' QAISER RASHID KHAN, J.---Aggrieved of the judgment and decree dated 31.3.2011 of the learned Civil Judge-II Mardan whereby the suit of the appellants was dismissed, the instant appeal has been preferred.
2. Relevant facts leading to the instant appeal are that the appellants/ plaintiffs filed a suit before the learned Civil Judge-II, Mardan for specific performance, declaration, possession, recovery and perpetual injunction alleging that they have purchased the suit land measuring 16 kanals situated at Moza Chak Mardan bearing Khasra No, 1578, Khata No, 50/61 as per Jamabandi for the year 2002-03 through sale deeds dated 06.07.2006 and 8.8.2006 at the rate of Rs,22500/- per marla and they have accordingly paid an amount of Rs,2200000/- to the respondent/defendant in the presence of two marginal witnesses and deposited the remaining amount in UBL Nowshera Cantt for the respondent/ defendant by fulfilling the terms and conditions of the alleged sale deeds as the suit property was already pledged with the said bank; that by fulfilling the terms and conditions of the alleged sale deeds dated 6.7.2006 and 8.8.2006 the appellants/ plaintiffs have become owners in possession of the suit property and the respondent/ defendant has no concern with the same; that since the appellants/plaintiffs have fulfilled the terms and conditions of the sale deeds, therefore, the respondent/ defendant is bound to transfer the suit land through mutation or registered deed in favour of the appellants/plaintiffs; that as an alternate, the appellants/plaintiffs are entitled to recover the amount so paid by them to the respondent/defendant with 18% interest and that the respondent/defendant was privately asked time and again to admit the rights of the appellants/plaintiffs over the suit property but to no avail, hence the suit.
3. On being summoned, the respondent/defendant contested the suit by filing written statement, from the divergent pleadings of the parties 12 issues were framed including the relief and after recording pro and contra evidence, the learned trial court dismissed the suit of the appellants vide judgment and decree dated 31.3.2011, hence this appeal.
4.
5. #TBS
6. Obtaining the opinion of the handwriting expert and vehemently pleaded that the same be allowed so as to reach to a correct conclusion of the controversy involved in the matter. He also argued that time is not the essence of the agreement to sell dated 6.7.2006 between the parties but the learned trial Court has wrongly made the same as the basis for non-suiting the appellants/plaintiffs. In support of his arguments, the learned counsel for the appellants/plaintiffs relied on "Abdul Hamid v. Abbas' Bhai-Abdul Hussain Sodawaterwala" (PLD 1962 SC 1), Seth Essabhoy v. Saboor Ahmad" (PLD 1972 SC 39), "Mohabbat v. Asadullah Khan and others" (PLD 1989 SC 112), "Mst. Malkani v. Mst. Bakhat Begum and 13 others" (2004 SCM R 1591), "Rehmat All Ismailia v.
Khalid Mehmood" (2004 SCM R 361), "Sher Khan and others v. Ghulam Qadir and others" (2006 SCM R 659), "Muhammad Hussain and others v. Dr. Zahoor Alam" (2010 SCM R 286), "Syed Sharif ul Hassan through L.Rs, v. Hafiz Muhammad Amin and others" (2012 SCM R 1258), and "Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs, and others" (2015 SCM R 1081).
7. The learned counsel for the respondent/defendant on his turn supported the impugned judgment and decree of the learned trial Court on almost the same grounds as detailed therein.
