' MUHAMMAD KHALID MEHMOOD KHAN, J.---The respondents filed a suit for specific performance of an agreement and possession against the appellant asserting that the appellant entered into an agreement to sell with the respondents on 13-9-2005 regarding property measuring 92 kanals, 2 marlas detailed in plaint against consideration of Rs.37,03,350. The respondents received Rs.7.50, 000 as earnest money and balance amount of Rs.29, 53,350 was payable at the time of execution of sale-deed. It is further asserted that the father of appellant has gifted the property to appellant vide mutation of Gift No.294 attested on 25-7-1997. After the death of father of respondents Wazir Ali, one Ghulam Muhammad and Muhammad Yousaf filed an application for correction of Revenue Record claiming that Khasra No.671 mentioned in the gift mutation is in fact Khasra No.767. The Revenue Authorities allowed the application for correction and mutation of correction No.392 was attested on 16-8-2001 but wrongly the said mutation was attested in favour of Wazir. Ali. The appellant contested the suit, denied the execution of agreement to sell, receipt of earnest money and set up a defence that respondents are working for gain in Saudia Arabia and their father extracted Rs.1, 00,000 from the appellant for sending him to abroad and in that process photo copy of his identity card and previous passport came into possession of the father of the respondents.
Learned trial Court out of divergent pleadings of the parties framed the following issues:--
(1) Whether the defendant made an agreement to sell with the plaintiffs in respect of suit property measuring 92 Kanals 2 Marlas in lieu of consideration Rs. 37,03,350 and received Rs.7,50,000 as earnest money in the presence of witnesses vide agreement to sell dated 10-3-2004 and it was also agreed that remaining amount shall be paid till 13-9-2004 at the time of execution of sale deed, if so, with what effect? OPP
(2) If issue No.1 is proved in affirmative, whether the plaintiff is entitled to get the decree as prayed for? OPP
(3) Whether the plaintiff has no cause of action and locus standi to institute this suit? OPD
(4) Whether the defendant has not made an agreement to sell with the plaintiffs, alleged agreement to sell is based on fraud, against law and facts and ineffective upon the rights of defendant? OPD
(5) Whether the plaintiff has instituted the suit just to vex twice and the defendant and in case of dismissal, defendant is entitled to receive the special costs under section 35-A, C.P.C., if so to what extent? OPD
(6) Relief.
2. Both the parties adduced their respective evidence and learned trial Court after hearing the parties decreed the suit through the impugner judgment and decree dated 20-4-2010.
3. Learned counsel for the appellant submits that the impugned judgment and decree is based on misreading and non-reading of record. It is a proven fact that appellant never entered into alleged agreement to sell with the respondents nor received any earnest money. The statement of witnesses are full of contradiction, the respondents have failed to establish on record from where they brought the amount of Rs.7,50,000. The argument of learned counsel for appellant is that appellant has denied the execution of agreement and as such it was the duty of the respondents to prove the agreement but the respondents have failed to prove the execution of agreement to sell. Lastly adds that the land measuring 33 Kanals was not the property of appellant at the time of alleged agreement and the said property was mortgaged with the Bank and the appellant become the owner of said property on 18-3-2004.
4. Learned counsel for the respondents supports the impugned judgment and decree and submits that execution of agreement to sell is fully proved. The appellant was owner of land measuring 92 kanals, 2 marlas at the time when he entered into agreement to sell. Learned counsel submits that it -was the duty of the appellant to prove that he ever paid a sum of Rs.1,00,000 to the father of respondents and not executed the argument to sell.
5. We have heard the learned counsel for the parties and examined the record.
6. The agreement to sell Exh.P1 shows that Khursheed Ali, Muhammad Boota and Muhammad Malik are its marginal witnesses. Khursheed Ali appeared as P.W.2, he deposed that the appellant executed the agreement in his presence and received an amount of Rs.7, 50,000 in his presence.
The agreement was scribed by Din Muhammad. The agreement was written at the Dera of Malik Muhammad Khalid Advocate in the presence of Muhammad Malik Lambardar and Muhammad Boota Pattidar. The other marginal witness Muhammad Malik Lambardar appeared as P. W.4, he specifically deposed that the appellant executed agreement to sell in his presence and received part payment of Rs.7, 50,000. The agreement was written in the office of Malik Muhammad Khalid Advocate. The third witness Muhammad Boota appeared as P.W.5. He also deposed that appellant executed agreement to sell in his presence and received Rs.7,50,000. One of the respondents appeared as P.W.1, he specifically deposed that the appellant was the owner of land measuring 92 kanals, 2 marlas, he agreed to sell the property against consideration of Rs.37,03,350 and received Rs.7,50,000 as earnest money. Balance amount was payable on or before 13-4-2004.
