' SADAQAT ALI KHAN, J.---The instant Civil Revision has been filed by the present petitioner Mst.
Ayesha Bibi against the judgment and decree dated 21.12.2000 passed by Additional District Judge, Bahawalpur according to which appeal of the plaintiffs/ respondents was accepted and their suit was decreed.
2. Brief facts are that Muhammad Nawaz predecessor in interest of respondents Nos.1 to 11 filed suit for specific performance of agreement to sell dated 16.05.1960 (Exh.P1) on 07.10.1989 against the petitioner and respondents Nos.12 to 19 with the assertion that Sardar Ahmad Owaisi father of the present petitioner and predecessor in interest of respondents Nos.1 to 11 had entered into an agreement to sell of the land measuring 1 Kanal from rectangle No.552/6 against Rs.500/- and after receiving the sale consideration Sardar Ahmad Owaisi delivered possession to Muhammad Nawaz plaintiff in 1960. It is further stated that late Sardar Ahmad Owaisi could not execute registered sale deed due to land reform litigation*hich were pending before various forums. It is stated in the plaint that Sardar Ahmad Owaisi died in 1977 and his inheritance mutation was not attested and defendant No.4 Mst. Abida Bibi sought the assistance of the court in this regard as a result of which inheritance Mutations Nos.5608 and 750 were attested in November, 1985. Mst.
Jamila Wd/O Sardar Ahmad Owaisi was also died. It is stated that Muhammad Nawaz plaintiff called upon the defendant to honour the agreement and execute registered sale deed in his favour but they declined to do so. Present petitioner Mst. Ayesha Bibi being defendant No.1 and Mst.
Najam-un-Nisa respondent No.12 being defendant No.2 contested the suit whereas other defendants were proceeded against exparte. However, respondent No.12/defendant Mst. Najam- un-Nisa conceded the claim of the plaintiff while present petitioner/defendant No.1 has contested the same and submitted written statement, raising preliminary objection by stating that suit is hopelessly time barred. The alleged agreement has no legal value and further stated that plaintiff is a tenant and suit land is not under the possession of the plaintiff on the basis of alleged agreement to sell.
3. Out of the divergent pleadings of the parties following issues were framed by the trial court:-- ISSUES
1. Whether the suit is time barred? OPD
2. Whether the agreement to sell has no legal value? OPD
3. Whether Sardar Ahmad Owaisi the predecessor in interest of the defendants had executed the agreement to sell in dispute? OPP
4. Whether the plaintiff is a tenant and not owner of the property in dispute? OPD
5. Whether the defendant is entitled to recover special costs under section 35-A of C.P.C.? OPD
6. Relief.
5. Plaintiff produced Muhammad Ramzan as PW1, Muhammad Shafi PW2, Ghulam Owais PW3, Imam Mujtaba PW4, Muhammad Nawaz Qureshi PW5, Muhammad Rafi-ud-Din Shah PW6, Babu Din PW7, Muhammad Amin PW8 and himself appeared as PW9 and produced in documentary evidence disputed agreement to sell as Exh.P1, decision of arbitration counsel for permission of second marriage dated 29.05.1975 Exh.P2, rent deed dated 26.01.1981 pertaining to Babu Din PW7 Exh.P3, another rent deed regarding shops Nos.7 and 8 dated 21.01.1988 Exh.P4, a third rent deed dated 09.08.1984 Exh.P5, 4th rent deed pertaining to Muhammad Amin PW8 Exh.P6, attested copy of the order of Additional Commissioner dated 09.08.1971 Exh.P3, attested copy of order of Additional Commissioner Bahawalpur dated 29.09.1971 Exh.P14, attested copy of order of Commissioner dated 19.05.1973 Exh.P15 and closed the evidence. On the other hand Haji Faqeerullah husband of the present petitioner being attorney of the petitioner appeared as DW1 and produced Abdul Ghaffar as DW2 who produced registered sale deed executed by Mian Sardar Ahmad in his favour dated 14.07.1979 as Exh.D2. After conclusion of the trial, learned trial court heard the arguments from both sides and thereafter dismissed the suit of the plaintiff predecessor of respondents Nos.1 to 11 who preferred an appeal before the District Judge, Bahawalpur which was entrusted to Additional District Judge, Bahawalpur and the same was accepted on 21.12.2000 in result of which suit of respondents Nos.1 to 11 was decreed. Hence, this civil revision.
