' MUHAMMAD KHALID MEHMOOD KHAN, J.---One Abdul Ghani Cheema filed a suit for specific performance of an agreements, regarding property No,439/D Peoples Colony, Faisalabad, against the legal heirs of Muhammad Sharif claiming that Muhammad Sharif entered into agreements of sale on 16-1-1983 and 12-11-1984 with him, One Allah Bakhsh filed a suit for possession and compensation against Abdul Ghani of the same property claiming the owner thereof, learned trial court consolidated both the suits and framed the following consolidated issues:-- "ISSUES:
(1) Whether Abdul Ghani plaintiff has no cause of action or locus standi to file this suit? OPD Allah Bux defendant.
' Whether the suit of Abdul Ghani is not maintainable in its present form? OPD
(3) Whether the Allah Bux and others, the contesting defendants, are entitled to receive special costs from their opponent if so, to what extent? OPD Allah Bux etc.
(4) Whether the suit of Abdul Ghani is bad for mis-joinder of parties? OPD Allah Bux defendant.
(5) Whether Muhammad Sharif, the predecessor of defendants Nos.2 to 6 (Muhammad Khalid and others) had executed first agreement to sell dated 16-1-1983 and the second on 12-11-1984 along with receipts in respect of disputed house in favour of Abdul Ghani, the original plaintiff for the sale price of Rs, 5,50,000 under valued instead of Rs,13 lacs and the receipts of entire sale price and transferred its possession to him, if so its effect? OPP
(6) If issue No,5 is answered in the affirmative whether the plaintiffs are entitled to the specific performance of the contracts of sale or in the alternative are entitled to recover a sum of Rs,63 lac (Rs,13 Lacs as sale price and Rs,50 lacs as damages and compensation) as per plaint from defendants Nos.2 to 6 the successors of Muhammad Sharif deceased? OPP
(7) Whether Allah Bux defendant had validly purchased the disputed house from Muhammad in
(sic) defendant through defendant No,1 vide agreement to sell dated 28-5-1986 registered on 14- 6-1986? OPD
(8) Whether Muhammad Sharif the predecessor of defendants Nos.2 to 6 had inducted Abdul Ghani plaintiff into the disputed house as a licensee of Allah Bux defendant, if so, whether Allah Bux defendant is entitled to recover compensation from Abdul Ghani for its use and occupation and to what extent? OPD. Allah Bux defendant.
(9) Whether Allah Bux plaintiff in the counter suit has no cause of action or locus standi? OPP (10)Whether the counter suit of Allah Bux is bad for mis-joinder of parties and is he liable to pay special costs to Abdul Ghani plaintiff and Muhammad Din defendant? OPP-8.
(10-A) Whether Housing and Physical Planning Department was not competent and have no lawful authority to effect subsequent transfer of plot on which house had been built by private party having No,439-D Peoples Colony, Faisalabad to defendant No, 17 OPP (10-B) Whether documents on the basis of which subsequent transfer of house No,439-D Peoples Colony Faisalabad by Housing and Physical Planning Department was effected in favour of defendant No,7 (Allah Bux) are result of mala fide, collusion, deception, concealment, fraud and without lawful authority and as such, these alleged documents are ineffective and inoperative against the rights of the plaintiff and are liable to be cancelled? OPP
(11) Relief "
2. Both the parties adduced their respective evidence and learned trial court decreed the suit of Abdul Ghani Cheema v. Muhammad Sharif (Suit for specific performance of agreement) and dismissed the suit of Allah Bakhsh v. Abdul Ghani (Suit for possession and compensation) through a consolidated judgment dated 6-11-1996.
3. As both the R.F.A. No,594 of 1996 and R.F.A. No,595 of 1996 are against one consolidated judgment and as such we propose to decide both the appeals through this single judgment.