8. Arguments heard and available record perused.
9. As the record unfolds, the appellants/plaintiffs through their suit for specific performance, declaration, possession, recovery and perpetual injunction lay claim over the suit property measuring 16 kanals, detailed in the plaint
10. #TBE
11. The learned counsel for the appellants/plaintiffs contended that the learned trial judge has seriously erred under the law by dismissing the suit of the appellants/plaintiffs. He contended that whereas the agreement to sell dated 6.7.2006 was duly admitted by the respondent/defendant and proved during the trial as well, therefore, there was left no reason to discard the sale deed dated 8.8.2006 which is in fact an off shoot of the agreement to sell dated 6.7.2006. He argued that the sale deed dated 8.8.2006 was duly proved before the learned trial Court as not only the stamp vendor, petition writer, Notary Public but the two marginal witnesses of the deed also turned up before the learned trial Court in support of the said deed. He contended that the respondent/ defendant was unable to dislodge the stance of the appellants and their witnesses during the course of trial wherein they stated that the respondent/ defendant duly received a sum of Rs, 2 million through a cheque in his name at the UBL Cantt Branch, Nowshera and moreover sufficient evidence was brought forth by the appellants/ plaintiffs in respect of the deposit of Rs, 52 lac at the said Bank so as to liquidate the loan liabilities of the respondent/defendant and to redeem the suit property mortgaged with the bank. He contended that where the respondent/ defendant showed his willingness to send his signature on the deed dated 8.8.2006 to the handwriting expert for his opinion, then the learned trial Court should have exercised its judicial power to proceed accordingly, but the same was not done to the de trimmest of the appellants/plaintiffs. He lastly contended that the appellants/ plaintiffs have moved an application for summoning of manager UBL Cantt. Branch Nowshera along with the record pertaining to two cheques as an additional evidence in order to ascertain the veracity of the assertions of the appellants/ plaintiffs regarding.
The payment of rupees two million received by the respondent/ defendant from the appellants/plaintiffs and also another application for sending the signatures of the respondent/defendant for on the basis of sale deeds (Bainamajat) dated 6.7.2006 and 8.8.2006 whereby the respondent/defendant allegedly received the entire sale consideration as per the terms and conditions of the alleged sale deeds and he is, therefore, under a legal obligation to transfer the same through a registered deed or mutation in favour of the appellants/ plaintiffs.
7. The appellant/plaintiffs assert in the plaint to have made payment of Rs,22,00,000/- at the rate of Rs,22500/- per marla as per the said deeds to the respondent/defendant in the presence of witnesses and by way of completion of agreement between the parties, to have deposited the balance outstanding amount at UBL Nowshera Cantt: Branch as the said property was mortgaged with the Bank. As an alternate, the appellants/plaintiffs prayed for possession and recovery of the alleged paid amount at the rate of Rs, 22500/- per marla together with 18% interest with effect from payment till the recovery.
8. The respondent/defendant on his turn in the written statement duly admitted the sale agreement dated 6.7.2006 between the parties in respect of the suit land measuring 16 kanals at the rate of Rs,22,500/- per marla whereby the appellants/plaintiffs paid an amount of Rs,2,00,000/- to him as earnest money and also made commitment in the deed to pay the remaining amount of Rs, 72,00,000/-within one month or else the deed dated 6.7.2006 would become null and void and the amount of Rs, 2,00,000/- would stand forfeited and the appellants/plaintiffs would be liable to vacate the suit land. He however, strongly refuted the execution of any alleged sale deed dated 8.8.2006 by terming the same to be fake, bogus and fraudulent whereby the appellants have made a vain attempt to fake his signature.
9. The antagonistic pleadings of the parties led to the framing of the following issues by the learned trial Court:--
1. Whether the plaintiffs have got cause of action?
Whether the plaintiffs are estopped to sue due to their own conduct?
3. Whether the plaintiffs are owners of the suit property measuring 16 'Canals bearing Khasra No, 1578 Khata No, 50/61 as per Jamabandi for the year 2002-03 situated in Moza Chak Mardan through alleged sale deeds dated 06.07.06 and 08.08.06?
4. Whether the alleged sale deed executed between the parties on 06.07.2006 and an amount of Rs,2,00,000/- was paid by the plaintiffs to the defendant at the time of scribing of sale deed dated 06.07.2006 in presence of two marginal witnesses?
5. Whether as per alleged sale deed dated 06.07.06, Rs, 2,00,000/- shall be forfeited and the same shall be null and void in case of failure to pay remaining entire amount till 06.08.06 (i,e, within one month) to the defendant?
