This civil revision is directed against the judgment and decree dated 02.11.1999 passed by the learned Additional District Judge, Layyah who while accepting the appeal of the respondent reversed the judgment and decree dated 19.03.1996 of the learned Senior Civil Judge, Layyah whereby the respondent's suit was dismissed.
2. Briefly the facts of the case are that Muhammad Arshad (Respondent) instituted a suit against Nawab Din for specific performance of agreement dated 13.10.1988 (Exh.P2) to sell the suit land and it was stated in the plaint that Nawab Din, in connivance with some other persons through mis- representation obtained Rs, 118,000/- from the respondent for getting the land allotted in his favour in a Live Stock Scheme; that on coming to know the fraud committed by Nawab Din, the respondent firstly approached the Police at Layyah and then at Lahore for redressal of his grievance and on their refusal a constitutional petition i.e W.P. No, 3382/1988 (Exh.D3) was moved before this Court wherein vide order dated 04.09.1988 (Exh.P4) direction was issued to the Station House Officer (S.H.0) Police Station New Anarkali, Lahore to hear the respondent and thereafter to proceed with the matter strictly in accordance with law and in pursuance thereof F.I.R No, 232/1988 (Exh.D1) was registered under Sections 406/420/468/471 PPC; that consequent upon registration of above said FIR, Nawab Din contacted the respondent and admitted the liability by executing a pronote dated 24.09.1988 (Exh.P1) and receipt of pronote (Exh.P1/B) as a surety for the return of Rs, 118,000/- within a period of one week; that after the expiry of one week, the respondent demanded the money but Nawab Din did not return the amount and in lieu thereof offered the suit land and executed agreement to sell dated 13.10.1988 (Exh.P2) whereby Nawab Din had agreed to execute sale-deed in favour of the respondent in respect of suit land; and, that on the refusal of Nawab Din, the respondent instituted the suit for specific performance.
3. In response to summons, issued by the learned trial Court, Nawab Din appeared and submitted the contesting written statement stating therein that the respondent by taking undue benefit of his simplicity, old age and illiteracy took him to Lahore on the pretext of getting allotment of land but on reaching Lahore, he was handed over to Police which after torturing him firstly got executed pronote and subsequently on 08.10.1988 arrested him and during custody, the respondent in connivance with the Police got executed agreement to sell (Exh.P2) under coercion; and, that the agreement to sell (Exh.P2) is without consideration and bogus.
4. On the pleading of, the parties, the learned trial Court framed the following issues:-- ISSUES:
1. Whether the defendant validly executed a pronote in plaintiff's favour? OPP Whether the defendant entered into an agreement to sell to transfer the suit land to the plaintiff and an agreement to sell dated 13.10.1088 was validly executed in this regard? OPP.
3. Whether the plaintiff is entitled to the specific performance of the alleged agreement to sell or for an alternate decree of recovery of Rs, 118,000/-? OPP 3-A. Whether the plaintiff has no cause of action against the defendant? OPD
4. Relief?
5. The parties to the suit produced oral as well at documentary evidence in support of their respective claims. The respondent, Muhammad Arshad, appeared as PW-1, and got examined Bashir Ahmad as PW-2, Sakhi' Muhammad PW-3 and Muhammad As at as pw-4, In documentary evidence Muhammad Arshad/respondent produced pronote dated 24.09.1988 (Exh.P1), receipt of, pronote (Exh.P1/B), agreement to sell dated 13.10.1988 (Exh.P2) copy of register Haqdaran ZarMa,198849, (Exa.P3), copy of order dated 04.09.1988 passed in W.P. No, 3382/1988:(Exh.P4).
6. Conversely Nawab Din appeared before the learned trial court as DW-2 and produced Abdul Qayyum (Constable) as ,DW-1 and Ghulam Akbar as DW42.In documentary evidence Nawab Din tendered copy of FIR No, 232/1988 dated 08.10.1988 (Exh.D1), copy of W.P.No, 364/1988 (Exh.D2) copy- of W.P.No, 3382/1988 (Exh.D3), copy of order dated 04.09.1988 passed in W.P.No, 3382/1988 (Exh.D4)
And copy of order dated 14.03.1992 (Exh.D5).