4. Learned counsel for appellants submits that learned trial court has failed to appreciate the evidence available on record and wrongly relied upon agreements to sell and receipts allegedly executed by deceased Muhammad Sharif. The appellants have specifically denied the signatures of Muhammad Sharif on all the documents, learned trial court has not considered the fact that Muhammad Sharif was not the owner of property in dispute and there was no concluded agreement between the parties. He further submits that it was the duty of the respondents to prove that Muhammad Sharif deceased entered into agreement to sell of Rs,1.3 million. Learned counsel submits that Allah Bakhsh is the transferee of suit property through registered sale-deed executed by Housing and Physical Planning Department (hereinafter referred to as the Department), whereas Muhammad Sharif was not the owner of suit property at the time of alleged agreements to sell, hence the agreements if any are allegedly by the non owner. He adds that on the alleged day of execution of agreements to sell, Muhammad Sharif was not in Faisalabad. Learned counsel lastly submits that respondents have not pleaded the protection of section 41 of Transfer of Property Act hence the learned trial court has wrongly relied on section 41 of the T.P. Act.
5. Learned counsel for respondents submits that agreements to sell and receipts have been proved beyond any shadow of doubt and as such learned trial court has rightly passed the decree.
He further submits that appellants have failed to prove on record any amount sent by Dr. Fazal Ahmad to deceased Muhammad Sharif for purchasing the property in dispute. Learned counsel supports the impugned judgment and decree. Learned counsel adds that Allah Bakhsh has himself admitted that he never paid any amount to Malik Muhammad Din, the earlier owner of suit property.
6. We heard learned counsel for parties and examined the record.
7. The appellant's case is that, their predecessor-in-interest Muhammad Sharif had purchased suit property from Malik 'Muhammad Din, on behalf of his son in law Dr. Fazal Ahmed who in the year 1982 remitted the amount from United State of America to deceased Muhammad Sharif, deceased purchased the suit property against consideration of Rs,860,000. The predecessor-in-interest of respondents Abdul Ghani Cheema was his friend and was living in a rented house, in the year 1984, his landlord directed Abdul Ghani to vacate his house, Abdul Ghani requested Muhammad Sharif to allow him to reside in suit property temporarily, Abdul Ghani after the death of their predecessorin-interest by preparing a fake sale agreement filed suit for specific performance of an agreement, the alleged agreement to sell is a forged and fabricated document, their predecessor- in-interest got transferred the suit House in the name of Allah Bakhsh, the father of Fazal Ahmed.
The suit house is situated in the Housing Scheme developed by Provincial Government and was managed by Housing and Physical Planning Department (hereinafter referred to as ."Department").
Department under its rules at the relevant time was not allowing sale and purchase of allotted plots and the sellers were transferring plots in their record on the basis of seller and purchasers statement and their affidavits.
8. The case as set up by the respondents is that their predecessorin-interest Abdul Ghani purchased the suit house from Muhammad Sharif against consideration of Rs,550,000, and paid Rs,103,140 being the earnest money through agreement dated 7-5-1983, Rs,300,000 was paid on 26-7-1983 against receipt and second agreement to sell was executed on 12-1-1984 on payment of balance amount of Rs,150,000. In addition to Rs,550,000, a sum of Rs,3,140 was also paid for depositing the price of plot. Muhammad Sharif handed over the possession of suit house to Abdul Ghani Cheema on 12-11-1983 on receipt of last instalment of Rs,150,000. Abdul Ghani continued to request for transfer of suit house in his name with the Housing and Physical department but Muhammad Sharif failed to get the suit House transferred in favour of Abdul Ghani.
9. The respondents examined the scribe, marginal witnesses, exhibited both agreements to sell as Exh.P1 and Exh.P'4, Exh.P2 and P.5 the two receipts, the scribe who is an advocate and two marginal witnesses deposed that parties entered into an agreement to sell Exh.P1, Muhammad Sharif received amount before them and executed agreements to sell and receipts. They all were subjected to lengthy cross-examination but they all remain confident and firm on their statements.