6. Whether the plaintiffs will also be bound to hand over the possession of the suit property to the defendant in case of failure to pay remaining entire amount to the defendant within one month i,e, 06.08.06 as per alleged sale deed dated 06.07.06?
7. Whether another alleged sale deed executed between the parties on 08.08.06 and the same is authentic one?
8. Whether Rs, 20,00,000/- paid by the plaintiffs to the defendant as per alleged sale deed dated 08.08.06?
9. Whether the remaining amount has been deposited by the plaintiffs in UBL Nowshera Cantt for the defendant?
10. Whether the plaintiffs are entitled to recover paid amount as marla rate was fixed as Rs, 22500/- with 18% interest in case of non-granting of relief, Alif, Bay, Jeem and Dal?
11. Whether the improvement has been made by the plaintiffs and for which they are entitled to recover the same from defendant?
12. Relief.
10. To substantiate their claim, the appellants/plaintiffs examined eleven witnesses in all.
' Usman Gul, Petition Writer, District Courts Mardan and scribe of the agreement to sell dated 6.7.2006 (Ex: PW-1/1) between the parties, confirmed his signature on the deed and entry at serial No, 160 of his Register as x: PW-1/2. During cross-examination he admitted as correct "that the terms and conditions of the Ex:PW-1/1 were read over to the panics. It is correct that the parties were agreed that per Marla rate was fixed as Rs, 22500/, total land sold was 16 Kanals. Out of the entire amount Rs, 2,00;000/- was paid to the defendant with the condition that if the plaintiffs failed to pay the remaining amount upto 6.8.2006, the agreement to sell will be considered cancelled. The paid amount of 2 lacs will be forfeited in favour of the defendant and furthermore plaintiffs will be bound to hand over the possession of the suit land to the defendant."
' Umer Khan, marginal witness of the agreement to sell dated 6.7.2006 recorded his statement as PW-9. He confirmed the execution of the deed, Rs,22500/- as the per marla price of the suit land and payment of Rs, 2 lac to the respondent/defendant as well the signatures/thumb impressions of the parties and the witnesses on the deed.
' Muhammad Rasool, another marginal witness of the deed dated 6.7.2006 (Ex:PW-1/1) as PW-10 also confirmed the receipt of Rs,2,00,000/- cash by the respondent/defendant in terms of the deed.
During cross-examination he admitted the entire contents of the deed, Ex:PW-1/1, to be correct.
' Bacha Said Khan Advocate/Notary Public District Courts, Mardan turned up before the learned trial Court as PW-6 and stated to have signed the agreement to sell dated 6.7.2006 between the parties and to have assigned S. No, 1241 dated 8.7.2006 to the same in his register of Notary Public, copy of which is Ex:PW-6/1.
' Thus the deed dated 6.7.2006 with its contents stood admitted by the parties and proved during evidence.
11. Since it is the alleged disputed sale deed dated 08..08.2006 which is the bone of contention between the parties, therefore, it is its execution and proof during the trial which is to be 'closely scrutinized in the light of evidence so produced. In this respect Muhammad Iqbal, Stamp Vendor, District Courts Mardan appeared as PW-2 who stated to have issued stamp paper bearing No, 4736 (Ex:PW-2/1) and that the same bore his signature and of the respondent/defendant and that the entry is available in his register at serial No, 4736 dated 08.08.2006 (Ex:PW-2/2). Such statement of PW-2 was seriously objected to by the defendant/respondent terming the stamp paper to be fake, forged and manipulated on which the signature of the respondent was forged and that the same was not issued at the instance of the respondent. It would be worthwhile to reproduce the relevant portion of his cross-examination as below:- "It is correct that on serial No, 4736 there is over writing upon the date which is already exhibited as Ex:PW-2/1. Volunteered that the said has properly been signed by me. It is correct that initially in Ex:PW-2/1 month was written as 3 (March) but later on through over writing it was made 8 ( August). Volunteered that it was clerical mistake, the same has properly been corrected and signed by me and the same has been corrected as 8-8-2006"
' To other questions he replied that "It is correct that the over writing is not signed by me like my signature to the end of the stamp paper. Volunteered that my initial along with my stamp is available upon the correction at the back of stamp paper. Today I see the original register at SI.
