' IJAZ UL AHSAN, J.---This appeal arises out of judgment and decree dated 6-6-2002 passed by a learned Civil Judge, Gojra which was upheld in appeal by a learned Addl. District Judge at Gojra.
Through the impugned judgments and decrees, a suit for specific performance filed by respondents Nos.2 and 3 against the appellants was decreed in their favour whereas the suit for specific performance filed by the appellants against the respondents was dismissed.
2. Brief facts of the case are that the appellants filed a suit on 23-2-1997 against respondent No,1 alleging that land measuring 72 Kanals 17 Marlas comprised in Square No,44 Min, 53 Min, Khewat No,42, Khatooni Nos.187 and 189 situated in Chak No,181 GB, Tehsil Gojra District Toba Tek Singh was owned by respondent No,
1. It was alleged that the appellants and respondent No,1 had entered into an agreement to sell the aforesaid land on 6-2-1997. The total sale consideration was agreed as Rs,10,50,000/- out of which respondent No,1 received Rs,50,000/- as earnest money. It was allegedly agreed that the remaining consideration will be paid on or before 16-3-1997 when the sale deed would be executed. It was averred that respondent No,1 had issued a general power of attorney in favour of Abdul Ghaffar authorizing him to execute the sale deed in favour of the appellants.
3. It was averred in the plaint that respondent No,1 intended to transfer the land to a third party to get a better price. It was, therefore, prayed that a decree for specific performance of contract may be passed in favour of the appellants. The record indicates that the suit was initially filed against respondent No,
1. However, on 28-7-1997, respondents Nos.2 and 3 filed an application under Order I, Rule 10, C.P.C. On the ground that they had purchased the suit property from respondent No,1, therefore, being necessary and proper parties, they may be impleaded in the suit. The application was allowed vide order dated 23-4-1998, where after an amended plaint was filed by the appellants.
4. It appears that respondent No,1 filed his written statement in which he denied execution of any agreement with the appellants. On the contrary, he took the position that he had entered into an agreement to sell with respondents Nos.2 and 3 on 14-7-1996 and the agreement relied upon by the appellants in support of their suit stood cancelled because of non payment of the balance amount. Respondents Nos.2 and 3 also filed their written statement taking the same stance as respondent No,1. Out of the divergent pleadings of the parties, the learned trial court on 1-10-1998 framed as many as 8 issues.
' It appears that on 31-7-2000, respondent No.1 made a conceding statement before the trial court to the effect that if the appellants paid him the remaining sale consideration, he was willing to sell the suit property in their favour. Respondent No,1 received a sum of Rs,10,00,000/- before the trial court on 18-7-2000. However, owing to the fact that the suit of respondents Nos.2 and 3 was also pending in the same court, no order was passed by the learned civil court on the basis of the statement of respondent No, 1.
6. It appears that respondents Nos.2 and 3 had also filed a suit against respondent No,1 on 18-6- 1999. It was alleged in the plaint that respondent No,1 had agreed to sell the suit property in their favour through an agreement to sell dated 14-7-1996 against a sale consideration of Rs,8,00,000/-.
He had received Rs,1,00,000/- as earnest money. The sale deed was to be executed till 5-6-1997 on receipt of remaining sale consideration. It was alleged that possession had also been delivered to respondents Nos.2 and 3. It was also alleged that on receipt of the balance sale consideration, respondent No,1 had arranged for entry of mutation No,543 vide report No,293 in their favour before the concerned Patwari. Respondents Nos.2 and 3, therefore, sought a decree for specific performance against respondent No,1.
7. Respondent No,1 resisted the suit. He denied execution of any agreement to sell and admitted the agreement to sell in favour of the appellants. Respondent No,1 took the position that Abdul Ghaffar, his attorney, in connivance with respondents Nos.2 and 3 had got the mutation in question entered in their favour.
8. In the suit filed by respondents Nos.2 and 3, the learned trial court framed 8 issues. Subsequently, an additional issue was also framed.
9. In the aforesaid suit filed by respondents Nos.2 and 3, oral and documentary evidence was produced by the parties. Muhammad Sharif, .Patwari, lqbal Mahmood, Akbar Ali, Muhammad Amjad (respondent No,2), Syed Liaqat Ali Naqvi, Special Judicial Magistrate, Abdul Ghaffar and lqbal Mahmood appeared as P.W.I to P.W.7 respectively. Certain documents were also produced, which was placed on record as Exh.P1 to Exh.P6. On behalf of the defendants Muhammad Afzal, Sheikh Anjum Sohail and Muhammad Aslam (appellant No,1) appeared as D.W.1 to D.W.3.