7. The learned trial Court after recording evidence and granting opportunity of hearing to the parties, dismissed the suit with special compensatory cost of Rs, 25,000/- vide judgment and decree dated 19.03.1996. Feeling aggrieved, the respondent preferred an appeal before the learned Additional District Judge, Layyah. During the pendency of appeal, Nawab Din died and, therefore, his legal heirs i.e the present petitioners were impleaded. The learned Additional District Judge vide judgment and decree dated 02.11.1999 accepted the appeal and decreed the suit. Hence, this revision petition.
8. Learned counsel for the petitioners contends that the learned Additional District Judge while passing the impugned judgment and decree disregarded the mandatory provision of Order XLI, Rule 31 C.P.C. by not deciding all the controverted points/issues; that the judgment passed by the learned Additional District Judge suffers from mis-reading and non-reading of evidence; that writing of agreement to sell and pronote at hotel in Lahore reflects heavy doubt on the version of respondent; that there is no reference in the agreement to sell that Nawab Din had already received the consideration amount through pronote; and, that the evidence led by the respondent was contrary to the facts stated in the pleadings.
9. The learned counsel for the respondent submits that Nawab Din admitted the execution of agreement to sell and, therefore, the learned Additional District Judge has rightly decreed the suit.
In this regard he placed reliance on `Bashir Ahmad Vs. Muhammad Luqman' (1999 SCMR 378), Mst.
Baswa r Sultan Vs. Mst. Adeeba Alvi' (2002 SCMR 326) and "Mst. Gul Shahnaz Vs. Abdul Qayyum Soomro and another' (PLD 2002 Karachi 333).
10. I have heard learned counsel for the parties and perused the record with their able assistance.
11. The fate of Issue No, 3, that is, whether the plaintiff is entitled to specific performance of agreement to sell (Exh.P2) hinges upon the findings of Issues No 1 and 2. The learned Trial Court has decided Issues No, 1 and 2 against the plaintiff-respondent, Muhammad Arshad, and declared that the pronote (Exh.P1) and agreement to sell (Exh.P2) were got executed through fraud and torture.
These findings were reversed by the learned Additional District Judge and held that the plaintiff- respondent had got examined all the marginal witnesses of pronote (Exh.P1) and agreement to sell (Exh.P2) who had proved their execution. In order to understand the facts and circumstances under which the pronote dated 24.09.1988 (Exh.P1) and agreement to sell dated 13.10.1988 (Exh.P2) were executed, it is essential to make comparative examination of the documentary evidence and oral evidence. In this regard, the first documentary evidence is copy of Writ Petition No, 364/1988 (Exh.D2) which was moved by one Barkat Ali against: (i) S.H.O Police Station City, Layyah (ii) S.P.
Layyah (iii) Respondent (Muhammad Arshad); and (iv) Abdul Ghani wherein prayer was made that a direction be issued to the police for not causing any harassment. In this petition Barkat Ali stated that on 20.05.1986 the respondent, Muhammad Arshad, borrowed Rs, 250,000/- from him for expenses in relation to allotment for chak with a clear understanding that after allotment he would give two lots each consisting of 12(1/2) acres of land. It was further agreed that in case of no allotment, the respondent Muhammad Arshad, would pay back Rs, 275,000/- to Barkat Ali. It is stated in the petition that Muhammad Arshad neither got allotted the land in his name nor returned the amount and in this state of affair, Muhammad Arshad in connivance with the S.H.O.
Police Station City, Layyah got summoned Barkat Ali and one Muhammad Sharif, son-in-law of Nawab Din, and started exerting pressure to withdraw civil suit from the Civil Court, Lahore. It would be proper to reproduce Paragraphs No, 8 and 12 of the above said writ petition:-
8. The Respondent No, 3 with the connivance of Respondent No, 1 had got summoned, the petitioner and one Muhammad Sharif, a witness to the giving of Rs, 250,000/- in Police Station Layyah, on 06.03.1988, where the petitioner and Muhammad Sharif were abused and the petitioner was threatened to withdraw civil suit from Civil Court, Lahore. The petitioner refused, to do so and in consequence thereof the petitioner and Muhammad Sharif aforesaid were made to sit in the police station from 06.03.1988 to 11.03.1988.