P.W.10 Muhammad Ishaq Housing Inspector appeared and deposed that on 7-8-1982, Malik Muhammad Din applied for transfer of suit house in favour of Muhammad Sharif son of Karam Bakhsh and submitted two affidavits Exhs.P-9 and P-10, in cross-examination he admitted that suit house was not transferred in favour of Muhammad Sharif, Malik Muhammad Din then submitted an affidavit and requested that suit house be transferred in the name of Allah Bakhsh and on 26-5- 1988, the suit house was finally transferred in the name of Allah Bakhsh. He placed on record Exh.P8 application of Muhammad Sharif, affidavit of Muhammad Din Exh.P9, Affidavit of Muhammad Sharif Exhs.P10 and P11. He in cross-examination admitted that they are not retaining or maintaining the record of sale and purchase of property, they only retain the record of transfer of plot, and as per their record Allah Bakhsh is the owner of suit property. During the pendency of suit Abdul Ghani died, his one son being the legal heir appeared as P.W.14. And deposed that in fact the suit house was purchased for Rs,1,300,000 and it was agreed that sale deed will be executed for Rs,550,000 and Rs,3,140 the price of plot was paid in addition to agreed price. He deposed that on 16-1-1983 against payment of Rs,103140 an agreement to sell and receipt was executed, second installment of Rs,300,000 was paid on 27-5-1983 against receipt on 9-11-1984 Rs,746,000 and some'rupees were paid, and on 12-11-1984 further Rs,150,000 was paid, Abdul Ghani Cheema paid the entire consideration to Muhammad Sharif, who handed over the possession of suit house to Abdul Ghani Cheema, they are paying the property tax of suit property till today. In cross-examination he admits that all amount were paid to Muhammad Sharif and states that we filed application for amendment of plaint after the death of their father, he is not aware whether his father completed the entire evidence or not? He denied the suggestion that Muhammad Sharif handed over the possession of suit property to Abdul Ghani Cheema temporarily. P.W.15 is Syed Mazhar Hussain who is Lawyer by Profession, he deposed that on 9-11-1984 approximately at 5 p.m., in his office 158 Circular Road Faisalabad, Abdul Ghani, Muhammad Sharif, two sons of Abdul Ghani, Zia and Zaka and one Syed Abdus Salam were present, in their presence, Abdul Ghani paid Rs,746,000 and some rupees to Muhammad Sharif, this was in connection with house No,439/D, certain amounts were also paid earlier to the said payment but these were not before him, the deal was for Rs,1,300,000 which they explained before me. In cross-examination, he admits that Syed Abdus Salam, Advocate was his teacher and father-in-law. It is correct that Syed Abdus Salam, Advocate filed the suit on behalf of Abdul Ghani. In our meeting Abdus Salam was also present, he is the witness of payment of Rs,746,000 and some rupees and no receipt for acknowledgment of the above amount was executed, earlier amount were not paid before him.
10. In support of their defence, the appellant have produced DW-1 and DW-2. Who are Deputy Associate Chief Agricultural, Price Commission and Vice President of Kissan Board Pakistan, for establishing the fact that on 12-11-1984, Muhammad Sharif was not present at Faisalabad, they both deposed that Muhammad Sharif was the member of Kissan Board and from 9th November, 1984 to 12 November, 1984 he remained outside Faisalabad in connection with meeting of Sarhad Kissan Board at Peshawar and Islamabad.
11. DW-3 is the son of Muhammad Sharif, he deposed that, Abdul Ghani and his father were friends.
In December, 1984, the Landlord of Abdul Ghani directed him to vacate the rented house, Abdul Ghani requested his father for help, his father due to friendship with Abdul Ghani allowed him to reside in suit house temporarily without any payment of rent, his brother-in-law Dr.. Fazal Ahmed was residing in America, in 1982 he wrote a letter to his father for arranging a Bungalow for him. Dr. Fazal Ahmed remitted amount to his father, his father purchased suit house against consideration of Rs,860,000 and submitted transaction document to UR, UR Office raised the objection that bungalow could not be transferred in his name as, he owns a plot in the same Housing Colony, after that his father transferred the suit house in the name of Allah Bakhsh, on 1-4-1986, his father suddenly died, Abdul Ghani then filed a suit by forging documents, his father never entered into sale agreement with Abdul Ghani, his father was Secretary Kissan Board, in connection with the Board activities, he on 11 to 13th November 1984 attended meeting of Agricultural price commission at Islamabad. In cross-examination he admits that his father told him that he has purchased the house for his son-in-law, he claimed agreements and receipts fake, as his father remains outside Faisalabad for 11 to 13th November, 1984, he deposed that he checked the diary of his father and came to know that on 11-to 13th November 1984, he was in Islamabad, his father's signatures on Exh.P1, P2, P3 to P6 are forged, he is not aware about the department objection against the transfer of suit property in favour of Muhammad Sharif, but his father told him this fact. Dr. Fazal Ahmad remitted money to his father from America. His father handed over possession of suit property on 1-1-1985, before this, suit house was under the tenancy of Mujahid Hospital. It is not in his knowledge, whether Muhammad Din executed any agreement in favour of his father or not? It is correct that his father purchased House No,30-A Peoples Colony, it is correct that my father submitted affidavit, that he does not want the suit property transferred in his name and property be transferred to Allah Bakhsh. Allah Bakhsh has not paid any amount to his father as Dr. Fazal Ahmed, has already paid the price of suit house. He admits that his father submitted an aiTidavit that he does not want to get the suit house transferred in his name.