6. Learned counsel for the petitioner submitted that judgment and decree dated 21.12.2000 passed by learned Additional District Judge, Bahawalpur is against law and facts on the file and is liable to be set aside. It is further submitted that plaintiff has failed to prove his case and suit was rightly dismissed by the learned trial court. It is further submitted that alleged agreement to sell Exh.P1 has not been proved by the plaintiff and it is a forged document. It is further submitted that alleged agreement to sell Exh.P1 is not executable document as Muhammad Nawaz plaintiff is not signatory of the document. It is further submitted that alleged agreement was allegedly executed on 16.05.1960 whereas suit was filed by the plaintiff Muhammad Nawaz on 07.10.1989 and same is hopelessly time barred. It is lastly submitted that this civil revision may be accepted and the judgment and decree dated 21.12.2000 passed by Additional District Judge, Bahawalpur may be set aside and judgment and decree dated 05.12.1995 of the trial court may be restored.
7. On the other hand learned counsel for the respondents (plaintiffs) submitted that judgment and decree dated 21.12.2000 of Additional District Judge Bahawalpur is quite legal in which every piece of evidence has been discussed and rightly the appeal of the plaintiffs was accepted and suit was decreed. It is further submitted that due to the land reform litigation suit could not be filed and this fact has been considered by the lower appellate court and suit of the plaintiff was rightly treated within time. It is further submitted that plaintiff has proved the document i.e. Agreement to sell Exh.P1 with solid evidence which was rightly considered by the lower appellate court by accepting the appeal of the plaintiffs/respondents Nos.1 to 11 and suit was decreed. It is further submitted that possession of the plaintiff on the suit property is admitted and lastly submitted that civil revision may be dismissed.
8. I have heard the learned counsel for the parties and perused the record.
9. Exh.P1 is an agreement to sell on the basis of which Muhammad Nawaz plaintiff predecessor in interest of respondents Nos.1 to 11 had filed suit for specific performance of land measuring 1 Kanals from rectangle No.552 situated within revenue estate of Mauza Khanqah allegedly executed by Sardar Ahmad Owaisi father of the present petitioner. To prove this document Muhammad Nawaz plaintiff produced Muhammad Ramzan as PW1 who stated that in the year 1960 he was attorney of Sardar Ahmad Owaisi and he was dealing the matter of sale and purchase of the land of Sardar Ahmad Owaisi being attorney and stated that 1 Kanal land in village Khanqah Sharif was sold to Muhammad Nawaz plaintiff against Rs.500/- and the document Exh.P1 in this regard was written by him and his signatures are Exh.P1/1 and A further stated that Sardar Ahmad Owaisi had signed before him which is Exh.P1/2 and stated that sale price Rs.500/- in his presence Sardar Ahmad had received. In cross examination he stated that his eye side is weak and he cannot read Exh.P1 and stated that price of the land was received by him and thereafter he paid the same to the owner. He admitted that he has no power of attorney of Sardar Ahmad Owaisi and further stated that he had returned the power of attorney after termination from the service. He further stated that he remained as clerk of an Advocate. I think that this witness is not believable as he neither proved himself as attorney of Sardar Ahmad Owaisi through oral evidence nor produced any document in this respect and he himself admitting on one hand that he had received the sale price of the suit land in the cross examination and on the other hand in same breath stated that he paid the same to the owner. It is not acceptable that in presence of original owner Sardar Ahmad Owaisi why Muhammad Nawaz paid sale price to this witness Muhammad Ramzan and further this witness has not been shown in agreement to sell Exh.P1 as attorney of Sardar Ahmad Owaisi and nowhere it is mentioned in Exh.P1 (agreement to sell) that Muhammad Ramzan firstly received the sale price and then handed over the same to Sardar Ahmad Owaisi. PW9 Haji Muhammad Nawaz himself appeared as a witness and stated that he had purchased