Ch. Muhammad Iqbal, J.- Through this RFA the appellants challenged the judgment and decree dated 26.10.2011 passed by the learned Civil Judge Toba Tek Singh, whereby the suit for possession through specific performance of agreement to sell dated 18.09.2006 regarding the suit properties filed by respondent No.1/plaintiff was decreed.
2. Brief facts of the case are that respondent No. 1/plaintiff Ibrar Ali filed a suit for possession through specific performance of agreement to sell dated 18.09.2006 (Exh. P.I) against the appellants and respondent No.2 regarding the following properties:- a) Property Khata No.1/1 measuring 2-K situated at Millat Town Peer Mahal, District Toba Tek Singh. c) Khata No.13 measuring 33-Marlas 1-Sqft situated at Chak No.319 GB, Tehsil & District Toba Tek Singh. d) House No.P-67 measuring 12-M, Shadman Road Mai-di-Jhugi Faisalabad.
(here-in-after to be called as suit property) against a consideration of Rs,1,10,00,000/- (Rupees one crore and ten lacs only) which was allegedly executed by late father of the present appellants and respondent No.2 in favour of respondent No.1. Respondent No.1/plaintiff in his suit stated that he had paid the whole consideration and obtained the possession of the suit property and after the death of Muhammad Saleem (predecessor-in-interest of the present appellants and respondent No.2), he requested the appellants and respondent No.2, being the legal heirs of said deceased, to execute the sale deed in his favour but they refused. Thereafter on 19.09.2008 respondent No. 1 filed a suit for possession through specific performance of the agreement to sell. Respondent No. 2, being the real wife of respondent No.1/plaintiff, filed conceding written statement, whereas, the present appellants/defendants No.1 to 3 contested the suit through attorney and stated that the alleged agreement to sell dated 18.09.2006 has been prepared by respondent No. 1 fraudulently which even otherwise is a forged and fabricated document and no consideration was ever received by their predecessor-in-interest. The learned trial Court from the divergent pleadings of the parties framed the following issues:- "(1). Whether the plaintiff had purchased the suit property from deceased Mohammad Saleem predecessor of defendants for the sale consideration of Rs.1 Corer and had paid all the consideration and executed agreement to sell dated 18.09.2006 ?OPP (2). If the above issue is proved then whether the plaintiff is entitled to get decree for specific performance as prayed for ?OPP (3). Whether the plaintiff has no cause of action and locus standi to file the suit ? OPD.
(4). Whether the plaintiff is estopped by his words and conduct to file the suit ? OPD.
(5). Whether the suit is not maintainable in its present form? OPD.
(6). Whether the impugned agreement to sell dated 18.06.2006 is false, frivolous, antedated and prepared after the death of Mohammad Saleem deceased ?OPD.
(7). Whether the suit has been filed just to harass the defendants and the defendants are entitled to get special cost U/S 35-A of CPC ? OPD.
(8). Relief."
3. After recording the evidence of both the parties, the learned trial Court decreed the suit of respondent No. 1 vide impugned judgment and decree dated 26.10.2011. Hence, this R.F.A.
4. The learned counsel for the appellants submits that the impugned judgment and decree dated 26.10.2011 is against the law and facts of the case; that respondent No.1 did not produce agreement to sell and the alleged affidavit of the deceased in his evidence, rather the agreement to sell was produced by PW-6 Muhammad Nadeem (Stamp Vendor); that the alleged agreement to sell is a bogus one; that neither the predecessor-in-interest of the appellants sold the properties mentioned in the alleged agreement to sell nor received any consideration in this respect; that the alleged agreement to sell was fraudulently prepared by respondent No.1 which is a forged document coupled that respondent No.1/plaintiff also prepared an affidavit of the deceased in order to usurp the valuable properties of the deceased being son-in-law and also tried to deprive the present appellants from their inherited properties; that respondent No. 1 did not prove the execution of the alleged agreement to sell, mode of payment, as such, the judgment and decree 26.10.2011 passed by the learned trial Court is illegal, based on surmises, conjectures and supposition, therefore, the same may kindly be set-aside.