No, 4736 in the Court. It is correct that there is also over writing on month. Volunteered that the same has been properly signed by me after due correction. Again stated that that the correction has been made by my initial. Initially, month was written on issue date 8-3-2006 but later on the same has been corrected as 8-8-2006. It is correct that on the said date, in all issued i,e, from Sl. Nos. 4731 to 4636, months are over written in the available/ produced record".
' To another question he replied that "It is correct that except the stamp paper in question, there is no signature or my initial over overwriting any where else in the register produced by me in the court today. It is correct that no payment has been made in my presence".
' Petition Writer of the alleged sale deed dated 8.8.2006, namely, Inayat ur Rehman recorded his statement as PW-3. He stated to have scribed the same at the instance of the respondent, read over the same to the parties and after getting the signatures of the parties, entered it in his register at Serial No, 640 (Ex:PW3/1). As against his examination in chief wherein he stated to have scribed the deed at the instance of the respondent/defendant, in his cross-examination, he admitted as correct that except plaintiff No,1, Haji Bakhtiar, the remaining plaintiffs had not approached him for scribing of any sale deed in respect of the suit property.
' The statement of Abdul Hameed Khan, Notary Public, District Courts Mardan, who appeared as PW-5 is also quite significant in the present case. He stated to have entered the agreement to sell dated 8.8.2006 in his register at Serial No, 174, copy of which is Ex:PW-5/1 and copy of the original with seal of his Notary Public as Ex:PW-5/2. In cross-examination, he spilled the beans and stated in clear terms as to how Muhammad Iqbal, Stamp Vendor (PW-2) played a pivotal role in the entire arrangement set up by the plaintiffs/ appellants and particularly appellant. No,1 namely Haji Bakhtiar. His cross-examination is reproduced as below:-- "The said entry made in my register is of do Iqbal Stamp Vendor Distt: Courts, Mardan.
Agreement to sell Ex:PW5/2 has been brought to me by one Iqbal stamp vendor Distt: Courts Mardan. I have not mentioned the NIC No, of Iqbal mentioned above in my register. It is correct that the said Iqbal has no concern with agreement to sell. All the signatures have been taken by petition writer from vendee, vendor, marginal witnesses. I have not recorded the statement of the parties. The witness volunteer that I have asked regarding the correctness of said deed and after admission to be correct one I have entered the same in my register. I have not taken any signature either of the vendor or vendee in my register. The witness volunteer that we not obtain the signature of the parties in the register concern. The deed was produced to me by one Iqbal. I have not identified the vendee nor the vendor when Iqbal produced the deed to me."
12. After such statement of PW-5, it is abundantly clear that it was' Muhammad Iqbal, Stamp Vendor (PW-2) who ensured right from the issuance of the stamp paper allegedly in the name of the respondent/ defendant that the alleged sale deed dated 8.8.2006 got through safely. In this respect, he left no stone unturned by changing the month from March (3) to August (8) and made corresponding changes through over writing in his Stamp Vendor Register as well. He thereafter singly approached Abdul Hameed Khan, Notary Public to get the deed attested in the absence of the parties who were otherwise entering such an important and big deal of monetary transaction as well as the subsequent transfer of the suit property. The same prima facie suggests that the entire exercise was conducted by the appellants/plaintiffs with the active collusion of the stamp vendor and the petition writer in a rather hush-hush manner so as to rob off the respondent/defendant of his property. The follow up statements of the marginal witnesses of the sale deed dated 8.8.2006 as well as the appellant/ plaintiff No,1, Haji Bakhtiar would further augment the observations and of course the findings of this Court.