12. Dr. Fazal Ahmed appeared as DW-4 and deposed that he was living in America near about 1981.
He shown his desire to his father-inLaw Muhammad Sharif for arranging a House in Posh locality, for that he remitted amount for the purchase of house, hence, in 1982 his father-in-law purchased 439/D for Rs,860,000. In cross-examination he admits that his father-in-law purchased 3-A property from his funds, out of two houses, 3-A was purchased before the suit property, himself said 439/D may be purchased before 3-A. It is possible that application for transfer of suit house was submitted before the purchase of House No,3-A.
13. Allah Bakhsh appeared as DW-6, he only claims that the suit property was purchased from the finances of his son, and admits that he has not paid any amount to Muhammad Sharif.
14. The respondents have proved the agreements to sell as its scribe and marginal witness appeared and categorically deposed that consideration was paid before them, documents were executed before them. The appellants remain unsuccessful for shaking the credibility of the witnesses, but it has to be seen whether the parties brought truth before the Court or not?
15. The first plaint filed by Abdul Ghani shows that he claimed two agreements to sell and two receipts, the consideration agreed is claimed as Rs,550,000 and Rs,4,340, Abdul Ghani appeared as P.W.8 and deposed the amount of consideration as per averments of plaint, the scribe and marginal witnesses fully supported the averments of plaint, Exh.P.11 also shows the consideration as Rs,550,000. But after the death of Abdul Ghani his legal heirs sought an amendment in plaint and it appears that amendment was allowed as both the parties are not disputing the said amendment.
After amendment the respondents claimed that in fact the sale consideration was agreed Rs,1,300,000 and it was agreed that the sale deed will be executed against consideration of Rs,550,000 and balance was payable out of books. It seems that the said amendment was planned by the legal heirs of Abdul Ghani Cheema for rebutting the claimed price of appellant, the appellant's claim is that Muhammad Sharif purchased suit house from Malik Din Muhammad against consideration of Rs,862,000.
16. The respondents examined P.W.15 the son in law of their counsel he was examined for proving the payment of Rs,743,000 and other small amount to Muhammad Sharif, but the statement of P.W.15 on the face of it seems to be false, when Abdul Ghani himself appeared in witness box as P.W.3 he has not deposed the story as narrated by his legal heirs, he was cross examined in detail, but he remained confident about the agreed price, agreements and receipts and as such the statement of P.W.8 is not believable and has been generated to overcome the price of Rs,862,000 claimed by appellants.
17. Now the question arose what will be the effect of false statement of P.W.15 on the claim of deceased Abdul Ghani. In our humble opinion the false statement of P.W.15 will not affect the claim of deceased as it is established from the evidence of parties and record that Abdul Ghani claimant in his life time almost concluded his entire evidence and he never tried to change his version which he disclosed in his plaint, further the witness who remains associated with the sale transaction have not uttered a single word that sale transaction was for Rs,1,300,000.
18. It is a proven fact on record that Muhammad Sharif is the purchaser of suit house from Malik Muhammad Din, but the respondents have not produced any document on record in support of their claim that Muhammad Sharif purchased the suit house against consideration of Rs,862,000. It is not the claim of appellants that Muhammad Din was not alive when evidence was recorded. It was very easy for the respondents to produce Malik Muhammad Din in support of their claim that their father purchased the suit property for Rs,862,000, but they have not produced the most important witness intentionally and tried to hide the truth from the court. Further no documentary evidence showing the amount of Rs,862,000 being the price of suit house has been produced on record specially when it is the defence of appellant that they have purchased the suit house for Rs,862,000 and how they can sell the suit house for a lesser amount of Rs,550,000 for losing a substantial amount, no sane person can enter in the bargain of loss. The respondents predecessor-in-interest has proved his agreement to sell with Muhammad Sharif, hence the burden to prove shifted on appellant for establishing their defence. Admittedly Malik Muhammad Din was the owner of suit house, he sold the suit house to Muhammad Sharif, they both appeared before the Department confirming the sale and purchase transaction of suit house and submitted their respective affidavits, which have been produced by the record keeper of custodian department and as such it is proved that Muhammad Sharif purchased the suit house against consideration of Rs,550,000.
