By filing Regular Second Appeal, the appellants have assailed the concurrent judgments dated 28.01.2010 and 01.12.2010 passed by learned Civil Judge 1st Class, Multan and learned Additional District Judge, Multan respectively, by which suit of the appellants for specific performance of contract as well as appeal were dismissed.
2. Brief facts culminating into this regular second appeal and necessary for its fair adjudication are that Mir Dad Khan predecessor in interest/father of respondents was owner of 25 Kanal 16 Marla land situated in Mouza Masood Pur Tibba, Tehsil and District Multan. The case of the present appellants is that said Mir Dad Khan (deceased) vide agreement to sell dated 12.11.1992 (Exh.P1) agreed to sell 7 Kanal land in their favour [i.e Abdul Rasheed, Ghulam Farid (since dead being represented by legal heirs), Allah Ditta and Allah Wasaya], against consideration of Rs,322,000/- out of which Rs,265,000/- were paid in cash, possession was delivered in favour of the appellants and date for completion of agreement to sell was fixed as 19.12.1995. But immediately thereafter Mir Dad Khan vide registered `Tamlik Nama' dated 15.12.1992 (Exh.D2) transferred his entire holding in favour of his one son Muhammad Akhtar-Respondent No, 1 and the same was also incorporated in the revenue record. The present appellants prayed for a decree for specific performance of contract in their favour. This suit has been resisted by Respondents No, 1 and 2 by filing separate written statements. Respondent No, 1/Muhammad Akhtar specifically alleged that Mir Dad Khan was illustrate. On various documents executed in his life time he has affixed his thumb mark, whereas the agreement to sell purportedly bearing signature of vendor was forged, fictitious and result of collusion of appellants with his real brother/Respondent No,
2. He further claimed that his father had not even purchased the stamp paper for execution of agreement to sell and it was purportedly purchased through Respondent No,
2. Whereas Respondent No, 2 also denied the avernments of plaint. However, he conceded possession of the appellants over the suit property.
3. To resolve controversy in between the parties, learned Civil Judge framed the following issues:-- ISSUES
1. Whether agreement to sell has been fabricated with collusion of Defendant No, 2 with the plaintiff? OPD-1 2 Whether the suit is time barred? OPD-2
3. Whether the suit has not been properly valued for the 'purpose of Court fee and jurisdiction?
OPD-2
4. Whether the suit is based on malafide? OPD
5. Whether Mir Dad Khan propositus of the defendants agreed to sell the suit land to the plaintiff against Rs,3,22,000/- received Rs,2,65,000/- as money, delivered its possession to the plaintiffs and executed agreement to sell dated 12.11.1992? OPP
6. Whether the plaintiffs are entitled to get the decree for Specific performance of agreement on the basis of averments contained in the plaint, if so, on what terms and conditions? OPP
7. Whether the suit is not maintainable as per preliminary objection No, 2 of the written statement?
OPD-2
8. Whether the stamp paper was not purchased by the father of the Defendant No, 1 and same is forged and fictitious? OFD-1
9. Whether the plaintiffs are liable to be proceeded u/S. 476 Cr.P.C.? OPD-1
10. Whether the suit is not maintainable in its present form? OPD-1
11. Whether the Defendant No, 1 is entitled to special costs, if so, then to what amount? OPD-1
12. Relief.
After recording evidence of the parties, hearing arguments, the suit of appellants was dismissed vide judgment and decree dated 28.01.2010 passed by learned Civil Judge, Multan. The present appellants assailed the same before the learned first appellate Court but vide judgment and decree dated 01.12.2010 their appeal was also dismissed. Feeling dissatisfied with the impugned judgments, the appellants have assailed the same by filing regular second appeal, maintaining that the same are based on misreading and non-reading of evidence, as such the same are not sustainable.
4. Arguments heard. Record perused.
The main point for determination before this Court is whether Mir Dad Khan has agreed to sell the suit property in favour of appellants vide agreement to sell (Exh.P1) for Rs,322,000/- and out of sale consideration Rs,265,000/- were paid to him at the time of execution of agreement to sell.