10. On 30-5-2002, both suits were consolidated by the learned trial court and 15 consolidated issues were framed. Both the parties opted to rely on the evidence already recorded by the learned trial court regarding which reference has been made above. Neither party produced any further evidence. After hearing the parties the learned trial court proceeded to decree the suit filed by respondents Nos.2 and 3 and dismissed the suit filed by the appellant to the extent of specific performance of the agreement to sell. However, the suit of the appellants was decreed against respondent No,1, .Mushtaq Ahmad to the extent of recovery of Rs,10,50,000/- along with profit at the bank rate. The appellants were also found entitled to recover a sum of Rs,2,50,000/- as damages from respondent No,1 Mushtaq Ahmad. Aggrieved of the said order, the appellants filed an appeal.
The first appellate court upheld the judgment and decree of the learned trial court. Hence this second appeal.
11. The learned counsel for the appellants submits that the 'agreement to sell dated 14-7-1996, allegedly executed between respondent No,1 and respondents Nos.2 and 3 was a written agreement involving future obligations. He argues that it was required to be proved by producing two attesting witnesses in terms of Article 17 of Qanun-e-Shahadat Order 1984. According to him only one witness namely Akbar All appeared. The other witness namely Nazir Ahmad was not produced without assigning any reason. He, therefore, submits that the agreement in question has not properly been proved. The learned counsel further submits that lqbal Mahmood, the scribe was produced as a witness but the stamp vendor was not produced. He argues that in view of the stance taken in the written statement that the agreement in question had been ante dated, the respondents were required to prove the issuance of stamp paper. This having not been done and the agreement to sell having been produced 2-1/2 years after the appellant had filed their suit made the agreement doubtful. He also argues that the general power of attorney in favour of Abdul Ghaffar was executed on 15-2-1997 and on the same date, said Abdul Ghaffar made a statement which was duly recorded in the Roznamcha to the effect that an oral sale had been undertaken in favour of respondents Nos.2 and 3. He submits that in the said statement, there was no reference to the agreement to sell dated 14-7-1996, which points towards the fact that no such written agreement was in existence on 15-2-1997. The learned counsel finally argues that the mutation on the basis of the aforesaid report was never attested by the Revenue Officer, as such it had no legal value and did not confer any title in the property on respondents Nos.2 and 3.
12. The learned counsel for respondents Nos.2 and 3 on the other submits that the agreement to sell dated 14-7-1996 in favour of respondents was prior in time. The sale consideration was agreed as Rs,8,00,000/- out of which a sum of Rs,100,000/- was paid as earnest money. The date for completion of the sale was fixed at 5-6-1997 and the possession was to be delivered at the time of execution of agreement to sell.
13. The learned counsel points out that the agreement had partly been performed, the respondents were put in possession of the suit property on receipt of part of the sale price, therefore, they were entitled to protection provided in section 53-A of the Transfer of Property Act. The appellants, however, forged an agreement to sell dated 6-2-1997 in connivance with respondent No,1 . He points out that respondents Nos.2 and 3 filed a suit for injunction against the appellants and respondent No,1 and were granted a stay order on 25-5-1999 against forcible dispossession. The above suit was disposed of on 8-4-2000 on the statement of the appellant that they will not interfere in the possession of respondents Nos.2 and 3.
14. It is pointed out that despite having made a statement before the court, the appellants took forcible possession of the land in question on 18-7-2001 regarding which an F.I.R. Was .Lodged on 22-7-2001. Respondents Nos.2 and 3 also filed an application under Order XXXIX, Rules 2 and 3, C.P.C. Seeking punishment for the appellants and return of possession. The said application was decided on 8-11-2005. The appellants were punished with detention in civil prison for six months and also directed to return possession. Their appeal against the order of the learned Civil Judge was also dismissed by the learned District Judge, Gojra on 21-12-2005. According to the learned counsel W.P.No,275 of 2006 against the aforesaid orders is pending before this Court.
15. It is pointed out that after taking forcible possession, the appellants and respondent No,1 fabricated the agreement to sell dated 6-2-1997 and filed a suit based on it in order to defeat the right of the respondents.
