' AMIN-UD-DIN KHAN, J Through this single judgment I intend to decide the above captioned appeal as well as R.S.A.No.293 of 2010, as both these appeals have been directed against the same judgment and decrees dated 30-11-2010 passed by learned Addl: District Judge, Narowal, whereby by accepting the appeals filed by the respondent judgment and decrees dated 29-5-2010 passed by learned Civil Judge 1st Class, Narowal, were set aside.
2. The facts, in brief, are that the appellant, Muhammad Sajawal Bhatti on 6-3-2008 filed a suit for specific performance on the basis of an agreement to sell dated 12-7-2007. The respondent, Habib Ullah also filed a suit for declaration and cancellation of document on 3-3-2009. Both the suits were consolidated and the proceedings were ordered in the suit for specific performance filed by the appellant. After the closures of trial vide judgment and decrees dated 29-5-2010 suit for specific performance filed by the appellant was decreed, whereas the suit for declaration and cancellation of document filed by the respondent was dismissed. The respondent filed two appeals before learned first appellate court which were accepted vide judgment and decrees dated 30-11- 2010, by way of which, suit filed by the appellant for specific performance was dismissed and suit for declaration and cancellation of document filed by the respondent was decreed. Hence, these two appeals.
3. Learned counsel for the appellant argue that the suit property measuring 12-kanals owned by the respondent was previously mortgaged with the appellant for a consideration of Rs.88,000 through Exh.P-2, which is admitted between the parties and further that the respondent entered into an agreement to sell with regard to the same property and total consideration amount of suit- land was fixed as Rs.300,000; that the respondent has received an amount of Rs.2,33,000 and the balance amount was Rs.67,000. Further states that the agreement Exh.P-1 is an admitted document, as the respondent has not denied his thumb-impression or receipt of Rs.2,33,000.
Learned counsel argues that even the witnesses have fully proved this document and that the plea taken by the respondent that he received further amount of Rs.145000 as mortgage money for the same land, is neither plausible nor acceptable to a prudent mind and that the learned trial Court has recorded well reasoned findings, whereas the view taken by learned first appellate court is contrary to law as well as the admission of respondent and also against the evidence, therefore, the findings are contrary.
4. On the other hand, learned counsel for the respondent has supported the findings recorded by learned first appellate court and prayed for dismissal of both the appeals.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. Learned counsel for the respondent when confronted to the position that when the suit-land already was all mortgaged with the appellant for a term of 10 years starting from the year 2006 to 2016 for a consideration of Rs.88,000, which was already received by the respondent, then what necessitated the appellant to pay an amount of Rs.145000 for the same land as mortgage money, learned counsel states that the new agreement for further period of mortgage was to be written. I am afraid that this was never pleaded by the respondent. If the argument' of learned counsel for the respondent be considered correct, then it means that for a period of 20 years after 2016 the suit property has been mortgaged with the appellant.
7. I have noticed that the respondent has admitted Thai he brought the stamp paper of Exh.P-1. He has admitted the receipt of money mentioned in this document. I have read this document.
Though this document is not well-worded and also the stamp paper, was purchased for the purpose of an affidavit but when the respondent himself admitted that he purchased the same, as an agreement was to be written on this stamp paper, therefore the fact which has been admitted by the adverse party needed not be proved through evidence. Even the appellant has produced the marginal witnesses and proved the agreement. Even DW-2, who is the witness of respondent, has also supported the writing of this document as well as admitted that at the time of writing it was react, over to the parties. In these circumstances, when the defence of respondent is visibly dishonest and against the documentary evidence, therefore it was not acceptable. I have observed that the appellant has fully proved his case, rather there are many admissions also on the part of respondent. I am of the considered view that learned trial Court has recorded the well reasoned findings upon the material issues, whereas learned first appellate court has wrongly reversed the findings of trial Court on issues Nos.1, 2, 4 and 5.
8. In the light of what has been discussed above, both the appeals are accepted and the impugned judgment and decrees dated 30-11-2010 passed by learned Addl. District Judge, Narowal, are set aside and that of learned trial Court are restored.