' AMIN-UD-DIN KHAN, J.---Through this single judgment, I intend to dispose of Civil Revision No,65- D-1998 and Civil Revision No,66-D of 1998 as common questions of law and facts are involved in these matters.
2. Through these civil revisions the petitioners have challenged the judgments and decrees dated 24-1-1998 passed by the learned Additional District Judge, Christian who has accepted the appeals filed by the respondents and also dismissed the cross objection filed by the petitioners and set aside the judgment and decree of specific performance dated 27-4-1994 passed by the Civil Judge Christian partially decreeing the suit and also through the consolidated judgment and decree suit for possession filed by respondents Nos. 1-to 4 was dismissed.
3. Brief facts of the case are that Faqir Ullah filed a suit for specific performance on 16-2-1980 on the basis of agreement to sell dated 2-7-1957 with regard to the suit property measuring 5 marla fully described in the head note of the plaint and also challenged registered sale-deed dated 15-9- 1979 and Mutation No, 2689 sanctioned on 23-9-1977 on the basis of said sale-deed in favour of defendants Nos.5 to 8 Mst.Naseem Akhtar and her three minors sons. He also prayed for possession of some portion of land. Another suit was filed by Mst.Naseem Akhtar etc. Purchaser of suit property through registered sale deed mentioned (surpa). This suit was filed on 11-3-1985. Written statements were filed and execution of any such agreement was denied by the defendants. The learned trial court on 11-6-1980 framed various issues in a suit titled Faqir Ullah v. Settlement Department filed by the predecessor of petitioners and subsequently vide order dated 27-11-1986 the proceedings of the suit titled Mst.Naseem Akhtar v. Hamid Ullah were consolidated with this suit and six additional issues were framed for the purpose of both suits. The learned trial court invited the parties to produce their respective evidence. Both the parties produced their respective oral as well as documentary evidence. The learned trial court vide its judgments and decrees dated 27-4- 1994 partially decreed the suit for specific performance filed by the petitioners and dismissed the suit filed by Mst.Naseem Akhtar etc. For possession. Two appeals were filed by Mst.Naseem Akhtar etc. And a cross-objection was filed by the petitioners/plaintiffs of the suit for specific performance as their suit was partially dismissed. The learned Additional District Judge vide judgment and decree dated 24-1-1998 accepted both the appeals and dismissed the cross-objection. The result is that suit for specific performance filed by the petitioners is dismissed and suit for possession filed by Mst.Naseem Akhtar etc. Was decreed against which these two civil revisions have been' filed.
Civil Revision No,65-D of 1998 has been filed against the dismissal of suit for specific performance whereas Civil Revision No,66-D of 1998 has been filed against the decree for possession in favour of Mst.Naseem Akhtar etc.
4. The complete and comprehensive facts have been given in the judgments of the trial court as well as first appellate court, therefore need not to be produced in this judgment.
5. Learned counsel for the petitioners contends that the learned first appellate court has mis-read the evidence produced by the petitioners. Further that first appellate court has gone unnecessarily into minor details of the evidence produced in support of the agreement and further that first appellate court has minutely scrutinized the evidence. Further states that two witnesses to prove the agreement to sell Exh. P-1 has been produced but the learned appellate court has not considered the statement of P.W.4 who has written this agreement. Learned counsel also referred the other documentary evidence in support of his contentions to prove the possession over a part of the suit property. Learned counsel further stated that the original sale-deed allegedly in favour of the respondent Mst.Naseern Akhtar etc. Has not been produced in the court. Further that the courts have wrongly relied upon statement of Hafiz Qutab Din (original owner) recorded in other proceedings. Further that limitation was not a bar against the petitioners because in the agreement the date for completion of transaction was not mentioned. Lastly, the learned counsel states that as the learned first appellate court has observed that the petitioners have not challenged all the sale-deeds, therefore, he states that he is ready to get the property which has been transferred through the impugned sale deed in favour of the respondents and as the petitioners have not challenged other sale-deeds in the suit, therefore, to that extent he will not press for the decree of specific performance of agreement. Learned counsel further stated that the sale deed copy of which has been produced as Exh. D-6 relates to a part of property soled by owner Qutab Din in favour of Muhammad Ubaid Ullah through registered sale deed dated 7-11- 1960. Faqir Ullah is just an identifier of the seller on that document and no inference against Faqir Ullah can be .Drawn.
