' AMIN-UD-DIN KHAN, J.---Through this R.F.A. The appellant has challenged the judgment and decree dated 29-9-2007 passed by learned Senior Civil Judge, Dera Ghazi Khan whereby suit for specific performance filed by the respondents-plaintiffs was decreed.
2. Brief facts of the case are that respondents-plaintiffs on 16-8-2006 filed a suit for specific performance of agreement to sell dated 11-7-2006 with regard to the suit property, fully mentioned in the head-note of the plaint. Written statement was filed. The agreement on the basis of which suit was filed, was denied by the appellant- defendant. Appellant pleaded that he Exh.D.2, copy of Mutation No. 5037 Exh.D3, copy of Mutation No. 5043 Exh.D4, copy of Mutation No. 5094 Exh.D5, copy of Mutation No. 2755 Exh.D6 and copy of Mutation No. 2718 as Exh.D7. Learned trial Court after completion of the proceedings of the trial and after hearing the arguments of the learned counsel for the parties decreed the suit vide impugned judgment and decree dated 29-9-2007.
3. Learned counsel for the appellant has argued that no specific issue was framed with regard to agreement alleged by defendant and its cancellation thereafter which has been produced as Exh.D1 and further that defendant appellant moved two applications for comparison of the signatures and thumb-impressions upon Exh.D1 but the same have not been decided by the learned trial Court prior to the decision of the suit and further that the findings recorded by the learned trial Court are against the evidence available on the file, therefore, prayed that appeal be accepted and impugned judgment and decree passed by learned trial Court be set aside.
4. On the other hand, learned counsel for the respondents-plaintiffs has argued that the judgment and decree passed by the learned trial Court are absolutely in accordance with law and there is no infirmity in the judgment and decree. Further that they have fully proved the agreement to sell (Exh.P 1) as well as receipt (Exh.P2) and even the same have not been disputed when the witnesses of the plaintiffs-respondents were cross-examined. Learned counsel further argues that even if it is proved that Exh.D1 was entered between one of the plaintiffs and the defendant and subsequently same wasentered into the agreement to sell with regard to the suit property with plaintiff No. 1 only through written agreement dated 1-7-2006, which was subsequently cancelled with the consent of the parties to that agreement. Learned trial Court framed the following issues on 24-2-2007:--
(1) Whether the plaintiffs have no cause of action to file the suit? OPD
(2) Whether defendant is entitled to recover special costs, if so, then to what amount? OPD
(3) Whether the plaintiffs are entitled to the decree of specific performance of contract as prayed for in the plaint on the basis of agreement to sell dated 1-7-2006 after payment of Rs.35,49,375 and they have already paid Rs.5,00,000 to the defendant? OPP
(4) Relief.
' Parties were invited to produce their respective evidence. Plaintiffs produced Zafar Sajid, Wasika Navees as P.W.1, Sultan Ahmad one of the plaintiffs appeared as P.W.2, Muhammad Zubair as P.W.3 while Hafiz Faqeer Bakhsh was appeared as P.W.4 and they produced agreement to sell (Exh.P.1) and receipt of Rs.5,00,000 (Exh.P2), copy of jamabandi for the year 2003-2004 ' (Exh.P.3) as documentary evidence. On the other hand, defendant himself appeared as DW.1 and he also produced Syed Abid Ali as DW-2, Muhammad Tahir Hussain as DW-3 and Muhammad Asif Hussain as DW-4 and in documentary evidence he produced agreement and cancellation thereof (Exh.D.1), copy of Mutation No. 4008 cancelled, it will make no difference and will not effect the legality of Exh.P1 and therefore, Exh.D1 cannot be a hurdle in the way of passing a decree for specific performance in their favour.
5. We have heard learned counsel for the parties at full length and have also gone through the record as well as oral evidence with their able assistance.
