issue Nos.6 and 7 dismissed the suit of the appellant.
3. The learned counsel for the appellant contended that the findings of the trial Court are not only the result of misreading and non-reading of the material evidence on the record but are also against the law. The appellant along with marginal witnesses of the agreement to sell, fully proved the contract of sale between the parties; the payment of sale consideration was also proved on the record by the appellant. He further submitted that to strengthen further his case, the appellant also examined the scribe of the document and the stamp vendor and thereby discharged the burden of proof lying upon him under the law. The trial Court has exceeded its jurisdiction by not properly appreciating the evidence available on the record and has committed an irregularity and illegality by dismissing suit of the appellant.
4. As on the other hand, the learned counsel for the respondents submitted that the alleged agreement to sell was a fake, fictitious and fraudulent document and the appellant also failed to prove the same through cogent and reliable evidence. The possession of the property lies with the respondents. There are many material contradictions in the evidence of the appellant. The appellant also failed to prove the payment of sale consideration and requested for dismissal of the instant appeal.
5. The learned counsel for the parties were heard and record of the case was perused.
6. The record of the case would reveal that this case was very poorly conducted on behalf of respondents. In support of his claim, the appellant though has produced the stamp vendor and also the scribe of the agreement to sell reflecting the fact that the stamp paper for agreement to sell was purchased and then an agreement to sell was executed between the appellant and the predecessor of the respondents. Besides himself, he also produced the marginal witnesses of the said document which under the law is the requirement to prove execution of such a document. The overall view of the evidence led by the appellant though appears to be sufficient to prove execution of a document and the evidence of the appellant at a glance would also reflect the factum of payment of sale consideration but there are certain important aspects of the case which cannot be ignored besides some material contradictions in the evidence regarding payment of sale consideration.
7. The said agreement to sell was allegedly executed on 20-10-2006. The same would again reveal the fact that the entire huge amount of sale consideration of Rs,57,78,750 was shown to have been paid to the vendor and nothing was left outstanding but there was no separate receipt regarding payment of entire sale consideration of this much huge amount. Similarly there is nothing on the record to show that as to why the appellant failed to get it registered in his favour or after payment of entire sale consideration of huge amount of Rs,57,78,750, he failed to get a proper registered sale-deed or to get it incorporated in the revenue record through mutation in his name during the lifetime of the vendor. (Though no specific date of his death is on the record but what appears from the record is that the vendor remained alive about a year after the execution of the alleged agreement to sell Exh. P. W. 1/1).
' Yet another important factor which also cannot be overlooked that in spite of payment of entire sale consideration, the possession of the suit property was never delivered to the appellant though reference to this regard has been made in the said agreement to sell but the possession of the property as per revenue record is with the respondents. The factum of delivery of possession to the appellant has not been proved by him.
' The above referred are the facts which create certain doubts regarding execution of Exh.P.W.1/1 by a person admittedly an old man suffering from cancer, though not properly alleged and proved by the respondents as we have earlier stated that this case was not properly conducted on behalf of respondents but the record of the case reveals so and this Court in the circumstances can take a judicial notice of the same just to safeguard the rights of such a person against fraudulent transaction. Besides above all, there was no well wisher of the vendor present at the time of execution of Exh.P.W.1/1 when his entire property was being transferred and payment of such a huge amount in the manner as alleged by the appellant alone is sufficient to make it doubtful.
' The law on the subject has become settled and in case of transactions with old age and illiterate persons and pardanashin' ladies, the burden of proof would always be on the beneficiary of the transaction. The beneficiary would not only be required to prove the genuineness of the transaction but also that the transaction was effected by such person with his free will and consent having independent advice; that there was no undue influence and coercion on such person. The entire evidence of the appellant if considered in this perspective then it would reveal that the same is not worthy of reliance. There are many material contradictions with regard to payment of sale consideration. Proof of payment of sale consideration according to law is an important factor in such like cases. The petition writer P.W.1 once says in his examination in chief that sale consideration was paid privately between the parties which was accepted by the vendor before him and in the same breath, he states in his cross examination that sale consideration was counted by the witnesses in his presence and then was paid to the vendor. Reliance in this regard can be placed on Mst. Marrayum Bibi v. Khan Muhammad (deceased) through legal heirs and others 2004 YLR 288 Muhammad Nazir v. Khurshid Begum (2005 SCM R 941).
8. The evidence of the appellant would reflect that apparently he has proved the execution of the alleged agreement to sell but execution of the same was denied by the respondents. The proof of execution is with regard to writing, signatures of the parties as well as of the author but it has nothing to do with the proof of contents of document. In such like cases where execution of a document is denied by the other party then heavy burden lies on the beneficiary of the document not only to prove the execution of the document but also its contents. Besides, he is also required to prove that such document was executed by the person with his free will, without any undue influence and coercion.
9. The very perusal of the agreement to sell, Exh.P.W.1/1, would reveal that the said vendor of the property i.e. Mian Farooq Ahmad (now dead) has been shown to have signed the document twice without any reason. The notary public attesting the document also confirms that the said vendor has signed and thumb impressed this deed in his presence. The back of Exh.P.W.1/1 which was separately exhibited in the statement of stamp vendor .P.W.3 would again reveal that the same was signed twice and thumb impressed by said Mian Farooq Ahmad and again his signatures and thumb-impression were verified by the oath commissioner. These factors too would be sufficient to cast serious doubts regarding extraordinary measure taken by the appellant, as in routine, nothing of the sort is done in such a manner. The entry of register of petition writer Exh.P.W.1/2 would again reflect such like precautionary measure that he completely incorporated the agreement to sell in the register. Besides the same, he made entry with regard to the date, time and the serial number of the purchase of the stamp paper by also writing the name of stamp vendor.
10. All the above facts would reflect that some extraordinary measure and care was taken to present this document like a genuine one executed by the vendor with his free will and independent advice without any coercion and undue influence.
11. So what has been discussed above, we are of the firm opinion that the plaintiff/appellant has failed to prove the genuineness of the agreement to sell and payment of sale consideration through cogent and reliable evidence in absence of which the claim of plaintiff/appellant cannot be entertained. Hence, in this view of the matter, we see no force in instant appeal which is dismissed as such with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.