land measuring 1 Kanal from Sardar Ahmad Owaisi against Rs .500/- that he had paid sale price to Ramzan Murishi PW1 who thereafter paid the same to Sardar Ahmad Owaisi in his presence. He further stated that the document Exh.P1 agreement to sell was written by Ramzan Munshi PW1 in his presence but it is very strange that Mian Ghulam Mustafa, Abdul Ghani and Allah Wasaya alleged marginal witnesses of document are mentioned in the document Exh.P1 who allegedly signed the same though who were not produced due to unavoidable circumstances but why the plaintiff could not sign the document Exh.P1. This thing itself creates doubt ,regarding preparation of agreement to sell Exh.P1. It is settled principle of law that unilateral agreement not signed by the vendee was not mutually enforceable and no effect could be granted. Reliance is placed on case titled "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" 2010 SCM R 334 in which case Supreme Court of Pakistan observed as under:-- "A perusal of the deed would indicate that it was signed by the appellant Mst. Gulshan Hamid alone and not by any of the three vendees. As evident from the contents of the deed, it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have succeeded because the vendees had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercised in favour of the plaintiffs. For ready reference section 22 (clause-I) is reproduced as follows:
22. Discretion as to decreeing specific performance. ---The jurisdiction to decree specific performance is discretionary, and, the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
' The following are cases in which the Court may properly exercise a discretion not to decree specific performance: I. Where the circumstances under which the contract is made are such to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part".
7. This Court in Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905(e) held that the illustrations, given in S.22 are a few instances where discretion should not be exercised in favour of specific performance. Rather, these, illustrations were held to be not exhaustive and the Courts were at liberty, in the circumstances of each case, to visualize any other circumstances as falling within the purview of 5.22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of section 22.
8. The evidence shows that the three plaintiffs belonging to Sialkot and having the blessings of local property dealers brought a lady-owner around in such a manner so as to take unfair advantage. They kept themselves immune from any future claim of the opposite party by not signing the deal at all. It is admitted in the evidence that the plaintiffs had tampered with the document. Iris admitted in the evidence that the document was executed by the lady at Islamabad. It is surprising to observe that it was attested on 18.6.1986 by an Oath Commissioner at Sialkot, in the absence of the deponent executant. The plaintiffs have, thereby, resorted to forgery as well. We are of the firm view that in the very construction of the agreement, it was not mutually enforceable and hence no decree of specific performance could be granted.
21. As a sequel to the above discussion, we hold that the unilateral agreement not signed by the respondents was not mutually enforceable; that, no decree could be granted because of the withdrawal of NOC; that, it were the respondents who malafidely exploited the situation, tampered with the deed, forged the same through an Oath Commissioner in the absence of executant, failed to perform within 15 days despite the positive knowledge of the NOC and above all were guilty of misrepresentation about the pay order which they had already withdrawn. Resultantly, the appeal is accepted, the impugned judgment dated 09.07.1999 of the learned High Court is set aside and that dated 31.07.1993 of the learned Trial Court is hereby restored."
10. In view of above in my view it does not constitute a valid contract because offer and acceptance when reduced into writing and one of the parties to the contract does not sign or thumb mark the same how it can be termed as a valid contract enforceable by the law. Moreover, alleged agreement to sell Exh.P1 is on a simple paper of some diary and it is not on a stamp paper.