12. That the petitioner and Muhammad Sharif were illegally confined for 6-7 days by Respondent No, 1 without registration of any case against the petitioner. In this way, the independence of the petitioner, provided to him under the Constitution of Islamic Republic of Pakistan has been jeopardized and injured. This act of Respondent No, 1 is quite illegal and clear-cut favour to Respondent No, 3".
Thereafter, Muhammad Arshad moved this Court through W.P. No, 3382/1988 (Exh.D3) wherein the prayer was made that S.H.0 be directed to register the case against the accused. Muhammad Arshad in this petition has stated the following facts: "That the petitioner who, is a. resident of District Layyah was known to one Barkat Ali son of Muhammad Hassan Caste Rajput resident of Ward No 8 Near Police Station Leih, Tehsil and District Layyah at present resident of 38-Nabha Road, Lahore. Moreover, one Muhammad Sharif son, of Khushi Muhammad caste Arain resident of Bet Diwan Tehsil and District Layyah was also known to the petitioner. Both of them approached the petitioner at Al-Mehran Hotel, New Anarkali, Lahore with the offer that the Punjab Government is granting a lease of land to the cultivators under the scheme known as 'Live Stock Scheme'. It was further given understanding by them that if petitioner pays them Rs, 118,000/- they can manage allotment of land equivalent to 90 lots which can be allocated among interested persons and no further expenses will be involved. The petitioner being a simple villager was thus defrauded having paid this amount to them in Al-Mehran Hotel, New Anarkali, Lahore in the presence of one Bashir Ahmad S/0 Noor Muhammad and Muhammad Boota S/O Ghulam Muhammad, The letter dated 25.07.1987 showing this payment is appended as Annexure-B. The petitioner collected this amount from various interested persons 22 .The above said writ petition (Exh.D3) was disposed of vide order dated 04.09.1988 (Exh.D4) with a direction to the S.H.O Police Station New Anarkali, Lahore to hear the respondent and thereafter proceed in the matter in accordance with law. In compliance with order dated 04.09.1988 (Exh.D4) an FIR No, 232/1988 (Exh.D-1) was registered under Sections 406/420/468/471 PPC wherein slight modification was made in the facts which were stated in the W.P. No, 3382/1988 (Exh.D3) and an attempt was made to rope in Nawab Din in the case. The cumulative reading of W.P. No, 364/1988 (Exh.D2), W.P.
No, 3382/1988 (Exh.D-3) and FIR No, 232/1988 (Exh.D1) shows that the respondent, Muhammad Arshad, neither paid sum of Rs, 118,000/- to Nawab Din nor Nawab Din promised the respondent to get the land allotted, in any government scheme. Contrary to above stated documentary evidence, the respondent, Muhammad Arshad, in his plaint and thereafter while appearing as PW-1 stated that Nawab Din had fraudulently obtained Rs, 118,000/- from him for the purposes of allotment of land in Live Stock Scheme. The statements made by Abdul Qayyum, Constable DW1) and Nawab Din (DW2) are in line with the facts stated in the over referred documentary evidence.
The juxtapositional reading of above stated documentary evidence and oral evidence leads to conclusion that (i) the assertions made in the plaint and statement made by the PWs are false; and (ii) that pronote dated 24.09.1988 (Ex.P1) and agreement to sell dated 13.10.1988 (Exh.P2) are without consideration and void as the respondent, Muhammad Arshad, got executed the above aid documents in connivance with Police through coercion and fraud.
