AMINUDDIN KHAN, J. --- Through this civil revision, the petitioners have challenged the judgment and decree dated 08.07.2005 passed by the Additional District Judge, Ahmadpur East, whereby the appeal was accepted and judgment and decree dated 29.09.1997 passed by the Civil Judge 1st Class, Ahmadpur East, decreeing the suit of petitioners-plaintiffs was set aside.
2. The brief facts of the case are that the petitioners-plaintiffs filed a suit for specific performance on 28.01.1989 on the basis of an agreement to sell dated 04.01.1989 about the suit property measuring 100-kanals fully described in the head note of the plaint for a consideration of Rs.
40000/-. As per plaintiff he has paid Rs. 32000/- and Rs. 8000/- is remaining amount. The defendant-respondent appeared and denied from any agreement of the suit property with the plaintiffs but he has fully mentioned the facts in his preliminary objections and in paragraph No. 1 of his written statement. From the factual controversy appearing out of the pleadings of the parties, Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence. Vide judgment and decree dated 29.09.1997 suit of the plaintiffs-petitioners was decreed. An appeal was preferred by the respondent-defendant, which was accepted vide judgment and decree dated 08.07.2005. Hence, this civil revision.
3. Learned counsel for the petitioners-plaintiffs argued that they have fully proved the case while producing confidence inspiring evidence; that they produced the witnesses who have proved the alleged agreement to sell and the decree granted by the Trial Court in their favour, was in accordance with law, whereas the first Appellate Court wrongly set aside the judgment and decree passed by the Trial Court. It has been further stated that first Appellate Court has mostly relied upon the facts prior to the institution of this suit with regard to the suit property which were not much relevant in decision of this suit. The Court was bound to appreciate the evidence with regard to the proving of alleged agreement to sell and to decide the appeal on the basis of evidence' available on the record.
4. On the other hand, learned counsel for the respondent-defendant vehemently opposed the arguments advanced by the learned counsel for the petitioners-plaintiffs and states that the Trial Court has not recorded the findings in accordance with law and the evidence available on the file; that the judgment and decree passed by the first Appellate Court are in accordance with law and that the facts prior to the institution of the suit, were very very important and were necessary to be considered while deciding this suit.
5. I have heard the learned counsel for the parties and have scanned the evidence oral as well as documentary led by both the parties.
6. I also believe that the facts are very important before going to the further merits of the case. The facts are that Muhammad Din defendant entered into an agreement to sell of the suit land through agreement dated 08.01.1973 with Mst. Shahzadi Barlas, the original owner of the suit property.
Muhammad Hussain son of Korey Khan, real paternal uncle of the plaintiffs, had came to know about the agreement of the suit land with the defendant who purchased the suit land from the original owner i.e. Mst. Shahzadi Barlas through registered sale-deed dated 17.12.1974. Therefore, the defendant filed a suit for specific performance on the basis of agreement in his favour. He also made Muhammad Hussain as party and challenged the sale-deed in his favour. That suit was decreed on 04.02.1979. The said Muhammad Hussain filed a suit for pre- emption on the sale of land in execution of the decree for specific performance dated 04.02.1979.
The brother of plaintiffs Khairat Hussain etc., namely, Sultan also filed a suit for pre-emption. Both the suits were dismissed. The appeals were filed which were also dismissed by the first Appellate Court. All these facts have been proved by the defendant-respondent through the documentary evidence.
7. The plaintiffs were bound to prove their case on the basis of their reliable and cogent evidence.
P.W-3 appeared who is the widow of original plaintiff as he died during the pendency of suit. Her statement is very strange, even she does not state that there was written agreement between her husband and the defendant. I have minutely gone through the record as well as the evidence available on the record and findings recorded by both the Courts below.
8. The objection of learned counsel for the petitioners-plaintiffs that the first Appellate Court was not competent to compare the handwriting and signatures of defendant on the alleged agreement to sell. I am afraid that this contention of learned counsel for the petitioner is not correct. In my view, the report of an expert is just an opinion, even in the presence of a report the Court can itself compare the signatures or disputed handwriting. The report of an expert is an opinion and has no binding effect on the Court. I am fortified by the judgment of august Supreme Court of Pakistan reported as "1985 SCM R 214 (Mst Ummatul Waheed and others v. Mst. Nasira Kausar and others) & PLD 1962 Supreme Court 102 (A.I Ahmad alias A.I Ahmad Mia v. The State)."
Moreover, the Court is not always bound to send the disputed signatures and handwriting for comparison before any expert. The Court itself can compare the signatures and handwriting and make an opinion on the basis of its own comparison. In this context "PLD 1975 Lahore 299 (Usman Ghani v. Haji Muhammad Amin Khan)" can be safely referred.
9. The crux of the above discussion is that learned counsel for the petitioners failed to show any defect, misreading or non--reading on the part of the first Appellate Court while recording the findings and allowing the appeal in favour of respondent-defendant and dismissing the suit. In this view of the matter, I see no force in this civil revision which is dismissed with costs-throughout.
Civil revision .