16. Referring to the mutation dated 15-2-1997 at the behest of Abdul Ghaffar, general attorney of respondent No,1, in favour of respondents Nos.2 and 3, it is pointed out that the general power of attorney executed by respondent No,1 in his favour was intact when the sale transaction in favour of respondents Nos.2 and 3 was recorded on 15-2-1997, He submits that although there was an agreement with respondent No.1, Abdul Ghaffar who was duly authorized to transfer the property in favour of the respondents only mentioned the fact of oral transaction as there was no need or occasion to mention the agreement to sell. He, therefore, submits that failure to mention the agreement to sell in his statement before the Revenue Officials cannot be used as basis to doubt the genuineness of the sale/agreement to sell.
17. Referring to non-sanction of the mutation, the learned counsel has referred to the evidence of P.W.5, Syed Liaqat Ali Naqvi, Special Judicial Magistrate, who stated that mutation was not sanctioned on account of non-payment of government dues. He also categorically stated that the sale price was paid in a public meeting.
18. The learned counsel for the respondents has further argued that respondent No,1 never appeared as a witness before the learned trial court. Therefore, any adverse admission or statement made by him in his written statement cannot be used against the respondents. He, however, submits that respondents Nos.2 and 3 had proved the agreement to sell in their favour by producing one of the marginal witnesses in addition to lqbal Mehmood, the scribe as P.W.2. Further P.W.3, Akbar Ali who was the marginal witness categorically stated that other marginal witness namely Nazir Ahmad had died three years ago, which explains why the said marginal witness was not produced.
19. The learned counsel submits that both the subordinate courts have come to the conclusion that both the agreements were in existence but since the agreement in favour of respondents Nos.2 and 3 was prior in time, specific performance was decreed in their favour while the decree was passed in favour of the appellants for recovery of the amount that they had paid in addition to certain damages.
20. The learned counsel finally submits that by producing P.W.2 Iqbal Mehmood, who was a scribe of the agreement and P.W.3, Akbar Ali who was one of the marginal witness, P.W.5 the Special Judicial Magistrate and P.W.6 the special attorney and explaining the reason for non production of the other marginal witness, the respondents Nos.2 and 3 had proved the existence of the agreement to sell. He submits that the appellants alleged fraud stating that the agreement had been ante dated. In such circumstances, the onus to prove the fraud was on the appellants, who had failed to discharge such onus.
21. I have heard the learned counsel for the parties have examined the record with their assistance.
22. The basic and fundamental question involved in these proceedings is whether the agreement dated 14-7-1996 executed by respondent No,1 in favour of respondents Nos.2 and 3 was forged and ante dated and prepared to defeat the rights of the appellants. The appellants filed their suit on 23-2-1997 while respondents Nos.2 and 3 filed their suit 2-1/2 years later i,e, 18-6-1999. In the suit filed by the appellant, respondents Nos.2 and 3 were not impleaded as parties. Respondent No,1 filed his written statement in which he took the position that he has appointed Abdul Ghaffar as his general attorney, the earnest money of Rs,50,000/- had not been received from the appellants and the agreement to sell stood cancelled. He further submitted that the general attorney had transferred the suit property to respondents Nos.2 and 3 by way of Mutation No,543.
23. Despite having taken the aforesaid position, respondent No,1 made a statement on 13-7-2000 in favour of the appellants and received the entire sale consideration. Thereafter he filed a written statement in B the suit filed by respondents Nos.2 and 3 in which he took a diametrically different stance. It is interesting to note that even in his new version, he did not bother to explain the inconsistent positions taken by him in his response to the suit filed by the appellants.
24. It may also be noted that respondent No, I who was the owner of the property had allegedly executed two agreements to sell, one in favour of the appellants and other in favour of respondents Nos.2 and 3. He did not appear as a witness against respondents Nos.2 and 3 despite having taken the side of the appellants by making a conceding statement in their favour and receiving the sale consideration from the appellants. It is also noteworthy that he never appeared in court to rebut or deny having executed an agreement to sell in favour of the said respondents rather respondent No,1 admitted having executed agreement to sell in favour of respondents Nos.2 and 3 in his statement made in Court on 13-7-2000. In my view proof of the agreement to sell by respondent No,1 in favour of respondents Nos.2 and 3 on 14-7-1996 on the basis of credible oral and documentary evidence (as is discussed in the following paragraphs) was sufficient to entitle respondents Nos.2 and 3 to a decree for specific performance even if the agreement to sell executed by respondent No, I in favour of the appellants were to be proved as genuine.