7. After the deposition of marginal witnesses of the agreement to sell the onus to prove that the appellant has not executed the agreement to sell and he paid Rs.1,00,000 to the father of respondents for sending him abroad shifted upon the appellant.
8. The appellant appeared as DW-1, he deposed that he has not entered into agreement to sell Exh.P1 with the respondents, nor he signed the said agreement, he rather paid Rs.1,00,000 to the respondents along with the passport and photocopy of identity card as the respondents were doing business in Saudia Arabia. After expiry of 6/7 months he insisted to respondents that why they are not sending him abroad, the respondents then informed that he has agreed to sell his land to respondents vide alleged agreement to sell. He has not purchased the stamp paper of Exh.P1, he never appeared before Abbas Manj Advocate, but he has not deposed in whose presence he paid Rs.1,00,000 and handed over the passport and photo copy of identity card to the respondents. He produced only DW-2 who deposed that in his presence six years ago the appellant paid Rs.1,00,000 and handed over passport and photo copy of identity card to the respondents and that he Shahid Maseeh, Abdul Ghafoor and Muhammad Boota the respondents and their father were present. The appellant handed over the amount to the father of respondents but in cross-examination he admits that the negotiation of sending the appellant abroad was not made before him. He admits that respondents are not in the business of sending the people abroad. He is also not aware in which country the respondent was working. The appellant's witness has not mentioned the name of three persons Shahid Maseeh, Abdul Ghafoor and Muhammad Boota in whose presence an amount of Rs.1,00,000 was handed over to the father of respondents, hence it was incumbent upon the appellant to produce these three persons but he has failed to produce the witnesses named in the statement of DW-2. DW-2 further admits that he is not aware when the appellant entered into the bargain for going abroad with the respondents. After the presence and deposition of marginal witnesses, the respondents can file an application for comparison of his signatures or thumb impressions to handwriting expert but he failed to do so.
9. The above said discussion will show that execution of agreement is proved along with receipt of Rs.7,50,000 as earnest money, but the claim of respondents that appellant was the owner of land measuring 92 kanals, 2 marlas and he agreed to sell the land to the respondents has not been established. Exh.5 will show that out of land measuring 92 kanals, 2 marlas the land measuring 33 kanals, 10 marlas was in the name of Wazir Ali, the father of appellant and Mutation No.392 was attested in favour of Wazir Ali on 16-8-2001. The appellant become the owner of land measuring 92 kanals, 2 marlas on 18-3-2004 when the mortgage charge against the land was redeemed and Mutation No.466 was attested in favour of Zulfiqar Ali. Exh.P6 also shows that land measuring 33 kanals,. 10 marlas was the property of Wazir Ali. It is not available on record when Wazir Ali died and who were his legal heirs and when the mutation of inheritance was attested. From the above facts it is established fact on record that appellant was the owner of land measuring 58 kanals, 6 marlas and he can only sell his property and not the property of Wazir Ali. This is not the case of respondent that Wazir Ali has authorized the appellant to sell his property as well but the case of appellant is that Wazir Ali gifted his property to Zulfiqar Ali vide Mutation No.294 attested on 25-7- 1997. Exh.P8 is the Mutation No.294 attested on 25-7-1997 shows that Wazir Ali gifted his land to the appellant but the said mutation was superceded by Mutation No.392 attested on 16-8-2001 (Ex.P5) which shows that Wazir Ali is the owner of land measuring 33 kanals, 10 marlas out of total land measuring 92 kanals, 2 marlas.
10. The above said discussion will show that appellant was not the owner of land measuring 92 kanals, 2 marlas hence Exh.P1 is only operative against the appellant to the extent of land measuring 58. Kanals, 6 marlas. The respondents are not claiming that in case it is proved that appellant was not the owner of land measuring 92 kanals, 2 marlas, he will be liable to reduce the price equal to his share, hence, the respondents are not entitled for any reduction of agreed price.
As the agreement to sell has been proved, the receipt of an amount of Rs.7,50,000 is also proved and as such the appellant is liable to execute the decree in favour of respondents to the extent of 58 kanals, 6 marlas, detailed in the plaint subject to payment of balance amount as ordered by learned Civil Court..
11. In view of the above the appeal is partly allowed by reducing the land of appellant to the extent of 58 kanals, 6 marlas. The other terms of the impugned decree will remain the same.