MUHAMMAD AMEER BHATTI, J. - Through this second appeal, the judgment of the learned first Appellate Court dated 18.1.2003 has been challenged whereby the suit for possession through specific performance was decreed in favour of respondent No. 1.
2. The brief facts of the case are that the appellant who was owner in possession of land measuring 17-kanals, 18-marlas entered into an agreement with the respondent No. 1 to sell this land for consideration of Rs. 1,20,000/- and out of this, Rs. 50,000/- was paid as earnest money.
Agreement to sell was written on the stamp paper dated 28.10.1989 and date for completion of this transaction before the Registrar was fixed as 30.11.1990. Since the appellant failed to perform his pi?
Rt of agreement, the respondent No. 1 filed a suit for possession through specific performance on 28.1.1990 against the respondent No. 1 wherein he alleged that the respondent failed to fulfill his commitment and did not appear before the Registrar on 30.11.1990 in connection with the completion of agreement and he waited for the whole date alongwith stipulated amount. He for that purpose, filed application to the Registrar who returned it with the remarks that he had no legal authority to entertain this application. He further alleged that he issued the legal notices to the respondent No. 1 for the fulfilment of his commitment but to no avail, hence constrained to file this suit.
3. The written statement was filed by respondent No. 1. He admitted the execution of the agreement to sell. He admitted the transaction but raised the objection that the plaintiff failed , to fulfill his commitment as he at the time of execution of agreement to sell promised to pay Rs. 50,000/- as earnest money but after incorporating it in the agreement to sell, he paid only Rs. 10,000/- and remaining amount has never been paid by the plaintiff, hence he was not entitled to the decree from this Court. He also took the stand in his written statement that the plaintiff has failed to make the payment of earnest money according to the agreement to sell and by playing fraud, he succeeded in getting incorporated Rs. 50,000/- instead of actually paid amount of Rs. 10,000/- to the defendant. Due to his this fraud, the agreement is null and void and he is not entitled to get decree on the basis of this invalid document. He admitted about the issuance of the notices and also mentioned in the written statement that he sent replies of all those notices. On the basis of this illegal act which amounted to a fraud, the defendant had no obligation to .Fulfill his commitment in favour of the plaintiff and prayed for the dismissal of the suit.
4. During the pendency of this suit, the plaintiff exchanged this disputed land with respondent No. 2, who is real brother of the plaintiff/appellant, however, he was impleaded as defendant No. 2.
Parties adduced their evidence according to their onus of issues. The suit was dismissed by the learned Trial Court vide judgment and decree dated 9.10.2000, however, on appeal filed by the plaintiff, the first Appellate Court reversed the. Findings of learned Trial Court and decreed the suit vide his judgment dated'18.1.2003. Hence this second appeal.
5. The contention of the learned counsel for the appellant is that there is no evidence available on the record about the payment of earnest money - neither through any documentary evidence nor through the oral evidence. Even the marginal witnesses P.W.4 and P.W.5 have failed to prove this fact. To -establish his arguments, he further referred to the evidence of the P.\M5 and P.W.6 who were the marginal witnesses of this document where it is specifically mentioned that Rs. 50,000/- has been paid as earnest money at the time of execution of this document. There is no separate receipt about the payment under this agreement. Neither possession had been transferred nor any proof of payment was established from the evidence of the plaintiff, hence the suit was rightly dismissed by the learned Trial Court but the learned first Appellate Court has not decided the to the evidence available on the record. The findings of the learned first Appellate Court are based on surmises and conjectures. He has totally misread and mis-constituted the evidence which is clear illegality committed by the learned first Appellate Court and same is not .Sustainable in the eye of law and prays for setting aside the impugned judgment with the further prayer to restore the judgment of the learned Trial Court.
6. On the other hand, the learned counsel for the respondent supported the judgment of the learned first Appellate Court and contended that the question of nonpayment of earnest money has not arisen in the presence of the agreement to sell which itself is a speaking document.
