AMIN-UD-DIN KHAN, J.---- Through this civil revision the petitioner has challenged the judgment and decree dated 10.3.1999 passed by the Additional District Judge, Rahimyarkhan whereby an appeal filed by the petitioner was dismissed against the judgment and decree dated 13.6.1994 passed by the learned Civil Judge, Rahimyarkhan whereby the suit for specific performance filed by the petitioner was dismissed.
2. Brief facts of the case are that on 11.3.1979 the petitioner-plaintiff filed a suit for specific performance on the basis of registered agreement to sell dated 11.3.1976 executed by defendant No. 1 in favour of the plaintiff-petitioner. Defendant No. 2 wife of defendant No. 1 who after agreement to sell in favour of the petitioner procured a declaratory decree on 19.3.1977 from Civil Court with regard to a portion of the suit property which was also challenged in this suit: The defendants appeared and filed their written statement. They have denied from the agreement to sell. The learned Trial Court framed issues and invited the parties to produce their respective - evidence. Both the parties produced their oral as well as documentar evidence. The learned Trial Court vide judgment and decree dated 13.6.1994 dismissed the suit. An appeal was filed which was also dismissed by the Appellate Court on 10.3.1999, hence this civil revision.
3. Learned counsel for the petitioner contends that the registered agreement to sell Ex.P-1 and receipt of money Ex.P-2 were fully proved by the petitioner-plaintiff. He further contends that the property was pledged with the Agricultural Development Bank of Pakistan, therefore, the sale-deed could not be registered. Almost full consideration amount was paid and only Rs. 1,000/- intentionally was not paid for part performance. He further states that both the Courts below fell in error in ignoring the material evidence produced by the petitioner-plaintiff. He further states that when the documentary evidence is available even the contents of the documents cannot be put to the witnesses and further that the learned Trial Court fell in error while highlighting and admitting the minor discrepancies in the statements of the witnesses as the statement was being recorded after a long period of execution of the agreement to sell. Learned counsel further states that even the defendant has not denied his signatures on Ex.P-1 and further that he has not denied his signatures before the Sub-Registrar. Further states that as the previous suit with regard to a part of the property as claimed her dower by defendant No. 2 wife of the seller was withdrawn and dishonestly after entering into agreement with the petitioner-plaintiff, the suit was filed by defendant No. 2 and was fraudulently got decreed on the basis of consenting statement vide judgment and decree dated 19.3.1977. Therefore, learned counsel states that the same has also been challenged in this suit, as learned counsel states that Section 12(2), CPC was incorporated in the Civil Procedure Code as long therafter.
4. On the other hand. Learned counsel for the respondents contends that there are concurrent findings of facts recorded by both the Courts below and states .That defendants have proved Mark-A through which Rs. 26,0001-was taken by the plaintiff as loan.
5. I have heard the arguments advanced by the learned counsel for the parties and have examined the record with their able assistance.
6. When confronted to the learned counsel for the respondents that when there was a registered document i.e. Ex.P-1 before the Court and defendants have not denied from the registration of the agreement and they have not even denied signatures upon that document whether defendants have filed any suit for cancellation of that document, learned counsel states that answer is in negative and further why PW.1 and PW.3 who are Advocates have deposed against the defendants when they have no personal interest in the property or they have no personal gain. Learned counsel for the respondents only states that they 'are the Juniors of Rashid Ahmad, Advocates. I have noticed that both plaintiffs-petitioners are Advocates but in my view it is not sufficient that a Junior without any personal interest will become a party for making fictitious documents in favour of their alleged Senior Advocates. Even it is not the case of the defendants-respondents during whole of the proceedings before the learned Trial Court. So far as Ex.P-1 is concerned, admittedly it is registered document. Its scribe Abdul Rehman appeared as PW.2 and a marginal witness Afroz Ahmad Naqvi, Advocate appeared as PW.1 and Malik Atta Ullah, Advocate who had identified the defendant Makhdoom Muhammad Hussain before the Sub-Registrar appeared as PW.3. The scribe of Ex.P-2 receipt and its marginal witnesses are the same. There was a registered agreement to sell which was proved by the plaintiff-petitioner and which has not been challenged in any suit by the defendants-respondents. Further the respondents-defendants have not denied from the signatures on Ex.P-1 and Ex.P-2. Further when the defendants-respondents got the signatures of the petitioner compared on mark-A, then his own signatures on Ex.P-1 and Ex.P-2 could have been compared with his admitted signatures and he has not moved for the same. This conduct of the defendants-respondents also speaks volumes. Further the conduct of the respondents that after entering into the agreement to sell with the petitioners, he admitted the declaratory suit filed by his wife with regard to a part of the suit property whereas previous to that he has contested her family suit as Haq-ul-Mahr with regard to the suit property, this circumstance also goes against the respondents. Further it is not denied that the property was pledged with the Agricultural Development Bank and even the learned counsel today appearing on behalf of the said Bank states that an amount of Rs. 28,500/-was outstanding on 1.1.1988 against the suit property.
Therefore, the view taken by the Courts below why Rs. 1,000/- was not in accordance with record, though in my view even the property was pledged with the bank and if it be transferred then the charges on the property will also flow with the property and the new owner will be bound to discharge the charge created by the previous owner on the property. But ordinarily it is a common trend that purchaser always waits till the time the charge on the property is discharged and every purchaser tries to purchase the property free from the charges and encumbrances. In this case the reasons for entering into the agreement to sell and paying the major portion of the price of the property have been mentioned in the agreement.
7. In the above circumstances, it is clear that findings recorded by both the Courts below on issues Nos. 1 to 3 are absolutely wrong. I have also observed that the circumstances of the case clearly show that when agreement to sell between the plaintiff and defendant No. 1 is proved then after entering into agreement to sell with the plaintiff-petitioner, defendant No. 1 fraudulently transferred a portion of the property by consenting statement made by defendant No. 1 in favour of defendant No. 2 in a declaratory suit, which is a matter of record, therefore, the learned Trial Court wrongly decided issue No. 3-A. I have noticed that the findings on issue No. 3-D are against the record. I have also noticed in the written statement filed by defendant No. 8, there is evasive denial, there is no specific denial by him. Transaction by defendant No. 2 in favour of defendant No. 8 is hit by principle of lis pendence. Therefore, it is nullity in the eyes of law. It has no effect against the rights of the petitioners-plaintiffs. Through oral evidence the documentary evidence cannot be ignored or negated. The plaintiff-petitioner proved issues Nos. 1 to 3 in his favour, therefore, on these issues findings recorded by both the Courts below against the petitione-plaintiff are absolutely wrong.
Rs. 1,000/- before the learned Trial Court within one month, till 31.3.2012.
Civil revision .