Muhammad Ali-PW1, son of Muhammad Afzal deed writer, deposed that agreement to sell (Exh.P1) was scribed by his father. During cross-examination he conceded that he has not brought "the register of deed writer" in which the agreement to sell was incorporated. As stated at bar, this witness on subsequent dates could not produce the register despite specific direction by the learned Civil Judge, Multan. Karim Haider/PW-2 (property dealer) and Abdul Ghaffar/PW3 brother in law (P..) of Abdul Rashid, one of the appellants, are marginal witnesses of agreement to sell, who supported appellants' case regarding valid execution of agreement to sell (Exh.P1) and payment of earnest money. PW-4 Abdul Rashid, One of the appellants, support&d the case incorporated in the plaint. During cross-examination he made the following statement regarding attestation of Exh.P1 and identity of the vendor and Muhammad Akhtar-Respondent No, 2:- {{URDU TEXT}} Atif Jaffari, D.S.P. Incharge Finger Print Bureau, Punjab Lahore-PW5 proved his report Exh.P5 according to which on Exh.P1 Respondent No, 2 has affixed his signature.
Whereas Respondent No, 2 as DW-1 deposed that agreement to sell by his father in favour of appellants was not executed in his presence. He however claimed that his father being illetrate used to affix his thumb mark and he has never signed any document. During cross-examination he deposed that he has not purchased stamp paper for execution of agreement to sell and he had not identified Mir Dad Khan at that time. DW-2 Abdul Latif, nephew of Mir Dad Khan and DW-3 Yameen have deposed that Mir Dad Khan being illetrate had never signed any document and he used to affix his thumb mark. DW-4 Muhammad Akhtar/Respondent No, 1 deposed that his father on 17.12.1992 has transferred 25 Kanal 12 Marla land in his favour by executing registered `Tamleek Nama'. Mir Dad Khan has not executed any agreement to sell in favour of appellants and the same is forged and fictitious. He further deposed that Mir Dad Khan being illetrate was not in a position to sign any deed. During cross-examination he deposed that the appellants being members of `Qabza Group' have forcibly occupied the suit land after institution of suit. DW-5-Javed Abbas Khan/son of deed writer has deposed that on 12.12.1995 Respondent No, 2 has executed general power of attorney deed in favour of Abdul Ghaffar-PW3, marginal witness of agreement to sell and on the same date Respondent No, 2 has also entered into an agreement to sell with the appellants.
6. Perusal of record transpires that the stamp paper for agreement to sell (Exh.P1) was purportedly purchased by Mir Dad Khan through his son/Respondent No, 2, from one Atta-ur-Rehman on 12.11.1992. From attested copy of register of said stamp vendor Exh.D13, it is established that his license for stamp vendor was cancelled by the Deputy Commissioner on 12.11.1992, as such the sale of purported stamp paper in favour of Mir Dad Khan has not been incorporated in the register. After examining the entire evidence on record, the learned Courts below have come to the just conclusion that Respondent No, 2 Muhammad Asghar was aggrieved of `Tamleek deed' (Exh.D2) executed by Mir Dad Khan (deceased) in favour of Respondent No, 1 and by filing civil suit Exh.D8 on 26.02.1994, he challenged this transaction and thereafter he in connivance with appellants prepared forged agreement to sell and for that purpose he purchased ante dated stamp paper from an unauthorized stamp vendor and became its marginal witness, whereas Mir Dad Khan had died on 28.05.1993, and there was no occasion for Respondent No, 2 and present appellants to obtain 'his thumb mark on agreement to sell (Exh.P1) and thus his forged signature was affixed on it.
