MUHAMMAD AMEER BHATTI, J. --- Through this Regular Second Appeal, the appellants have challenged the judgment of the learned first Appellate Court dated 24.8.2004 whereby it has reversed the findings of the learned Trial Court and set aside the judgment and decree dated 21.4.2004 and decreed the suit of the respondents for specific performance.
2. The brief facts of the case are that the respondent filed a suit for possession through specific performance of an agreement to sell dated 26.10.1997 on the ground that the appellants have entered into an agreement to sell with the plaintiff/appellant for selling the land measuring 18 kanals, 1 marla for a consideration of Rs. 3,00,000/- out of which 39,000/- were received by the appellants /defendants and target date for execution/registered sale-deed was fixed between the parties as 25.6.1998. However, the appellants failed to honour their commitment hence respondent/plaintiff was compelled to file suit on 13.7.1998. The suit was contested by the defendants/appellants wherein they admitted the execution of the agreement to sell but referred to clause of the agreement to the effect that if the vendors failed to perform their commitment, they would pay the double amount of earnest money. Accordingly the defendants had already paid Rs. 78,000/- (double to earnest money) to the plaintiffs because there arose a dispute between their family as the other brothers and sisters were not agreed to sell it. Since they had already paid the double amount as per said clause of the agreement to sell and after receiving the entire amount, the respondent/plaintiff had no right to file this suit. On the basis of divergent pleadings of the parties, six issues including relief were framed and parties led their evidence accordingly. After considering the evidence and arguments of the parties the learned Trial Court dismissed the suit vide its judgment and decree dated 13.7.1998. However, on an appeal filed by the respondents, the learned first Appellate Court vide its judgment dated 30.1.2004 decreed the suit o the respondent/plaintiff.
3. Learned counsel for the appellants contend that the appellants have produced three witnesses to prov payment of sum of Rs. 78,000/- to the respondent/plainti and the respondent appeared as his own sole witness; the respondents' uterine brothers namely Maimon Khan was examined by the appellants as DW-3. This witness and the other DWs deposed that the amount of Rs. 78,000/- was paid to the respondent/plaintiff. The learned Trial Court disbelieved the DWs and dismissed the suit for specific performance but the learned first Appellate Court has decided the suit on the sole ground that at the time of returning this amount of Rs. 78,000/-, the appellants have not received any receipt from the respondent, although they had executed the agreement to sell on a stamp paper when they received Rs. 39,000/-. It is further contended that the brother of the respondent has appeared as DW-3 and no enmity was alleged to that witness. Further contends that a well- reasoned judgment of the learned Trial Court has been reversed without any cogent reason and the same is liable to be set aside.
4. Conversely, the respondent has supported the judgment is in accordance with the evidence produced by the parties and the appellants have failed to prove the return of amount of Rs.
78,000/-: So the demand on the part of the respondents about the specific performance of agreement to sell having legal force and the judgment of the first Appellate Court is in accordance with law and the evidence and nothing has been pointed out about the illegality committed by the first Appellate Court calling for interference in the finding of the first Appellate Court.
5. I have considered the arguments and perused the record with the assistance of the learned counsels for the parties. The plaintiff has alleged in the plaint that at the stipulated date, he approached the Sub-Registrar. He has submitted an application in connection with execution of registered sale-deed according to the agreement to sell but the Registrar refused to accept that application. However, this refusal was in writing as it is clear from para 4 of the plaint but this application has not been brought on the record of this suit which evidences that the respondent neither went to the office of the Sub-Registrar-nor any application had been moved to this effect.
This was the basic document for the accrual of the cause of action and tangible proof of this fact that he has not approached the Court with clean hands by resorting to untruthfulness. On the contrary, the appellants have taken a clear and specific stand which sounds reasonable and correct. They have not denied the execution of the agreement to sell but taking a benefit of the clause as provided in the agreement to sell, they had returned the total amount as mentioned in the agreement to sell. It is settled law that the evidence is to be considered as a whole and not piecemeal. Other than this, the appellants produced the brother of the respondent against whom neither any enmity has been alleged by the respondent nor had been proved by any evidence. So he was the independent witness to depose that the amount was returned to the respondent/plaintiff. Minor discrepancies in the evidence of the DWs which was recorded after 4/5 years cannot be considered as fatal to the rights of the appellants. The testimony of the DWs has fully corroborated the version of the appellants about the payment. Apart from DW-3, the other witness of the transaction was Roop Khan who had died before recording of the statement but the presence of Roop Khan has been explained by the DW-3, who has not been cross-examined on this point which amounts to admission of Roop Khan's presence at the time of this transaction and about his death there is only one suggestion to the DW-3 and the enmity has been denied.
However, the plaintiff appearing as PW-1 has not uttered even a single sentence about the enmity with the Maimon Khan DW-3. So mere suggestion is not enough to discard the evidence of this PW-
3. The appellants have placed on record the photocopy of the agreement to sell on the back of this the respondent his endorsed the receipt of this amount, which was also signed by DW-3 and Roop Khan, who had died before this evidence. The main emphasis of the learned first Appellate Court that since the agreement to sell has been admitted by the appellants, the respondents have no need to prove this document, the evidence of.DW-3 is not confidence inspiring and there are contradictions in DWs-2 and 3 about . Making the entire payment :of Rs. 78,000/-, amounts to misreading and non-reading of the evidence. Hence the judgment impugned is neither sustainable in the eye of law nor on facts and cannot be lawfully maintained.
6. For the reasons given above, this appeal is allowed and judgment and decree passed by the learned lower Appellate Court is hereby set aside. The judgment/decree passed by the learned Trial Court stands proved and restored.