' CH. SHAHID SAEED, J.---This civil revision has been directed against judgment and decree dated 16-11-2002 passed by learned Additional District Judge, Hafizabad who accepted the appeal of the respondent-plaintiff and set aside the judgment and decree dated 6-3-2002 passed by learned trial court whereby the suit of the respondent-plaintiff was dismissed. Through this judgment, Civil Revision No,2618 of 2002 shall also be disposed of as this civil revision also arises out of the same judgments and questions of law and facts are common in both the civil revisions.
2. Brief facts scanned from the record are that the respondent-plaintiff Muhammad Asghar filed a suit for specific performance of agreement to sell dated 30-6-1997 (Exh.P1) regarding land measuring 12 Kanal 10 marla, fully described in the plaint, averring therein that Munshi deceased sold the said property against consideration of Rs,90,000 out of which Rs,75,000 were paid while the possession was to be handed over to the plaintiff on payment of residual amount on 30-11-1997, however, meanwhile said Munshi expired on 11-9-1997.
3. The suit was vigorously opposed by the defendants-petitioners on the ground that the agreement to sell dated 30-6-1997 was result of fraud and collusiveness of P. Ws. The petitioners- defendants also filed a suit for declaration with regard to their possession and ownership. The learned trial court consolidated both the suits, framed issues out of divergent pleadings and after recording oral as well as documentary evidence dismissed the suit of the respondent vide judgment and decree dated 6-3-2002. Feeling dissatisfied, the respondent filed appeal which was accepted vide judgment and decree dated 16-11-2002. Hence this civil revision.
4. Learned counsel for the petitioners has emphasized more on the point that the agreement to sell dated 30-6-1997 (Exh.P1) in favour of the respondent is outcome of fraud committed by the respondent in connivance with the scribe and the marginal witnesses; that, the deceased Munshi being an old man of about 84 years was not in senses at that time to make such an agreement; that when the respondent Muhammad came to know that he had no right over the property of deceased Munshi, he prepared Exh.P1 fraudulently to defeat the right and entitlement of the petitioners; that the P.W.2 Muhammad Ilyas is related to the plaintiff; that marginal witnesses belong to different localities and also not to the village of the plaintiff and Munshi deceased; that the respondent has failed to prove Exh.P1 as under the law, not only the agreement but also its contents are required to be proved which obligation could not be met by the respondent and that the petitioners are lawful owners in possession of the disputed property, therefore, the civil revisions in hand be accepted, the impugned judgment and decree passed by learned Additional District Judge be set aside and the suit of the respondent be dismissed.
5. On the contrary, learned counsel for the respondent-plaintiff argues that Munshi deceased was in good condition when Exh.P1 was executed; that the petitioners alleged fraud with regard to Exh.P1 which could not be proved by them as per requirement of Order VI, Rule 4, C.P.C.; that the Exh.P1 was successfully proved by the respondent through cogent and convincing evidence; that the respondent has paid huge amount of Rs,75,000 for the suit land, therefore, the civil revisions in hand have no merit and merit dismissal.
6. The arguments advanced by learned counsel for the parties have been heard and record also perused with their able assistance.
7. The moot question in this ease is whether the agreement to sell dated 30-6-1997 (Exh.P1) was validly and lawfully executed or it is the result of fraud and collusiveness.
8. Admittedly, Munshi deceased owned land measuring 12 kanals-10 marls. He was born in 1913 and his age at the time of execution of disputed agreement comes to about 84 years. It is worth mentioning here that Munshi was issueless. According to pedigree table, Munshi was son of Bharoo who had three brothers namely Muslim, Haider and Major. There were two sons of Muslim, Mehrban and Nazar Muhammad while Haider's son is Shamas-ud-Din, as such, all these were real cousins of Munshi deceased and have been impleaded in the instant civil revisions as petitioners. As far as present respondent Muhammad Asghar is concerned, he was son of Wali Muhammad who was son of Major, so Muhanunad Asghar is son of cousin of Munshi deceased. According to the Shariat- e-Muhammadi that nearer will exclude the remoter, the property of the deceased Munshi was mutated in favour of his cousins Mehrban etc. Vide Mutation No,939, dated 15-10-1997. In the meanwhile, the alleged agreement to sell dated 30-6-1997 (Exh.Pl) was written in favour of the respondent-plaintiff. After about 2 months and 11 days of execution of Exh. P1, Munshi expired on 11- 9-1997.
9. The claim of the petitioners is that when Muhammad Asghar found that he was not co-sharer in the suit property, he prepared forged, fabricated and ante-dated agreement to sell dated 30-6- 1997 (Exh.P1) just to defeat the lawful right and entitlement of the petitioners.