7. Respondent No, 1 has placed on record registered lease deed dated 07.05.1980 Mark-A and two other unregistered deeds Mark-B and Mark-C to establish that Mir Dad Khan being illiterate used to affix thumb mark only. As admitted by PW-2, property dealer, Mir Dad Khan also sold away his other landed property but the appellants have failed to place on record any other deed on which he has affixed his signatures instead of thumb mark. Even on registered `Tamleek Deed' Exh.D2 dated 15.12.1992 (executed just one month after Exh.P1) in favour of Respondent No, 1, Mir Dad Khan has affixed his thumb mark. Thus to my view, the learned Courts below are fully justified to disbelieve execution of agreement to sell (Exh,P1), payment of earnest money to Mir Dad Khan and delivery of possession under said agreement to sell. Learned counsel for the appellants could not satisfy this Court on the point that when out of sale consideration Rs,322,000/-, a major amount of Rs,265,000/- has been paid to the vendor, why the period of more than three years was fixed for an completion of agreement to sell. Such long and unusual period for completion of agreement to sell also establishes that conclusion drawn by the learned Courts below that after knowledge of execution of `tamleek deed' in favour of Respondent No 1, Respondent No, 2 with the connivance of appellants has prepared a forged agreement to sell, is correct one.
The appellants have failed to establish valid execution of agreement to sell, payment of earnest money to Mir Dad Khan. Even otherwise in view of peculiar facts and circumstances of the case, the appellants are not entitled to the discretionary relief under Section 12 of the Specific Relief Act, 1877.
Reliance is placed on 'Muhammad Abdur Rehman Qureshi Versus Sagheer Ahmad' (2017 SCMR 1696), Liaqat Ali Khan and others Versus Falak Sher and others' (PLD 2014 Supreme Court 506) and 'Abdul Aziz and another Versus Abdul Rehman and others' (1994 SCMR 111).
8. Learned counsel for the appellants has vigorously maintained that Respondent No, 1. has made unauthorized amendments in amended written statement and taken the plea that present appellants have moved application for correction of entries in "Khasra Girdawri" and during that proceedings Abdul Rasheed and Ghulam Farid appellants have made statements before revenue officer that they had entered into an oral agreement to sell with Respondent No, 1 and some earnest money was also paid to him and subsequently the forged agreement to sell Exh.P1 was prepared by the appellants as a result of their connivance with Respondent No,
2. As such oral as well as documentary evidence led in support of such plea is inadmissible. In support of this contention reliance has been placed on `Muhammad Boota through legal heirs and 6 others Versus Abdul Razak' (2005 YLR 211.9 Lahore) and 'Jane Margrat William Versus Abdul Hamid Mian'
(2003 MLD 1430 Lahore). Whereas learned counsel for Respondent No, 1 has referred the case law reported as `Mst. Hajiani Hajrabai Versus Afzal Ali and 2 others' (1992 MLD 453 Karachi) and 'Haft SuZeman Ali Muhammad Versus Ahmad Ali and other' (PLD 1982 Karachi 111) to maintain that respondent has made amendment in written statement in response to the amendment in the plaint but he has not raised any plea in consistent to his case already pleaded in the written statement. The case law referred by respondent's side is fully applicable to the facts of the case.
Now it is well settled that the Court has vast discretionary powers to allow amendment in pleadings and such discretion should be exercised liberally to promote the ends of justice and to determine the real controversy in between contesting parties. While submitting amended written statement, besides replying to the amended paras of plaint, the defendant can take pleas which are available to him, under the law. But it will not authorize defendant to resile from the admission made in the earlier written statement or add a new or inconsistent case, as already pleaded in earlier written statement. Admission made by a party to the lis in the pleading cannot be revoked without express permission of the Court.
9. No doubt, amendments in para Nos, 2, 5 to 7 of preliminary objections in amended written statement dated 15.1.2.2000 were unauthorized but by those amendments, Respondent No, 1 has not resiled from any earlier plea taken in written statement. Even otherwise if the oral as well as documentary evidence regarding litigation between the parties before revenue Court is discarded, even then the appellants have failed to establish valid execution of agreement to sell.
10. The appellants have failed to point out that impugned judgments are contrary to law or that the learned Courts below have failed to determine some material issue of law or there is substantial error or defect in the procedure provided by, C.P.C..
11. In view of above discussion, this Regular Second Appeal being devoid of merits stands dismissed with costs.