5. Conversely, the learned counsel appearing on behalf of the respondents firstly raised objection that the appeal has been filed by an unauthorized person because the deed of general power of attorney executed in favour of Faqeer Ahmad by Zahid Hussain and Khalid Hussain, appellants No. 2 and 3 was got cancelled on 08.03.2010; that the judgment and decree passed by the learned trial Court is according to the record and facts of the case; that respondent No. 1 has duly proved the execution of agreement to sell and payment of consideration by producing three marginal witnesses of the agreement to sell, as such, the judgment and decree passed by the learned trial Court dated 26.10.2011 is not required for any interference.
6. We have given our anxious consideration to the arguments of the learned counsel for the parties and have examined the record, appended herewith.
7. Before proceeding further in the matter, we would like to dispose of C.M No.2-C/2014 whereby respondent No.1 has raised an objection regarding the competency of Faqeer Muhammad, attorney of the appellants, to file the instant appeal. It has been argued by the learned counsel for respondent No.1 that the instant RFA was filed by Faqeer Muhammad without any authority as the power of attorney in his favour was revoked by appellants No.2 and 3, vide registered revocation deed No.374 dated 09.03.2010. The appellants filed reply to this C.M. and stated that Faqeer Muhammad is attorney of the appellants as per specific power of attorney dated 25.03.2010 which was duly attested by the concerned Embassy. If the arguments of the learned counsel for respondent No.1/plaintiff are considered that the general power of attorney was revoked on 09.03.2010 then the judgment and decree dated 26.10.2011 is not sustainable, as the suit was contested through the said attorney. The learned trial Court was bound to issue notice to the appellants to pursue the case. It is an admitted fact that at Page-261 of the file of learned trial Court, a special attorney in favour of Faqeer Muhammad dated 03.02.2009 was executed by Khalid Hussain, Muhammad Shahid sons of Muhammad Saleem. Furthermore, the learned counsel for the appellants placed on record a special power of attorney dated 25.03.2010 executed by Khalid Hussain, Shahid Hussain and Zahid Hussain in favour of Faqeer Muhammad, which is duly attested by the concerned Embassy. In these circumstances, the appeal was correctly filed by Faqeer Muhammad being attorney of the appellants. Consequently, the C.M No.2-C/2014 is without force and the same is dismissed.
8. There is no dispute that the present appellants and respondent No.2 are real brothers and sister inter-se whereas respondent No.1 is husband of respondent No.2 and the properties mentioned in paragraph No.2 of the judgment were owned by deceased Muhammad Saleem - father of the appellants and respondent No.2.
The stance of respondent No.1/plaintiff is that he purchased the above mentioned properties from Muhammad Saleem (his father-in-law) vide agreement to sell dated 18.09.2006 against total consideration of Rs.1,10,00,000/- which was paid by him to his father-in-law and it was settled between them that as and when respondent No.1 required from Muhammad Saleem to execute the registered sale deed in his favour, he would do the needful but later on, he (Muhammad Saleem) went to England where he died. Thereafter, he time & again requested the appellants as well as respondent No.2 to get execute registered sale deed in his favour but they did not adhere his request.
Whereas the stance of the appellants is that the alleged agreement to sell is a forged document which was prepared by respondent No.1 fraudulently in order to usurp their valuable inherited properties.
9. Issue No.1 is basic/important issue between the parties and the findings rendered by the learned trial Court on the same require reconsideration by this Court.
Respondent No.1/plaintiff appeared as PW-1 and stated in his examination-in-chief as follows:- "that Muhammad Saleem deceased was his father-in-law and was owner of suit land; that I purchased the properties from him against consideration of Rs.1,10,00,000/- which was paid by me and in this respect an agreement and affidavit was written on 18.09.2006; that I am working as a Property Dealer and it was settled that whenever I would like, the properties would be transferred in his name by his father-in-law or to anybody else, then he (his father-in-law) will execute the sale deed in his favour but my father-in-law went to England and expired, thereafter on 29.01.2008, after his death, I requested to the legal heirs for the execution of the agreement to sell: firstly they agreed but later on they refused to honour the said agreement then I filed the suit"
But there is clear contradiction between his said examination-in-chief and cross-examination and the relevant portion from his cross-examination is reproduced as under:- {{URDU TEXT}} In the plaint as well as in examination-in-chief, respondent No.1/plaintiff did not disclose the date of transaction of sale, payment of consideration, names of the witnesses. It is important to mention here that according to cross-examination of PW-1 the payment was made in his house and agreement was also executed in his house why his wife, who was also party in the suit, has not been produced as witness when she was present in the house. Admittedly, the plaintiff is son-in- law of the deceased but he did not disclose this relation in his plaint as well as in the agreement to sell. Respondent No.1/plaintiff produced 8 witnesses to prove his case but the statements of the witnesses are contradictory with each other.