13. Ghaffar Khan, marginal witness of deed dated 08.08.2006 appeared as PW-7. He stated that the respondent was paid Rs,20,00,000/- in respect of the suit property and Rs, 5,00,000/- for sale of Weighing Scale (Kanta) through UBL Nowshera Branch where after the deed was scribed and that the respondent/defendant had received the amount in his presence from the Bank. He further stated that a sum of Rs, 50/52 lac was deposited by the appellants at UBL Nowshera Branch on behalf of the defendant/respondent as the suit property was mortgaged with the Bank and the amount so deposited was with a view to redeem the property. During cross- examination, he admitted that no amount was deposited in the name of the respondent/defendant in UBL Nowshera Branch. He produced the Bank statement of the appellant/plaintiff No,1 as PW-7/D-1. He admitted as correct that in the Iqrar Nama/deed dated 8.8.2006, there is no mention of the alleged cheques. He voluntarily stated that the defendant/ respondent had privately received the amount and that the appellants used to pay monthly rent to the defendant/respondent in respect of the suit property prior to the deed dated 8.8.2006 but thereafter no rent has been paid to him. Strangely enough, he on the one hand posed himself to be so close to the appellants that he even placed on file photocopies of the alleged two cheques (though the same were not exhibited) and that the payment was made to the respondent/defendant in his presence and further that a sum of Rs,50/52 lac was deposited in UBL Nowshera Cantt: Branch so as to redeem the mortgaged property but when it came to agreement to sell dated 6.7.2008, he feigned total ignorance about the same. To another question in the follow up cross-examination, he stated that the amount was received by the respondent/ defendant himself where after he executed the sale deed but then expressed his want of knowledge as to who had signed the cheques at the time of receiving of the money. At another point he voluntarily stated that the an account was opened by the appellants for the respondent/ defendant.
14. Syed Kamal Shah, another marginal witness of the deed dated 8.8.2006 recorded his statement as PW-8. He too, stated that payment of Rs,20,00,000/- was made to the respondent through Bank cheque. In the cross-examination, he stated to have visited the Bank along with the respondent/defendant, that the cheque was signed by Mushtaq and that the amount was also received by Mushtaq but voluntarily stated that the respondent /defendant and Mushtaq jointly received the money and that Mushtaq was the driver of the respondent/ defendant. It does not appeal to reason as to how the alleged cheques issued in the name of the respondent/defendant would be encashed by his driver and that too, when as per statement of the PW-8, the respondent/ defendant was readily available at the Bank. The same is also against the Banking practice as the beneficiary in whose name the cheque is issued is to en cash the same himself or may deposit the cheque in his account but strangely enough, in this particular case one Mushtaq, the alleged driver of the respondent/defendant in total departure from the standing Banking instructions and practice had allegedly not only signed the cheque but also received the amount. The said Mushtaq figures at serial No,8 of the list of witnesses of the appellants/plaintiffs and by all counts, his testimony was most crucial to lend credence to the version of the appellants/ plaintiffs, but somehow no effort was made to produce him before the learned trial Court.
15. Haji Bakhtiar appellant/plaintiff No,1 appeared and recorded his statement as PW-11 for himself as well as special attorney for other plaintiffs. In his examination-in-chief, he gave a detailed account of the circumstances which resulted in the execution of the agreement to sell dated 6.7.2006, the payment of Rs,2,00,000/- to the respondent/defendant as earnest. Money at the time of scribing of the said deed, his visit to the respondent/ defendant on 3.8.2006 for transfer of the disputed land, the respondent/defendant's reply regarding the suit land to have been pledged with the Bank, the deposit of Rs,52,00,000/-by the plaintiffs with the Bank for the redemption of the suit property and the scribing of the deed dated 8.8.2006. While making statement, he went over and above the pleadings as some of the facts which are not mentioned in the plaint were alleged for the first time in his examination-in-chief. At this stage, it would more apt to reproduce the relevant portions of his cross-examination as under:-- "I cannot produce any official of the Bank through which I have paid the amount mentioned in the cheque to the defendant. The witness volunteered that the cheque was issued at the name of the defendant and the original cheque is kept by the bank and is not in the possession of the plaintiffs."