It was to be impounded by the court when presented in evidence without stamp duty, therefore, it has a little evidentiary value. In this regard reliance is placed on case titled "Faqeer Bakhsh v. Khan Muhammad" 2013 M LD 955. PW2 is Muhammad Shafi. He simply stated that he has identified the signatures of his father Haji Allah Wasaya on the document Exh.P1 and he has not uttered a single word regarding agreement to sell. Likewise PW3 Ghulam Owais stated that plaintiff had purchased suit land from Sardar Ahmad Owaisi and he is not the witness of the transaction. So his evidence is discarded being hearsay evidence. PW4 Imam Bakhsh simply stated that plaintiff constructed some shops at the Lorry Adda of Khanqah Sharif. Muhammad Nawaz Qureshi PW5 stated that he has not brought record of Union Council Khanqah Sharif pertaining to year 1960 which was burnt in the year 1988. Muhammad Rafi-ud-Din PW6 simply stated that he has brought the record of union council pertaining to application titled "Nazar Muhammad v. Tasleeman Khatoon" for second marriage. Babu Din PW7 stated the same fact. So plaintiff could not prove the document Exh.P1 agreement to sell. PW9 Muhammad Nawaz plaintiff stated in Para No.3 of the plaint that due to land reform litigation Sardar Ahmad Owaisi could not execute registered sale deed in his favour and further stated in Para No.4 of the plaint that Sardar Ahmad Owaisi died in the year 1979.
Thereafter litigation on the basis of inheritance mutation regarding the disputed property was started by filing a suit in the civil court by Mst. Abida Bibi defendant No.4 and thereafter suit was filed. I think that this explanation is not sufficient bringing the suit within time as Muhammad Nawaz plaintiff while appearing as PW9 before the trial court explained the delay for filing the suit stated that Sardar Ahmad Owaisi went abroad and due to some family dispute he could not execute registered sale deed in his favour. So there is glaring contradiction between plaint and the statement of plaintiff PW9. Further in Para No.4 of the plaint PW9 himself admitted that suit between the legal heirs of Sardar Ahmad Owaisi was remained pending filed by Mst. Abida defendant No.4 pertaining to the inheritance dispute after the death of Sardar Ahmad Owaisi original owner of the suit property and thereafter that suit was decreed and civil court had determined the shares of the legal heirs of Sardar Ahmad Owaisi regarding the suit property. So plaintiff despite knowledge of said litigation remained mum for so many years and had not joined the litigation with his version that he had purchased some share measuring 1 Kanal from the land left by Sardar Ahmad Owaisi through Exh.P1 (agreement to sell) and he was entitled for the same. Further DW2 Haji Ghaffar produced registered sale deed Exh.D2 dated 14.07.1979 executed by Sardar Ahmad Owaisi according to which DW2 Hafiz Abdul Ghaffar had purchased land from Sardar Khan within the revenue state of Khanqah Sharif. So the version of the plaintiff became false as if agreement to sell Exh.P1 was a genuine document then there was no hurdle for execution of the sale deed by Sardar Ahmad Owaisi in favour of Muhammad Nawaz plaintiff within his life time. Exh.P1 was allegedly executed on 06.05.1960 whereas suit was filed on 07.10.1989 with the delay of about 28 years which is hopelessly time barred. The explanation given by the plaintiff Muhammad Nawaz PW9 in Para Nos.3 and 4 of the plaint as well as in a statement before the trial court is contradictory and not acceptable and rightly observed by the trial court that suit of the plaintiff is time barred. The judgment and decree of Additional District Judge Bahawalpur is a result of misreading, non- reading of evidence and is without reasoning and is based on no evidence. This court is of the opinion that the findings of first appellate court are liable to be set aside. Reliance is placed on case titled "Brig. (Rtd) Sher Afgan v. Mst. Shireen Tahir and 6 others" 2010 SCM R 786 in which Supreme Court of Pakistan observed at page 793 as under:- "This by now a well-settled principle of exercise of revisional jurisdiction under 115, C.P.C. That if a finding of first Court of Appeal is based on no evidence or is not denuded of its power to interfere with such a finding. This view was reiterated by this Court in Naziran Begum v. Khurshid Begum 1999 SCMR 1171 wherein at page 1178 it was held as follows:-- ' A finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under section 100 or 115, C.P.C. The learned Judge in Chambers, therefore, rightly reversed the findings of the first appellate Court insofar the execution of the document Exh.P/8 was concerned."
11. For the foregoing reasons this civil revision is allowed and the judgment and decree dated 21.12.2000 passed by the Additional District Judge, Bahawalpur is hereby set aside and judgment and decree dated 05.12.1995 passed by the trial court is restored. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.