Noor Zaman/PW-2 stated that "I know Ibrar Ali and Muhammad Saleem. I am the witness of the alleged agreement to sell Ex.P.1. I affixed my thumb impression on Ex.P.1. The payment was paid in my presence. Muhammad Shafi and Qasim Ali were also present there. Muhammad Saleem as well as other witnesses affixed their thumb impressions and signatures on Ex.P.1 in my presence.
The agreement to sell was executed on 18.09.2006, thereafter Ch. Muhammad Saleem went to England". PW-2 has not mentioned the mode of payment and also has not supported the version of the plaintiff/PW-1. According to the version of the plaintiff agreement to sell was written on 18.09.2006 whereas Muhammad Saleem has expired on 29.01.2008. The plaintiff did not file any suit during his lifetime. PW-2 admitted that he has no knowledge about the specific value of each property. In cross-examination PW-2 stated as under:- {{URDU TEXT}} Shafi Muhammad appeared as PW-3 and stated as under:- "that Muhammad Saleem sold his property against Rs.1,10,00,000/- to the plaintiff and in this respect an agreement to sell was executed in which detail of property was mentioned. I got affixed thumb impression and signature on Ex.P.1. On the first day Rs.15,00,000/- were given then Rs.75,00,000/- were given and then Rs.20,00,000/- were given in the presence of mine and other witnesses. Muhammad Saleem also signed the agreement to sell and affixed the thumb impression on it."
10. PW-3 did not tell the names of the witnesses in whose presence the payment was given and has not described the properties so mentioned in the agreement to sell. PW-3 stated the details of alleged payment but the same is not mentioned in the plaint. In cross-examination PW-3 stated as under:- {{URDU TEXT}} Qasim Ali appeared as PW-4 and got recorded his statement to the following effect:- "that Ch. Muhammad Saleem sold his properties against a sum of Rs.1,10,00,000/- to the plaintiff, which was paid in cash in my presence".
It is interesting that in the plaint respondent No.1/plaintiff did not even mention a single name of the witness and also did not mention the mode of payment.
11. Muhammad Nadeem Sahir, Stamp Vendor, appeared as PW-6 and stated that "I issued the stamp paper Ex.P.1 and on the back of the said stamp paper I affixed my stamp and then made signature. I issued the stamp paper for the affidavit (Ex.P.3)".
12. PW-6 admitted in the cross-examination that he did not know about Muhammad Saleem personally. Ibrar identified Muhammad Saleem himself.
13. Dr. Amir Ali Hassan Khan, Director, Forensic Science Laboratory appeared as PW-8 and stated that the signatures of Muhammad Saleem on agreement to sell and affidavit are different and in our opinion both the signatures are not inline.
14. On the other hand, Faqeer Ahmad son of Haji Noor Muhammad appeared as DW-1, being the general attorney of the present appellants, and stated that "I am maternal uncle of the present appellants. Muhammad Saleem died on 02.01.2008 in England. He was owner of the suit properties Muhammad Saleem deceased did not sell any property to the plaintiff. The plaintiff prepared a forged agreement to sell with the connivance of his real wife (present respondent No. 2). The plaintiff did not file any suit during life time of Muhammad Saleem and also has not served any notice to him for execution of the sale deed. The deceased Muhammad Saleem did not even tell to him regarding the selling of the properties to the plaintiff during his life time because he was a big landlord person. After his death succession certificate was obtained from the competent court of jurisdiction. The suit is false. It is based on fraud.
15. DW-2. Muhammad Javed appeared and supported the version of DW-1 in the following effect:- "I know Muhammad Saleem deceased. He was living in England. He had properties in Millat Town, Allama Iqbal Town, Peer Mahal and Faisalabad. Muhammad Saleem deceased when came in Pakistan he used to live with me, whereas Ibrar Ali was living at Pir Mahal. Muhammad Saleem has not sold the properties, he used to purchase the properties. He never told to him regarding the selling of the properties. The plaintiff and his wife prepared a forged stamp paper. Muhammad Saleem deceased during his life time never sold the land to the plaintiff and never received any amount i.e. Rs.1,10,00,000/-. The agreement to sell is a forged document. The suit is false."