12. It is an admitted fact that Nawab Din was an illiterate person and was 70/80 years old at the time of execution of alleged pronote (Exh.P1) and agreement to sell dated 13.10.1988 (Exh.P2). The law on the subject have become settled that in case of transaction with old age and illiterate persons and Parda Nasheen' ladies the burden to prove would always be on the beneficiary of the transaction. The beneficiary would not only be required to prove the genuineness of the transaction but also that the transaction was effected by such person with his free will and consent having independent advice; that there was no undue influence and coercion on such person. The entire evidence of the respondent if considered in this perspective then it would reveal that the same is not worthy of reliance. Nawab Din in his written statement categorically denied the execution of note (Exh.P1) and agreement to sell (Exh.P2). In these circumstances, the respondent was required to prove that Nawab Din executed the above said agreement with his free will and after having received independent advice. None of the witnesses who were produced by the respondent in support of his claim has stated a single word that "Nawab Din executed the pronote and agreement to sell after having received independent advice. On the contrary, as stated above, the respondent got executed the agreement to sell and pronote through coercion and mis- representation and in connivance with the local police. In these circumstances, neither. pronote (Exh.P1) nor the agreement to sell (Exh.P2) can be held validly' executed documents. Hence, the reliance of the learned counsel for the respondent on the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of `Bashir Ahmad Vs. Muhammad Luqman' (1999 SCMR 378), Taswa r Sultan Vs. Mst. Adeeba Alvi' (2002 SCMR 326) and the judgment of `Mst.Gul Shahnaz Vs. Abdul Qayyum Soomro and another' (PLD 2002 Karachi 333) are inapt as Nawab Din did not admit the execution of pronote (Exh.P1) and agreement to sell (Exh.P2).
13. The salient features of alleged agreement to sell dated 13.10.1988 (Exh.P2) are that: (a) Nawab Din was in need of money so as to meet his domestic requirement and, therefore, he agreed to sell the suit land to the respondent for a consideration of Rs, 118,000/- which he received from the respondent in presence of the witnesses namely Muhammad Sharif (PW-4)' and Bashir Ahmad (PW-2); (b) the possession of the suit land was handed over to the respondent; (c) Nawab Din was bound to execute the sale-deed in favour of the respondent up to 23.11.1988; (d) agreement to sell was written by Muhammad Aslam, Wasiqa Navees, Neela Gumbad, Lahore; (c) if Nawab Din refused to execute the sale-deed in favour of the respondent, then the respondent would be entitled to get double the amount of Rs, 118,000/-, All the witnesses, which were produced by the respondent in support of his claim have stated nothing with regard to the above said contents of the agreement to sell dated 13.10.1988 (Exh.P2). The proof of execution is with regard to the writing, signature of the parties as well as of the author but it has nothing to do with the proof of the contents of the document. In such like cases where execution of document is denied C by other party, then heavy burden lies on the beneficiary of the document, not only to prove the execution of the document but also its contents. ##TE# Besides, he is also required to prove that the such document was executed by the person with his free will, without any undue influence and coercion.
In the instant case, the respondent has failed to prove the contents of the document and the fact that Nawab Din executed the agreement to sell (Exh.P2) and pronote (Exh.P1)-with his free will.
14. The other startling aspect of the case is that the stamp paper for the agreement to sell (Exh.P2) was purchased in Lahore, agreement was also allegedly executed in Lahore whereas the parties, witnesses and the subject matter of the agreement have no nexus with Lahore. I also find it very strange that according to the respondent/plaintiff, he had paid the total consideration of Rs, 11,8,000/- but he did not obtain any conveyance deed. This is even more surprising that the agreement was allegedly executed on 13.10.1988 and the transfer of title was purportedly agreed to be effected on 23.11.1988. Learned counsel for the respondent failed to explain the reason behind these unusual circumstances: The respondent/plaintiff, for reasons noted above, has failed to prove Issue Nos, 1 and 2 and, therefore, he has no cause of Action against the petitioners/Nawab Din and, therefore, is not entitled to the specific performance of the agreement (Exh, P2). In this regard reference may be made to the case of 'Muhammad Aslam vs. Mu sarrat lqbal Akhtar' (2006 YLR 2446).
15.In view of above, the judgment and decree dated 2.11.1999 passed by the learned Additional District Judge, Layyah is set aside and resultantly the judgment and decree dated 19.3.1996 passed by the learned Senior Civil Judge, Layyah stands restored with no order as to cost.