"It is correct that I have not cited Bank Manager or cashier or other official of the said bank in order to prove the payment to the defendant."
"It is mentioned in my statement correctly that the entire amount of the suit property is paid by him to the defendant. The witness volunteered that as the property was pledged with the Bank worth of Rs, 52,00,000/- that is why the defendant was entitled to Rs, 22,00,000/- only because the rest of the money must to be paid for the redemption of the property from the bank. Rs, fifty two lac are lying in my account in the UBL Nowshera. It is correct that at present there is no account in my name in UBL, Nowshera nor any amount is lying in it. The witness volunteered that the bank official asked me at that specific time to deposit and open an account at my name in the said bank and to deposit the amount that property in question be redeemed for the defendant to be transferred later on to the plaintiffs. The witnesses further volunteered that when the defendant closed the transaction and refused the same I closed my account in the aforementioned bank."
16. From the above statement, the truth has come out from the mouth of the appellant that the alleged Rs, 52 lac were never deposited in the loan account of the respondent/defendant for the purpose of redemption of the property as ad nauseam played up by the appellants all along right from the plaint and during evidence through the statements of the PWs in a rather mechanical manner. Moreover, once the respondent/defendant denied to have received the amount of Rs, 20 lakh through cheque and the alleged deposit of Rs, 52 lac on his behalf in the Bank, then indeed a heavy responsibility was cast on the appellants/plaintiffs to have produced the concerned bank manager or officer in support of their version, but in a rather lukewarm manner only the bank statement A of the appellant Haji Bakhtiar was exhibited which has not helped the appellants' case in any manner. Neither the concerned bank manager/officer was mentioned in their calendar of witnesses nor at the tail end of the case any application was submitted before the learned trial Court to summon them along with the alleged record. Presently, at the appellate stage the appellants/plaintiffs have moved two applications, one (C.M. No, 299 of 2011) for summoning the Manager UBL Cantt: Branch, Nowshera along with the record of the cheques as an additional evidence and the other application (C.M. No, 245/2011) for sending the signatures of the respondent/defendant on the disputed sale deed dated 8.8.2006 to the handwriting expert for his opinion. Both the applications are prima facie an afterthought just to buy more time and delay the matter as much as possible to the detriment of the interests of the respondent/defendant. Even if the request of the appellants/plaintiffs for summoning of the manager along with the record is acceded to, still it is one Mushtaq who allegedly received the amount as his signature appears at the back of the photocopies of the cheques and that mysterious Mushtaq was gleefully abandoned by the appellants/plaintiffs at the time of recording their evidence. Thus the summoning of the bank manager/officer cannot serve any useful purpose and would be a mere exercise in futility after 10 long years of the alleged encashment of the cheques by Mushtaq. So far as sending the signature of the respondent/defendant for obtaining the opinion of hand writing expert is concerned, strangely enough, the plaintiffs/appellants rely on a two liner reply of the respondent/defendant to a suggestion made during his cross-examination whereby he stated to have no objection if at all his signatures on the deeds dated 6.7.2006 and 8.8.2006 and written statement were sent for expert opinion. The said offer was not made by the respondent/defendant on his own but rather to a suggestion made by the appellants/plaintiffs. The appellants/ plaintiffs in a rather buoyant mood did not deem it proper to take that suggestion to its logical conclusion by making any request before the learned trial Court at that point of time. Having failed to make out any case in their favour before the learned trial Court, the instant two applications are nothing more than a ruse. Thus such requests of the appellants/plaintiffs through the said applications neither merit the consideration nor the attention of this Court at this appellate stage. Reliance is placed on "Hafeez Ahmad v. Sain and others" (2003 SCM R 1185), "Muhammad Yousaf v. Mst.