16. After perusing the record it reveals that PW-2 and PW-3 remained the employees of respondent No.1/plaintiff, as such, their evidence is not trustworthy being interested witnesses. Further the statements of PWs are beyond scope of pleadings and it cannot be considered under the law in view of the dictum laid down in the cases of Muhammad Nawaz alias Nawaza and others Versus Member Judicial Board of Revenue and others (2014 SCM R 914), Messrs Essa Engineering Company Pvt. Limited and another Versus Pakistan Telecommunication Company Limited and another (2014 SCM R 922) and Muhammad Iqbal Versus Mehboob Alam (2015 SCM R 21).
The plaintiff neither himself produced any agreement to sell nor any affidavit of the said deceased inasmuch as he did not produce any document to prove the payment of Rs.1,10,00,000/- in his evidence. The case of the respondent No.1/plaintiff is that all the payments regarding the suit land were paid to Muhammad Saleem deceased but in this respect no written receipt has been placed on record by him and he has also not submitted that in what shape either in cash or through cheques the amount was paid and also has not mentioned the names of the witnesses, in whose presence the amount was paid.
In view of the circumstances, the plaintiff/respondent No.1 has failed to prove issue No.1 and the same is decided against him.
Moreover, there is no signature of respondent No.1 on the alleged agreement to sell dated 18.09.2006 (Ex.P.1), which proves that respondent No.1 has not accepted the same, as such, the agreement to sell is an unilateral which could not be enforced. Reliance is placed on the case reported as Mst. Barkat Bibi and others VS Muhammad Rafique and others (1990 SCM R 28) and the relevant portion therefrom is reproduced as under: - "A perusal of the above "iqrarnama" shows that there is no reference made therein specifically to the exact consideration for the agreement. Moreover, we observed that it is unilateral offer made by Muhammad Din to reconvey the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondents for no one on the side of the respondents has signed this "iqrarnama" in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement. Now it is only an "agreement", as the term is understood in law, which can be enforced by a suit for specific performance. Accordingly, it is only if the so-called "iqrarnama" qualified as an agreement would it have the effect of creating a legal relationship between the parties so as to give rise to jural, as opposed to moral, obligations and then only would a suit for specific performance be maintainable on its basis. The so-called "iqrarnama", dated 24.7.1953, on close examination, however, does not qualify to be an "agreement". Hence, a suit to specifically enforce it was not competent"
Reliance is also placed on the cases reported as Mst. Gulshan Hamid VS Abdula Rehman and others (2010 SCM R 334), Munir Ahmad Vs. Muhammad Ramzan Sheikh and another (2014 YLR 191) and Sher Shah Vs. Muhammad Suleman and 2 others (2013 YLR 1017).
Further on 03.02.2010 the evidence was recorded by the learned Civil Judge namely Mr. Hassan Ahmad, whereas the document was exhibited by Mrs. Adeela Altaf Alyana, Civil Judge Ist Class, Toba Tek Singh. Respondent No.1 in his evidence has neither produced the agreement to sell nor the alleged affidavit of Muhammad Saleem. The alleged agreement to sell and affidavit was produced as Ex.P-1 & Ex.P-3 by PW-6 Muhammad Nadeem (Stamp Vendor), which creates serious doubt that in what capacity the Stamp Vendor retained the alleged agreement to sell & affidavit in his custody and produced himself in the Court, whereas the stamp vendor admitted in his cross examination that he did not even know Muhammad Saleem. In these circumstances, the learned trial Court has committed illegality and irregularity while passing the impugned judgment and decree coupled with the fact that the property so mentioned in Serial No. 3 of agreement to sell is measuring 33-Marlas 1-sq.ft., whereas Ex.P-4 shows that the land is measuring 31-Marlas and 1- sq.ft., as such, while passing the impugned judgment and decree the learned trial Court granted the excess land. Respondent No. 1 did not prove the mode of consideration/payment as alleged.
Further, the agreement to sell is unilateral agreement.
17. In view of above, we hold that the unilateral agreement, not signed by respondent No.1, is not mutually enforceable. Resultantly, this R.F.A. is allowed and the judgment and decree dated 26.10.2011 passed by the learned Civil Judge is hereby set-aside and suit of respondent No. 1 is hereby dismissed.