6. On the other hand, learned counsel for the respondents states that the suit was absolutely time barred and the alleged mortgage of the suit property was not proved, as learned counsel states that the revenue record has been produced by both the parties, therefore, there is no endorsement of the mortgage of the suit property with non-Muslims. Learned counsel further states that the sale of one portion of the property prior to the sale in favour of Mst.Naseem Akhtar was made through registered sale Ex. D-6 and on this document Faqir Ullah was shown an identifier of the seller and after the sale through Exh.D-6, the total remaining property of Qutab Din was measuring 3 marla which was sold in favour of Naseem Akhtar etc. Further that in the sale deed there is mention of the suit property and Faqir Ullah has been shown as tenant over the suit property of the original owner i,e, Qutab Din and further that Faqir Ullah had identified the seller on this document who was Reader of the Civil Court, therefore, he cannot be presumed to be ordinary person and was well conversant with the facts mentioned in the document. Further that DW.1 has stated in the statement that it was offered by Qutab Din to take oath on Holy Quran that no agreement to sell was written between Qutab Din and Faqir Ullah. The statement of Qutab Din to this regard is Exh.D- 13 on the file. Learned counsel states that the statement of Akhtar Ali P.W.4 who has allegedly written the agreement cannot be presumed to be an attesting witness as he is ignorant about the facts mentioned in this agreement to sell and learned counsel stated that the statement of P.W.4 who has been shown as attesting witness is also not confidence inspiring and is not sufficient to prove the agreement. Further stated that on the ticket name of Wahid-ulHassan Qureshi has been written. It seems that it was issued in his name on 2-3-1957 and afterward the name of Hafiz Qutab Din was writtenwhich is in another hand writing. Further that share mentioned the agreement i.e 27/120 comes to 3 marla and not 5 marks. In reference to Jamanbandi Exh.D-7 and Exh.D-9, learned counsel argues, it is clear that this document was fraudulently prepared with anti-dated endorsement.
7. I have heard the arguments advanced by the learned counsel for the parties and have examined the material available on record.
8. As I also observed that the judgment of the first appellate court is in full detail. He has minutely scrutinized the record. The objection of the learned counsel that the minute scrutiny of the evidence was not necessary. I am afraid that this contention of the learned counsel for the petitioner is absolutely wrong as it is a fundamental principle of civil law that a judgment is pronounced on the preponderance of evidence and civil court is bound to probe into every minor detail of the evidence documentary as well as oral before reaching to a conclusion and the first appellate court has rightly scrutinize the evidence. Even at this stage it will be interesting that when I have further scrutinized the record the further details against the petitioner came out from the record. That the stamp affixed of Exh.P-5 is of court fee of 8 Annas, whereas on an agreement the court fee was not required. It was required to be written on a non-judicial stamp paper. If stamp paper is not available, non-judicial stamp of the required value was required to be affixed. This judicial stamp has absolutely no value for this agreement to sell. Further I have observed that the alleged agreement to sell consists upon two pages which are not attached with each other. At the first page there are absolutely no signatures of any body neither of the alleged vendor or any witness or any identifier or any endorsement by the alleged Magistrate. First page of the alleged agreement being unsigned by anybody is worthless and further that the second page also does not contain the signatures of the alleged vendee. This is unilateral writing by a person allegedly the seller in favour of the alleged purchaser who is not a party to this alleged agreement and also has not signed this paper. In my view it does not constitute a contract because a contract binds both the parties to an agreement when the alleged vendee is not a signatory to this alleged contract then how he is bound by that contract.
9. So far as possession of the property is concerned Ex. D-6 which is sale-deed and Faqir Ullah is signatory to that document as identifier of the seller Qutab Dina In this document Faqir Ullah has been shown as tenant over the suit property, therefore this fact which was recorded in a registered sale-deed in the year, 1960 has value. The objection of the learned counsel for the petitioners that the original sale deed has not been produced by purchaser Mst.Naseem Akhtar etc. Has no legal value as the impugned sale-deed in favour of Mst.Naseem Akhtar etc. Has not been denied but it was accepted by the seller, therefore, when plaintiffs failed to prove the agreement to sell in this case, there was no necessity to prove the sale, deed in favour of Mst.Naseem Akhtar etc., subsequent vendee. The learned first appellate court has discussed in detail the discrepancies and wrong entries of the shares of the suit property which also shows that the alleged agreement is forged and fictitious document. Further that the alleged mortgage of the suit property mentioned in the agreement to sell has not been proved.
10. A part of the suit property was sold in 'the year 1960. It was a clear denial by the owner of the property of the agreement to sell. If the plaintiffs were able to prove the alleged agreement to sell even then their suit was time barred, as under the law when part of the property promised to be transferred in favour of a person has been transferred to another person, that constitutes a clear denial on the part of the alleged vendor and that gives cause of action to file the suit and limitation would also start from that point. In this case the plaintiffs of suit for specific performance failed to prove their agreement. Even if their agreement for the sake of argument be presumed to be genuine even then the property which was part of that agreement was transferred in the year 1960 through registered sale deed definitely cause of action and limitation started from that point and suit filed in the year 1980 was clearly time barred.
' In the light of what has been discussed above, these civil revisions having no merits are dismissed with costs. #EndJudgment