25. Respondents Nos.2 and 3 produced Muhammad Ashraf Patwari, P.W.1, who stated in his statement that on 15-2-1997, he had made an entry in the Roznamcha Waqiati Exh.P1, on the basis of which report No,293 was prepared on the statement of general attorney of Mushtaq Ahmad namely Abdul Ghaffar. Lqbal Mahmood, P.W.2 was the scribe of the agreement, Akbar Ali P.W.3 was the marginal witness, Muhammad Amjad one of the respondents appeared as P.W.4, Syed Liaqat Ali Naqvi, Special Judicial Magistrate, who at the relevant time was Tehsildar Gojra appeared as P.W.5 and stated that mutation No,543 was produced before him and Abdul Ghaffar, attorney of Mushtaq Ahmad had admitted that the sale had taken place and that he had signed the said mutation. The general attorney namely Abdul Ghaffar appeared as P.W.6 and confirmed that respondent No,1 had executed an agreement with respondents Nos.2 and 3. He also confirmed that the general power of attorney Exh.P4 was never cancelled and on the basis of said document mutation of sale was entered in favour of the respondents.
26. The evidence discussed above is consistent, free from material inconsistencies, sufficient, adequate and confidence inspiring to establish that there indeed was an agreement to sell executed by respondent No, I in favour of respondents Nos.2 and 3. In addition, the said agreement to sell was prior in time to the alleged agreement to sell in favour of the appellants. Further the respondents had also been put into possession in part performance as is evident from the statements made by them before the civil court, in a suit for injunction filed by respondents Nos.2 and 3. It may be noted that they were found guilty by two courts of competent jurisdiction of having forcibly dispossessed respondents Nos.2 and 3. It is also significant to note that when the appellants filed the suit, they did not implead the respondents as parties despite knowledge that they were in possession of the suit property.
27. On the contrary there is no believable or credible evidence produced in rebuttal and the inconsistent stance taken by respondent No,1 in his written statement and his failure to appear as a witness has deprived the case of the .Appellants as well as respondent 'No,1 of any semblance of credibility. It is also noticed that even the official witnesses namely Muhammad Sharif Patwari and concerned Tehsildar appeared in the court and supported the version of respondents Nos.2 and 3, simply on the ground that the same was substantiated by official record in their custody.
28. There is also substance in the argument raised by the, learned counsel for respondents Nos.2 and 3 that there was not only an agreement to sell in favour of respondents, which was prior in time but the agreement had also partly been performed and the benefit of section 53-A of the Transfer of Property Act was available to respondents Nos.2 and 3. The fact that respondents Nos.2 and 3 were in possession is also substantiated by the restraining order passed by the Civil Court on 25-5-1999, in which respondent No,1 and the appellants were restrained from illegally dispossessing the respondents Nos.2 and 3. The statement made by the appellants before the court to the effect that they will not interfere in the possession of respondents Nos.2 and 3 also points towards the possession of the suit property by the said respondents.
29. It appears that the appellants prepared an ante dated agreement to sell dated 6-2-1997 after they took forcible possession of the suit property on 18-7-2001. However, even if their agreement to sell is taken to be genuine, it would not help their case in view of the fact that agreement to sell in favour of respondents Nos.2 and 3 stands established on record and was admittedly prior in time.
30. Admittedly, initial burden to prove the agreement to sell was on respondents Nos.2 and 3. As discussed above, they discharged such onus by producing documentary as well as credible oral evidence. Thereafter onus shifted on the appellants, who were alleging that the agreement to sell was forged and fraudulent and had been ante dated. As discussed above, the appellants failed to discharge such onus in consequence of which the learned subordinate courts were quite justified in decreeing the suit filed by respondents Nos.2 and 3. Reference in this regard may usefully be made to Khan Muhammad v. Muhammad Din through LRs, (2010 SCM R 1351).
31. A perusal of the record indicates that both the learned subordinate courts have recorded concurrent findings of fact. It is settled law that concurrent findings of fact cannot lightly be interfered in second appeal. The learned counsel for the appellant has not raised any question of law that may require consideration by this Court in exercise of its jurisdiction under 100, C.P.C.
32. The learned counsel for the appellants has not been able to convince me that there is any misreading or non- reading of evidence by the learned subordinate courts. I find that the learned subordinate courts have passed the impugned judgments and decrees after due application of mind and careful appreciation of oral and documentary evidence produced by the parties. Further, I find that the judgments and decrees recorded by the learned subordinate courts do not suffer from any illegality of material irregularity that may require interference by this Court.
33. For the foregoing reasons. I do not find any merit in this appeal. It is accordingly dismissed.