This Regular Second Appeal assails judgment and decree dated 21.02.2012 by learned Appellate Court, whereby appeal of the respondents was allowed, judgment and decree of the learned trial court of 13.10.2010 was reversed / set-aside and suit of the appellant for specific performance of agreement to sell was dismissed.
2. Briefly the facts, necessary for decision of instant appeal, are that appellant brought an action, on 22.05.2017, seeking performance of agreement to sell dated 31.07.2006, regarding land measuring 39 Kanals & 18 Marlas, claimed to be sold by deceased Karim Bakhsh, against consideration of Rs.667,500/-, out of which Rs.50,000/- was claimed to have paid as earnest money and balance amount of Rs.617,500/- was payable by 15.10.2006.
Appellant claimed delivery of possession by virtue of the agreement. Respo ndents filed contesting written statement, wherein transaction of sale, execution of the agreement and receipt of earnest money was categorically denied, and it was alleged that possession was delivered in lieu of transaction of exchange. Issues were framed and parties led their evidence respectively . Upon conclusion of the trial, learned trial court decreed the suit, by strongly placing reliance on affidavit, allegedly executed by deceased Karim Baksh - respondent No.1 - to support application for grant of bail of the appella nt, wherein the execution of agreement and receipt of consideration was admitted. Learned appellate court reversed the findings, while holding that execution of agreement to sell was not proved accordingly and no support could be claimed from the alleged af fidavit. Hence, this second appeal.
3. Learned counsel for the appellant submits that execution of agreement was proved through producing the marginal witnesses (PW-2 & PW-3), stamp vendor (PW-4) and scribe of the agreement (PW-5). Adds that agreement and payment of consideration was otherwise admitted / acknowledged by the deceased Karim Baksh through the affidavit, which formed part of judicial documents, exhibited along documents as Ex. P-8. Further submits that learned appellate court erred in law while dismissing the suit, despite availability of overwhelming evidence and evident failure of the deceased Karim Baksh to prove alleged transaction of exchange, as alleged in the written statement.
4. Learned counsel for the respondents supports the judgment dated 21.02.2012, who emphasized that discrepancies in the testimony of appellant' s witness were correctly read and appreciated by the appellate court, and reliance on Affidavit by the trial Court was erroneous.
5. Arguments heard. Record perused.
6. At the outset, learned counsel for the appellant was asked to read the cross examination conducted on deceased Karim Baksh, and show that whether said witness (DW-1) was confront ed with alleged previous writing in terms affidavit - forming part of the documents exhibited as Ex.P-8 - and further with the alleged signatures of Karim Baksh - DW-1, who evasively responded that affidavit was admitted, wherein clearly execution of agreement and receipt of consideration were acknowledged. I am afraid the submissions are misconceived. This omission, to confront respondent No.1, with contents of affidavit and alleged signatures thereup on is fatal in terms of Article 140 of Qanoon-e-Shahadat Order 1984. Guidance is solicited from the ratio of the decision in the case of "Syed MUHAMMAD SULTAN v. KABIR-UD-DIN and others" 1997 CLC 1580 , relevant portion whereof is reproduced hereunder as: "According to Article 140 of the Qanoon-e-Shahadat Order , 1984 which corresponds to Article 145 of the Evidence Act, 1872, such confrontation is mandato ry. In Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730 ), it was ruled that:- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions.
Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party . Where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent "
The Supreme Court in the cited case had approved the judgment of this Court in the case of Firm Malik Des Raj Faqir Chand v . Firm Piara Lal Aya Ram and others (AIR 1946 Lah. 65) in which it was held that:- Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in' the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions.
Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party ."
7. The conundrum encompassing actual consideration price remained unresolved. The consideration price mentioned in the plaint was Rs.667,500/- with balance payable of Rs.617,500/-, after adjusting earnest money of Rs.50,000/-. Agreement to sell, in main body , showed consideration of Rs.628 ,700/- and balance payable of Rs.578,700/-, which price was affirmed by appellant' s witnesses during cross examination. On the top left corner of the agreement (Ex.P-1) consideration price, per acre, was mentioned, dividing land into two categories, i.e. price of 21 Kanals & 18 Marlas of land was fixed @ Rs.100,000/- per acre and price of 18 Kanals was fixed @ Rs.175,000/- per acre. This note contained additional signatures of Karim Baksh; whose alleged signatures / thumbmark also appeared on the sideli nes. These signatures were not shown to him or confronted, despite persistent denial qua the execution of the agreement to sell. The consideration price, suggested to respondent No.1 during cross examination, was Rs.628,700/- and not the one pleaded in the plaint. This uncertainty regarding, agreed consideration price, remained an unresolved enigma. No explanation was mentioned in the plaint nor any application filed to seek amendment therein. There is no cavil to the principle that when the contents of the plaint and evidence led do not support each other , evidence beyond the pleadings was irrelevant and ineffective. The testimony of PW-3 - one of the marginal witness - was damaging to the case of the petitioners. PW-3 alleged that stamp paper was purchased by the appellant - Mehr Ali - which statement showed conflict with the statement of PW-4 - stamp vendor , who alleged that Karim Baksh came to purchase it and affixed his thumbmark. Even petitioner 's statement that Karim Bakhsh purchased the Stamp paper stood contro verted in terms of statement of (PW-3). Stamp vendor has not produced the Register of Stamp vendor , and no effort made to procure the official record, if said Register was surrendered with the of fice of DCO - as alleged by PW -4.
8. In these circumstances, appellant failed to prove the execution of the agreement to sell in accordance with the mandate of Article 78 of the Qanoon-e-Shahadat Order 1984 and no reliance can be placed on alleged affidavit - without confronting it to Karim Baksh - to allege any admission in terms of Article 81 of Qanoon-e-Shahadat Order 1984. Appellant cannot bank upon alleged deficiencies qua the testimony of the respondents or its failure to prove transaction of exchange, when appellant failed to prove execution of agreeme nt to sell. Even otherwise, the affidavit - forming part of documents exhibited as EX-P8 - was exhibited on the statement of learned counsel - who was not under oath - and even otherwise said document was brought on record on 28.09.2010 - after the closure of evidence of Karim Baksh (DW-1). When the evidence of DW-1 was recorded, said affidavit was not on record. In these circumstances, I do not find any reason to interfere in the judgment dated 21.02.2012 of the appellate court and findings recorded therein, which are in accordance with the law and reflect true and correct reading of the record / evidence. Judgment of learned trial Court dated 13.10.2010 was rightly set-aside.
9. In view of the above, instant second appeal fails . No order as to costs.