19. The appellant's claim is that Muhammad Sharif purchased the house for his son in. Law Dr. Fazal Ahmed who remitted the amount to Muhammad Sharif from America. The legal heirs of Muhammad Sharif, nor Dr. Fazal Ahmed who appeared as P.W.4 has produced any proof of remittance of money, even the period or dates of remittance are not made known to Court. If Dr. Fazal Ahmed has remitted any amount from America that remittance should have been sent through banking channel, the appellant has even not deposed a single word that Muhammad Sharif was maintaining any bank account, suppose if Dr. Fazal Ahmed has remitted the 'amount through "HAWALA" non-banking channel, although this is not the case of appellant, however, for the sake of argument if it is admitted that Dr. Fazal Ahmed has remitted the amount for the purchase of suit house through "HAWALA", the record of the remittance should have been available with remitter, Dr. Fazal Ahmed appeared in Court but has not produced any evidence about the alleged remittance or remittances, he has not deposed the date or dates of remittance or remittances, hence the logical conclusion in these circumstances is that the appellants are not telling truth before the Court.
20. The appellants claim is that Muhammad Sharif purchased the suit house for Dr. Fazal Ahmed, but the affidavits, submitted by Malik. Muhammad Din and Muhammad Sharif did not show even the intention of Muhammad Sharif that he is purchasing the suit house for his son-in-law. It is not understandable what was the restrictions which were restricting Muhammad Sharif to purchase the house in the name of Dr. Fazal Ahmed. It is established fact on record that transfer letter wag not issued in favour of Muhammad Sharif but he was claiming himself to be the owner of suit house as Malik Muhammad Din has surrendered his rights in his favour with the permission of department. The appellants further claim that Muhammad Sharif handed over the possession of suit house to Abdul Ghani temporarily in November, 1984, admittedly Muhammad Shard died on 1- 4-1986 and till the death of Muhammad Sharif there was no dispute or difference between the parties about the possession of Abdul Ghani, it is unbelievable that period of temporary possession could remain uninterrupted for a long period of one and half year that too when Muhammad Sharif was alleged Benamidar. It is also not believable that Muhammad Sharif invested huge amount of other but not earned any rent or profit for real owner.
21. Another defence of appellant is that Muhammad Sharif was the owner of plot in the same Housing Society hnd as such the Department refused to transfer the suit property in the name of Muhammad Sharif, but surprisingly no evidence about the alleged restriction and ownership of other plot have been produced in support of their defence nor DW-1 and DW-2 deposed about the said restriction.
22. The argument of learned counsel for appellant is that, suit House was not transferred in the name of Muhammad Sharif and as such, he could not validly enter into an agreement with Abdul Ghani, this argument is negated from the fact that department transferred the house on the withdrawal of Muhammad Sharif from the suit house when Malik Muhammad Din filed an application Exh.P-9 with the department that Muhammad Sharif has returned the amount of house and Allah Baksh has paid him the price of house and as such the house be transferred in the name of Allah Baksh. It is also an alarming fact that appellants are denying the signatures of Muhammad Sharif but they have not filed any application taking the opinion of handwriting expert and have Simply denied the signatures of Muhammad Sharif.
23. Next argument of learned counsel for appellant is that on 11 and 12 November, 1984 Muhammad Sharif was not in Faisalabad when Exh.P4 was executed. In support of this argument, learned counsel relied on the statement of DW-1 and DW-2 and Exh.D-1.