6. So far as objection of the learned counsel for the appellant with regard to non-framing of issue is concerned, we have noticed that framing or non-framing of an issue is not fatal as a party pleads a case and keeps its pleadings in its mind while producing the evidence with regard to his pleadings. When a case has been pleaded by the defendant and he has led his evidence to prove his pleading, in this eventuality framing or non-framing of an issue with regard to entering into an agreement by the defendant and plaintiff No. 1 which is Exh. D 1 is immaterial. Furthermore, when it is the case of the defendant-appellant himself that the agreement was arrived at between defendant and plaintiff No. 1, which is Exh.D1 and subsequently same was cancelled by the mutual consent of parties to that agreement, we have noticed that if that agreement (Exh.D1) and its cancellation is proved or admitted, the effect of that which learned counsel for the appellant wants to draw is that, "how it is possible that after cancellation of an agreement after few days the defendant-appellant will enter into another agreement with regard to the sale of the property", we are afraid that this inference the learned counsel for the appellant presses and asks this Court to be drawn is also unreasonable and we cannot accede to the arguments advanced by the learned counsel for the appellant. We have questioned to the learned counsel that whether there is any substantial difference in the price of the land mentioned in the agreement which is alleged by the defendant-appellant himself which has been produced as Exh.D1 and in the agreement which has been pressed into service through the suit for specific performance which is Exh.P1, the answer is that the agreed price for transfer of the suit property in both the agreements is the same. In this view of the matter, in our view if the agreement Exh.D1 and cancellation thereof is proved, it will not make any difference with regard to proving and passing a decree on the basis of Exh.P 1. As the plaintiffs were under obligation to independently prove entering, into agreement between the parties, payment of earnest money and receipt thereof, therefore, the arguments advanced by learned counsel for the appellant-defendant are not sustainable under the law. In the circumstances of this case when the learned counsel for the appellant has not highlighted any prejudice caused to the appellant-defendant for non-framing of specific issue with regard to Exh.D.1, in this regard we can take light from "Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another" (1988 SCM R 4) and "Muhammad Akram alias Raja v. Muhammad Ishaque" (2004 SCM R 1130), therefore, the arguments of learned counsel to allege defect in the judgment of the learned trial Court with regard to non-framing of specific issue with regard to existence and cancellation of Exh.D 1 is not sustainable under the law.
7. So far as decision of applications filed by the appellant-defendant prior to the decision of the suit is concerned, we have noticed that application for comparison of signatures and thumb impression on Exh.D1 was moved on 5-9-2007 and the other application under Order XII, Rule 2 of C.P.C. To admit the agreement dated 1-7-2005 and its cancellation on 9-7-2005, which is Exh.D1 was also moved on 5-9-2007. We have gone through the interim order dated 8-9-2007 wherein the learned trial Court has observed that the plaintiffs have refused to accept the existence of the document, therefore, the defendant to prove the same, through his evidence and the case is for the evidence of the defendant. As both the applications were with regard to prove Exh.D.1, comparison of signatures and thumb impression upon Exh.D1 and its cancellation and when plaintiffs-respondents denied from that document, decision of both the applications at the time of final decision of the suit is not contrary to law as we have observed that even if the document Exh.D.1 is proved or admitted it cannot be a hurdle in the way of the plaintiffs to prove their agreement to sell, which is Exh.P.1. In this view of the matter, the defect alleged by the learned counsel for the appellant with regard to decision of the applications along with the main suit is not sustainable under the law. We have also noticed that appellant himself filed an appeal against the confirmation of the stay order by the learned trial Court in favour of the plaintiffs in the shape of F.A.O. No. 51 of 2007 before this Court. The order of grant of stay was modified and the plaintiffs were directed to deposit the remaining amount of contract amounting to Rs.35,49,375 within one month from the date of the order and the learned trial Court was also directed to decide the suit till 30-9-2007 and it was also directed that if it has to undertake day to day proceedings, the same be carried out. Learned counsel for or, the respondents has argued that it was the defendant- appellant to sought instructions from this' Court to decide the case within a specific date and he was delaying the matter himself by filing the applications which were filed in order to delay the proceedings of the trial as the full price was paid by the plaintiffs-respondents under the orders of this Court.
8. So far as grant of decree by the learned trial Court in the suit is concerned we have noticed that plaintiffs-respondents fully proved the execution of agreement to sell (Exh.P.1) and receipt of earnest money which has been produced as Exh.P.2 through reliable confidence-inspiring evidence while plaintiffs produced the scribe and two marginal witnesses and one of the plaintiffs also appeared as P.W.2. There is no defect in the evidence produced by the plaintiffs-respondents rather learned D counsel for the defendant failed to cross-examine upon the material facts narrated in the examination-in-chief by the witnesses of the plaintiffs. It is settled principle of law that a witness which has not been cross-examined on material points, his statement to that extent is presumed to have been admitted by the other side, therefore, receipt Exh.P2 is a document which remained unchallenged, therefore, findings of learned trial Court are in accordance with the evidence available on the file.
9. In this view of the matter, we see no illegality or infirmity in the judgment and decree passed by the learned trial Court. Resultantly, this appeal being without any substance stands dismissed with cost throughout.