MUJAHID MUSTAQEEM AHMED, J.---The factual matrix of the instant civil, litigation, culminating in this civil revision and necessary for its fair adjudication is that predecessor in interest of present petitioners Yousaf Masih was allottee of "Dakheelkar Rights" under section 8 of Act No,XVI of year 1887 in respect of suit property measuring 12 Kanal 2 Marla situated in Chak No,424/JB, Tehsil Gojra, District Toba Tak-Singh. Vide registered agreement to sell (Exh.P1) dated 04.02.1992 he agreed to sell suit property in favour of respondent against consideration of Rs,1,05,000/- and received Rs,30,000/- as earnest money. On the same date he got executed registered general power of attorney deed (Exh.P2) in favour of respondent in respect of suit property. Yousaf Masih died in September, 2011. In his life time, on 01.07.2010 initially respondent filed suit for permanent injunction regarding suit property, which was dismissed for want of evidence vide judgment and decree dated 05.01.2012. During pendency of that suit on 29.10.2011, the respondent filed a suit for specific performance of contract on the basis of aforementioned agreement to sell, wherein she claimed that out of total sale price Rs,1,05,000/- she has paid Rs,95,000/- to predecessor in interest of present petitioners and remaining amount of Rs,10,000/- is to be paid at the time of registration of sale deed. She further pleaded that, possession of suit property under the agreement to sell (Exh.P1) stood delivered to her.
2. The petitioners contested the suit and denied the execution of agreement to sell by their predecessor in interest in favour of respondent. Her possession over Haleem Aslam and PW- 5/Walter Khokhar, marginal witnesses of this receipt have proved its valid execution and payment of Rs,58,000/- in their presence. The scribe of these deeds M.A. Kaleem Chaudhary ExLumberdar has also died. The learned Additional District Judge for cogent reasons has believed the statements of PW-4 and PW-5 regarding payment of Rs,58,000/- to predecessor in interest of present petitioners and valid execution of receipt Exh.P3. I see no reason whatsoever to disbelieve their testimony. PW-5/Mukhtar Ahmad revenue Patwari has also proved possession of respondent over the suit property. In its the suit property as tenant in cash (Thaika) has been conceded. During pendency of second suit, the proprietary rights of the suit property were granted to the present petitioners. The learned Civil Judge, Gojra, after recording oral as well as documentary evidence of the parties, vide judgment and decree dated 27.05.2015, dismissed the suit of the respondent mainly on the grounds that agreement to sell stood not proved and the suit was barred by time.
The respondent filed an appeal before learned Additional District Judge, Gojra, who vide judgment and decree dated 22.04.2016 allowed the same and decreed the suit of respondent for specific performance of contract. The learned Additional District Judge also observed that during pendency of the appeal, the petitioners have dispossessed respondent from the suit property, so he also passed order for restoration of possession in favour of respondent. Therefore, the petitioners by filing this civil revision have assailed the judgment and decree passed by learned Additional District Judge, Gojra mainly on the grounds of against facts, law, result of misreading and non-reading of evidence.
3. Arguments heard. Record perused.
4. Exh.P1, agreement to sell was executed in between respondent and predecessor in interest of present petitioners-Yousaf Masih on 04.02.1992 in respect of suit property for Rs,1,05,000/- and on the same date Yousaf Masih executed registered general power of attorney deed (Exh.P2) in favour of respondent. The predecessor in interest of petitioners in his life time, even after filing suit for permanent injunction by the respondent has not challenged these registered documents in favour of respondent and thus impliedly admitted their exlcution, validity and authenticity. The respondent appearing as PW-1 has also proved execution of these documents. It is admitted fact that both marginal witnesses of these documents Din Masih and Deward Qazi have died and PW-2 Samual Ismail and PW-3 Jang Bahadur, who are their son and cousin have identified their signatures on these deeds. The contention of learned counsel for the petitioners is that no permission was obtained by respondent to lead secondary evidence to prove execution of these deeds and as such testimony of PW-2 and PW-3 is liable to be discarded. There is no denial that both the marginal witnesses of Exh.P1 and Exh.P2 have died, so under Article 80 of Qanun-e-Shahadat Order 1984, respondent by producing PW-2 and PW-3 has proved valid execution of these documents.
Under Article 80 of the Order ibid, it was not obligatory for the respondent to obtain permission for leading secondary evidence, as such this contention of learned counsel for the petitioners has rightly been repelled by the learned Additional District Judge, while believing valid execution of these deeds.