10. The perusal of Exh.Pl shows that it was not purchased by the vendor Munshi deceased but by Muhammad Asghar plaintiff himself on 30-6-1997 and on the same day, the agreement to sell was reduced in writing by Inayat Ali, stamp vendor/deed writer, in presence of Muhammad Ilyas, Muhammad Yaseen, Munshi and Muhammad Asghar. The witnesses belong to different localities and not of the locality where the vendor and vendee resided. Admittedly, Muhammad Ilyas, P.W.2 is brother-in-law of the respondent.
11. Both the marginal witnesses and scribe of Exh.P1 were produced in the trial court to prove Exh.P1.
The plaintiff Muhammad Asghar appeared as P.W.1 who stated during cross-examination that he himself paid the earnest money to the vendor Munshi deceased after counting the notes. He further stated that he paid Rs,500 to the scribe as his fee.
12. During his cross-examination, P.W.2 Muhammad Ilayas admits that he is brother-in-law of the plaintiff Muhammad Asghar and lives in some other village. He also admits that he was not present at the time when the amount was fixed between the parties. He also states that son of the plaintiff namely Muhammad Afzal is Imam in a mosque of Hinjranwala. He informed the court that Rs,55,000, then stated that Rs,75,000 were paid to the vendor in his presence.
13. Muhammad Yaseen appeared as P.W.3. In cross-examination he at one place states that son of the plaintiff was an Imam of Mosque in their village while at another place he denies the same. He also deposed that their village is located about one mile away from that of the plaintiff. He further deposed that fee of Rs,200 was paid by the plaintiff to the stamp vendor/scribe for his job.
14. The scribe Inayat Ali appeared as P.W.4 who during cross-examination admitted that the entry of the stamp in question was made on the last page of his register for the year ended on 30-6- 1997. This was the second last entry No,2528 while the last entry bearing No,2529 was also present on the said page, however, original register could not be produced before the court. He was also not clear about how much amount he received as fee.
15. The crucial point with regard to genuineness, of Exh.P1 is when the respondent-plaintiff had paid Rs,75,000 out of total consideration amount of Rs,90,000, in other words almost whole of the amount; why he did not get the land mutated in his favour and why he did not demand the possession of the suit land whereas the respondent-plaintiff was well aware that the vendor Munshi was an old man aged it stands proved from the record that Munshi was too old and weak to walk. Even the alleged agreement to sell was not got registered by the respondent-plaintiff.
Furthermore, there is no receipt of payment of earnest money of Rs,75,000 except Exh.P1 which is already under challenge. It is consistent view of the superior courts that an. Agreement to sell does not create any title or ownership in favour of the executee. These facts create certain doubts regarding validity and genuineness of Exh.P1. There are also some discrepancies in the statements of P. Ws. As noted hereinabove.
16. The respondent-plaintiff claims that he has paid almost whole the consideration amount, he, however, admits that the possession of the suit properly was not given to him. Such fact is highly improbable that plaintiff having paid almost whole the consideration has not insisted for delivery of the possession. The plaintiff has also failed to give any reason for non-delivery of possession.
Such circumstances strongly reacted to plaintiffs claim that Munshi deceased had agreed to sell his land through the alleged agreement to sell after receipt of almost whole the consideration.
Except very special circumstances, the plaintiff having paid full consideration would have been put in possession of land under dispute.
17. Provision of section 22 of the Specific Relief Act, 1877 stipulates that jurisdiction to decree specific performance of contract was discretionary. The court is not expected to decree suit of specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over the vendor or legal heirs of the property.
18. In the above circumstances, I am of the considered view that the respondent-plaintiff after disappointment in getting any share in the property of deceased Munshi manoeuvred with the stamp vendor/scribe and marginal witnesses, one of them (P.W.2) is his brother-in-law and prepared the forged agreement to sell dated 30-6-1997 (Exh.P1 ), which is an unregistered document. He remained mum until the mutation No,939, dated 15-10-1997 was sanctioned in favour of Mehrban etc. (petitioners) and filed the instant suit on 24-1-1998. Had he paid almost whole of the total consideration amount, i.e, Rs,75,000 out of Rs,90,000, he had demanded for mutation in his favour along with the possession of the suit land, or at least, registration of the agreement to sell. Since the petitioners were nearer relatives, so property of deceased Munshi, issueless, had rightly been inherited to them. It is against the human nature and unconvincing that one pays almost whole of the amount of a property but does not demand its possession and mutation in his favour for some meagre amount. As such, the learned first appellate court has failed to appreciate the evidence available on record in accordance with the law, therefore, the impugned judgment and decree cannot sustain in the eye of law.
19. The foregoing reasons, both the civil revisions in hand are allowed, the judgment and decree dated 16-11-2002 passed by learned Additional District Judge, Hafizabad is set aside, the judgment and decree dated 6-3-2002 passed by the learned Civil Judge, Hafizabad is restored and the suit of the respondent-plaintiff is dismissed while the suit of the petitioners-plaintiffs is decreed.