Respondent No. 1/plaintiff appeared before the Sub-Registrar with an application and waited in his office for the whole day for completion of the transaction but the appellant has failed to visit the office of Sub-Registrar on the said day and then notices were issued to him, receipts and notices have been placed on record. He also filed an application to the Sub-Registrar about the presence in his office which was also placed on record. All these documents showed that the petitioner remained there all day long with the remaining amount of agreement but the appellant evaded to honour of his commitment. He further contends that till the filing of the suit, he has not raised any objection about the default of the payment committed by the respondent/plaintiff. The appellant has also failed to prove his plea about the non- payment of earnest money, hence the judgment of learned first Appellate Court is legal, according to the facts and circumstances and the evidence available on the record, and prays for the dismissal of the appeal having no substance in it.
7. I have considered the arguments of the learned counsel for the parties and have also gone through the record available in the file.
8. It is settled law that when there are divergent findings of two Courts below then this Court is to give due attention of findings of lower Appellate Court unless it suffers from grave irregularity or the some are perverse or reasons given by the learned lower Appellate Court are not sustainable. I draw guidance from the law laid down by the Hon'ble Supreme Court reported as 2007 SCM R 576 and 2010 SCM R 827. Keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan, I have carefully examined the judgments of both the Courts below as well as the evidence available on the record. I have noted this fact that the appellant/defendant has not disputed the execution of agreement to sell. He has only disputed the underpayment of the earnest money. So he has no objection about the sale of this land to the respondent No. 1 but only objection was that he agreed to pay Rs. 50,000/- as earnest money but he paid Rs. 10,000/- only. Now question arises whether he has brought on record any evidence to this effect that how much amount has been paid to him by the plaintiff at the time of entering into an agreement to sell as earnest money? This was the question' which had to be resolved by producing the evidence. There is no dispute about the execution of an agreement to sell and this agreement to sell reflects not only the contents but also includes the payment of Rs. 50,000/-. There was no occasion for the plaintiff to prove this fact whether the payment of earnest money had been made or not or less payment was made. The main stress of the appellant is that the respondent has failed to make the payment of full earnest money. He became aversive from the attitude of respondent from this transaction, hence he refused to honour this transaction but there is no evidence on the record which shows that he made any effort or from his evidence it does not transpire that he took any action for nullifying or making the refusal and this fact was brought to the notice of the plaintiff by any means. There was no oral evidence to establish the case of appellant on this point as he himself alleged in his written statement and even in his oral evidence that he decided not to fulfill his recommitment due to the fraud "in under-payment of earnest money", committed by the plaintiff. However, the evidence of the plaintiff is clear that payment has been made. Even if it is presumed that the P.W.5 and P.W.6 have not categorically stated that Rs. 50,000/- has been made in front of them but this fact is established from the evidence that the payment has been made, no question about the quantum of total amount has been made, so, it cannot be presumed from their evidence that Rs. 50,000/- mentioned in the agreement to sell has not been paid. Likewise, there is no evidence on the record produced by the defendant/appellant which can establish that he issued a notice for the cancellation of this agreement due to the fraud "as alleged by the defendant/appellant in his written statement, he has been issued to the plaintiff/respondent". So far as the non-acceptance of the oaths as held by the Hon'ble Supreme Court, this should not be considered to be fatal for making the decision on merits. Even otherwise, the counsel for the respondent No. 1 under instructions stated before this Court that his client was even now ready to take oath about the fact that he has made the payment of Rs. 50,000/- at the time of agreement to sell as earnest money which was not accepted by the counsel for the appellant. The finding of the learned first Appellate Court is in accordance with the evidence and the prevailing circumstances. Since another view is possible, cannot be considered a reason for setting aside the judgment of the learned first Appellate Court as held by the Hon'ble Supreme Court in 2007 SCM R 336.
10. In view of the above discussion, I find no illegality, irregularity or perversity in the decision of the learned lower Appellate Court which is a sound reflection of the evidence produced by the parties conforming law. Resultantly, the appeal in hand is hereby dismissed. No order as to costs.