5. Vide receipt Exh.P3 dated 30.04.1992 respondent has paid Rs,58,000/- to Yousaf Masih. PW- 4/Haleem Aslam and PW-5/Walter Khokhar marginal witnesses of this receipt have proved its valid execution and payment of Rs,58,000/- in their presence. The scribe of these deeds M.A. Kaleem Chaudhary Ex-Lumberdar has also died. The learned Additional District Judge for cogent reasons has believed the statements of PW-4 and PW-5 regarding payment of Rs, 58,000/- to predecessor in interest of present petitioners and valid execution of receipt Exh. P3. I see no reason whatsoever to disbelieve their testimony. PW-5/ Mukhtar Ahmad revenue Patwari has also proved possession of respondent over the suit property. In its rebuttal DW-1/Rafiqan Bibi, widow of deceased deposed that proprietary rights of suit property stood granted in favour of petitioners after death of Yousaf Masih. Yousaf Masih has leased out suit property in year 1992 in favour of respondent, neither he agreed to sell suit property in her favour nor received any earnest money from her. The agreement to sell is forged one. During cross-examination she conceded that Yousaf Masih has affixed his signature Exh.P1/1 on Exh.P1. She further claimed that she has no knowledge how much amount or lease money was received by her husband. She conceded that since 1992 respondent is receiving produce of land and not giving lease money to any one. DW-2 Samual has also deposed in the same fashion. In the last lines of his cross-examination he deposed that respondent was in possession of suit property as owner since 1992 but on intervention of counsel for the petitioners, he tried to take u-turn by deposing that respondent was just a lessee. Thus to my view even from the admission of DW-1 and DW-2 valid execution of agreement to sell (Exh.P1) and general power of attorney deed (Exh. P2) stood proved. The respondent is in possession of suit property since the date of execution of agreement to sell. As such learned Additional District Judge has rightly concluded that respondent by producing cogent oral as well as documentary evidence has succeeded to establish execution of agreement to sell (Exh.P1). Vide Exh.P1 and Exh . P3 (receipt), the respondent has paid Rs,30,000/- and Rs,58,000/- total Rs,86,000/- to Yousaf Masih. Learned counsel for the petitioners has rightly pointed out that there is no evidence that on 14.12.1991, even prior to execution of agreement to sell Rs,7000/- were paid to Yousaf Masih. No such amount has been mentioned in Exh.P1. The PW-1/ B respondent has admitted that a sum of Rs,10,000/-, balance sale consideration is due against her but learned Additional District Judge, Gojra while discussing the claim of respondent has ignored this admission of respondent and has decreed the suit, without any order for payment of balance amount i,e, Rs,17,000/-.
6. Learned counsel for the petitioners has further maintained that agreement to sell (Exh.P1) does not bear signature of respondent and as such this unilateral agreement is not enforceable. Case law "Mst. Gulshan Hamid v. Kh. Abdul Rehman" 2010 SCM R 334 and "Taljb Hussain v. Muhamad Nawaz" 2016 CLC Note 30 Lahore has been referred to support this contention. Learned Additional District Judge has rightly observed that on back of this deed, respondent has affixed her signatures. Moreover, in view of latest case law reported as "Muhammad Sattar and others v. Tariq Javaid and others" 2017 SCM R 98 Supreme Court of Pakistan such unilateral agreement is also enforceable. In this celebrated precedent it has been laid down that agreement to sell not signed by one of the parties if proved to be executed and acted upon would be a. valid agreement to sell/contract that was enforceable under law. As such this contention of learned counsel for the petitioners is also discarded.
7.Learned counsel for the petitioners has further maintained that as per agreement to sell (Exh.P1), the mutation of sale/registered sale deed was to be entered/executed till 04.02.1993 but the respondent has filed suit for specific performance of contract on 29.10.2011, so it is badly time barred. Learned counsel for the petitioners has frankly conceded that during pendency of the suit, the proprietary rights have been granted to the petitioners regarding suit property vide mutation No, 3793 attested pm 31.03.2014 and as such the contention that suit is time time barred is without any legal force. Of course after issuance of proprietary rights, the respondent could come to the Court for enforcement of agreement Exh.P 1.
8. Ch. Riaz Aslam, Advocate learned counsel for the petitioners has further maintained that earlier suit of respondent for permanent injunction stood dismissed for want of evidence on 05.01.2012 by learned Civil judge Gojra. As such the instant civil revision subsequent suit for specific performance of contract is barred under section 11 of C.P.C. and Order II, Rule 2, C.P.C. He has referred case law "Allah Dad v. Mehmood Shah" 1990 CLC 33 Peshawar to support his case. Suffice to observe that as per settled law, the only remedy available to respondent was to file a suit for specific performance of contract and as such her suit for permanent injunction dismissed on 05.01.2012 was legally not competent. So, early decision in that suit will not operate as res judicata.
9. For what has been discussed above, from the oral as well as documentary evidence of respondent, valid execution of registered agreement to sell (Exh.P1), registered general power of attorney deed (Exh.P2), receipt (Exh.P3) and delivery of possession in favour of respondent by Yousaf Masih-deceased is established. Respondent is in possession of suit property since year 1992 as owner and has not given its produce in cash or in kind to predecessor in interest of present petitioners or petitioners. Yousaf Masih has not filed any suit for ejectment or for produce of land against respondent. The learned Additional District Judge has properly appreciated the oral as well as documentary evidence and has rightly decreed the suit of respondent. The impugned judgment and decree does not suffer for misreading and non-reading of evidence except that no order has been passed for payment of balance amount. In precedent reported as "Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others" 1999 CLC 312 Karachi it has been laid down that in case of conflict in judgments of trial court and appellate court decision of first appellate court was to be preferred in revisional jurisdiction.
10. As such the instant civil revision is partly allowed. While modifying the impugned judgment and decree passed by learned Additional District Judge, Gojra the suit of the respondent stands decreed conditionally on payment of balance amount Rs,17,000/- (Rupees seventeen thousand) in favour of present petitioners in treasury within thirty days from today, failing which the suit of respondent shall stand dismissed.
The proper and timely assistance provided by learned counsel for the parties is appreciated. The parties are left to bear their own costs.