24. All story narrated by the appellants falls to earth when Exh.P-6, Exh.P-7, Exh.P-8, Exh.P-9, Exh.P-10, Exh.P-11 and Exh.P-12 be examined. Admittedly these documents were produced by the custodian of record and have not been disputed by the parties. Ex.P-6 shows that Malik Muhammad Din, admittedly, the owner of suit property entered in transaction of sale with Muhammad Sharif. Malik Muhammad Din and Muhammad Sharif both submitted affidavits with Department confirming transaction of sale and purchase under the garb of payment of loan. The said affidavits were submitted on 2-8-1982 and the reason for submitting these documents was that the Department was not permitting the sale of suit property till the execution of conveyance deed in favour of allottee. Muhammad Sharif entered into an agreement to sell Ex.P-1 with Abdul Ghani Cheema on 16-1-1983. He executed Exh.P-2 the receipt and Exh.P-3 the receipt of consideration in terms of agreement dated 16-1-1983, he then executed second agreement to sell on 12-11-1984 and specifically averred that he will be liable to get the sale deed executed in favour of Abdul Ghani Cheema. The possession of house was also transferred to Abdul Ghani Cheema. Exh.P-8 shows that Muhammad Sharif and Muhammad Din colluded with each other when on 26-2-1983 Muhammad Din filed application with Housing and Physical Planning Department claiming that Muhammad Sharif has received his amount to him and now the suit property be transferred in the name of Ch.Allah Bakhsh who has paid the amount to him. The perusal of Exh.P-9 shows that it is no where mentioned in the application that Allah Bakhsh has purchased the property against any amount, Exh.P-10 is the affidavit of Muhammad Sharif, he deposed on oath that, he is not interested to get the suit property transferred in his name and the suit property be transferred in the name of Allah Bakhsh, the case of legal heirs of Muhammad Sharif is that Muhammad Sharif purchased the suit house from Fazal Ahmad from his funds but this fact was never brought on the record of the Department, it is also not available on record that one allottee could not purchase other plot in the Housing Scheme. It, appears from the record that Muhammad Sharif in his life time backed out from the agreement to sell after receiving the earnest money, Muhammad Sharif filed an application with the Department for revoking his agreement with Malik Muhammad Din and inspite of revoking his agreement with Malik Muhammad Din, Muhammad Sharif received the balance consideration from Abdul Ghani Cheema on 7-5-1983 and executed Ex.P-3 and P-4. The above said facts will show the fraudulent acts of Muhammad Sharif and Malik Muhammad Din.
25. The appellants have relied on Exhs.D-1 and D-2 which is minutes of meeting of agriculture price commission. These are not the authentic documents and are the photocopies of some alleged minutes of meeting. Further the deceased Muhammad Sharif entered into an agreement to sell with Abdul Ghani Cheema on 16-1-1983 whereas the minutes of meeting shows that the meeting was held on 12-11-1984. No doubt the second agreement is dated 12-11-1984 but the meeting does not show that it was convened early in the morning, it appears from the record that deceased Muhammad Sharif signed agreement Exh.P-4 in early hours of the day and then travelled to.
Islamabad from Faisalabad. Further original minutes have not been placed on record nor the court has examined the same before admitting the photo copies of these documents, further the diary of Muhammad Sharif was not produced, the DW-3 has admitted in his cross examination that he came to know from the diary of his father that on 11th November 1984 his father was not in Faislabad, hence against the over whelming evidence produced by the respondents, the weak evidence of appellant could be relied, in civil case evidence has to evaluated on the doctrine of probability.
26. The last argument of appellant is that appellants are not entitled to the protection of section 41 of the T.P. Act, the respondent case is on better footings, the appellant case is that their father purchased the suit house, their father submitted affidavit with the department along with Malik Muhammad Din the owner of suit house, their father withdrew the affidavit claiming that he is not interested to purchase the house and Malik Muhammad Din consented the said statement then the suit house was transferred in the name of Allah Baksh, hence in these facts and circumstances it is proven fact that at the time of entering in to the agreement to sell Muhammad Sharif was the owner of house, further the possession of Abdul Ghani Cheema is uninterrupted, it is the admission of appellants that their father handed over the possession of suit house to. Abdul Ghani Cheema for temporarily but they have failed to establish this fact.
27. In the above circumstances the logical conclusion of dispute is that Abdul Ghani Cheema purchased the suit house against consideration and it is Muhammad Sharif who committed fraud.
28. The. Upshot of above discussion is that appellants have failed to prove their defence, and the respondents have proved their case and the learned trial court rightly passed the decree in suit for specific performance of agreement and dismissed the appellant suit.
29. The appeals thus fail and we dismiss the same but no order as to costs. ##TSE##