Maqsooda Anjum and others" (2004 SCM R 1049), "Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others" (2006 SCM R 193), "Mustafa Kamal and others v. Daud Khan and others"
(2009 SCM R 221) and "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 SC 151).
17. The respondent/defendant on his turn recorded his sole statement as DW-1. He stated that the parties entered into an agreement to sell on 6.7.2006 in respect of the sale of the disputed property at the rate of Rs,22,500/- per marla and whereas the appellants/plaintiffs paid a sum of Rs,2,00,000/-, a commitment was made regarding the payment of the outstanding amount within a month i,e, by 5.8.2006 and that the sale agreement also provided that in case the remaining/balance amount was not made within one month, then the agreement to sell dated 6.7.2006 would be rendered null and void and the amount of Rs,2,00,000/-would stand forfeited. As such, there is no escape for the appellants/ plaintiffs from the plain reading of the agreement to sell dated 6.7.2006. It has been held by the august Apex Court in a case titled "Liaqat Ali Khan and others v. Falak Sher and others" reported in PLD 2014 SC 506 that where stipulations regarding payment of balance sale consideration and the consequences of its default were categorically incorporated in the agreement and accepted by both the parties with their free will then parties have made their intention clear that time was the essence of the agreement. In the present case, however, the appellants/plaintiffs failed to abide by the stipulation regarding, the payment of the balance sale consideration within the specified time.
' Simultaneously, the respondent/ defendant in his statement termed the deed dated 8.8.2006 to be fake and forged. During cross-examination, he stood his ground and disowned the execution of the deed dated 8.8.2006. He admitted the mortgage of the suit property with UBL Nowshera Cantt Branch in lieu of a loan facility of Rs, 52,00,000/-, availed by him which soared upto Rs, 68,00,000/- after accrual of interest and that he had paid off the outstanding amount to the Bank in the year 2010 through installments. He brushed aside the suggestion that he and his driver Mushtaq encashed the cheque on 8.8.2006. Despite the lengthy exercise of cross-examination conducted by the appellants nothing useful either in respect of the execution of the alleged sale deed dated 8.8.2006 or for that matter the alleged payment of Rs, 2,00,000/- or the other hefty amount of Rs, 52,00,000/-allegedly deposited by the appellants in UBL Nowshera Cantt Branch in order to pay off the liabilities of the defendant/respondent so as to redeem the suit property has either been proved or brought on the record.
18. The upshot of the above discussion is that the appellants/plaintiffs badly failed to prove the execution of the sale deed dated 8.8.2006, as well as the alleged payment of Rs,20,00,000/- to the respondent/defendant through a cheque and also the alleged deposit of Rs, 52 lac in the Bank in order to redeem the suit property mortgaged with the Bank as the onus fell squarely on their shoulders. The alleged sale deed dated 8.8.2006 vehemently pleaded and trumpeted by the appellants/ plaintiffs despite their best efforts through Muhammad Iqbal Stamp Vendor (PW-2), petition writer (PW-1) and the "more loyal than the king" set of marginal witnesses proved to be a non-starter and could not meet the desired criteria of proof as per Qanun-e-Shahadat Order, 1984.
However, the agreement to sell dated 6.7.2006 not only stood admitted but abundantly proved during the course of evidence which in turn provided for the payment of the entire amount to the respondent/defendant within one month i,e, by 5.8.2006 or else the nonpayment would not only render the very agreement to be null and void but also the forfeiture of the earnest payment of Rs,2,00,000/- in favour of the respondent/ defendant.
19. The learned trial Court has duly attended to the evidence of the parties in its true perspective and has reached to a correct conclusion through its well-reasoned judgment which does not suffer from any mis-reading or non-reading of evidence so as to call for any interference of this court through the present appeal.
20. Resultantly, this appeal being meritless fails and is dismissed accordingly along with C.M. No, 245 of 2011 and C.M. No, 299 of 2011. No order as to costs.