SHAKEEL AHMAD, J. This is defendants' revision petition, which arises out of a suit for specific performance of a contract of sale of land measuring 47- Kanals (fully described in the headnote of the plaint), entered into with the plaintiff by the defendants by an agreement dated 20th January, 2007, binding themselves to transfer the suit property to the plaintiff through mutation, and receiving of the remaining sale consideration after execution of , mutation in favour of the respondent/plaintiff before the competent officer. It was pleaded in the plaint that in the agreement for sale with the mutual consent of the parties, price of the suit land was fixed as Rs.1,50,000/- (one lac fifty thousand) per Kanal, and out of total sale consideration, Rs .20 ,00 , 000/- (twenty lacs) was paid to the defendants as an earnest money. It was averred that pursuant to the said agreement, the possession of the suit property was given to the plaintiff and that he is willing and ready to perform his part of obligation by paying the remaining sale consideration, but the .petitioners/defendants refused to act upon the agreement, which necessitated to file the suit.
As a consequential, the plaintiff sought issuance of permanent injunction restraining the petitioners/defendants from making interference in the suit property or alienating it in the name of anyone, perpetually.
2. After service of summons, -the petitioners / defendants put their appearance before the learned trial Court and contested the suit by filing written statement raising therein many legal and factual objections. From divergent pleadings, of the parties, the learned trial Court framed the following issues and directed them to produce their respective evidence.
1. Whether plaintiff has got a cause of action?
2. Whether the suit is within time?
3. Whether the suit is properly valued for the purpose of court fee and jurisdiction?
4. Whether plaintiff is estopped to sue?
5. Whether the impugned agreement No.1399 dated 20.01.07 was executed between the parties?
6. Whether defendants received partial sale amount as per agreement?
7. Whether the suit is based on mala fide?
8. Whether plaintiff is entitled to the decree as prayed for?
9. Relief.
3. In support of his contention, the respondent/plaintiff produced Azam Khan, Halqa Patwari as PW- 1, who produced fard jamabandi for the year 2003/2004; zere kar Ex.PW-1/1 and goshwar-e- malkiyat of the defendants, which was prepared on the basis of Fard Jamabandi for the year 2003/2004 as Ex.PW-1/2, reflecting that petitioners/ defendants are owners of the land measuring 44-Kanals 15-Marlas 05-Sarsai. Stamp Vendor namely Syed Peer Shah, was produced as PW-2. He tendered copy of agreement to sell in his statement as Ex.PW-2/1. Anwar Muhammad, Record Keeper of DOR Office was examined as PW-3. He produced relevant page of stamp register as Ex.PW-3/1, showing thumb impression of parties thereon. Niaz Ahmad was produced as PW-4, who is witness of the payment of earnest money to the defendants and before whom the argument was executed. Plaintiff himself appeared as PW-5 in support of averment of plaint, the marginal witnesses of the agreement to sell were produced as PW-6 and PW7 respectively, who supported the stance of the respondent/plaintiff and closed his evidence. In rebuttal, the defendants produced Syed Shahriyar Khan Bacha, Manager, UBL, who produced cheque No.30344134 Ex.DW-1/1, Bank Statement of Muhammad Ghaffar as Ex.DW-1/2, Account Opening Form as Ex . DW1/3 Tariq Khan, Branch Operation Manager, UBL, appeared as PW-2, who produced cheque No.30344134 as Ex.DW-2/1. Defendant Muhammad Ghaffar himself appeared as DW-3 and denied execution of agreement to sell with the respondent/plaintiff. Wajid Ali Zaman (DW-4), Faqeer Rehman (DW-5) was produced, as supportive evidence and closed their evidence.
4. The Court of first instance decreed the suit in favour of the respondent/defendant vide judgment dated 19.09.2011. The petitioners/ defendants appealed from that decree. The learned appeal Court dismissed the appeal of the defendants and maintained the judgment of the learned trial Court vide judgment and decree dated 25.09.418. Being aggrieved by the concurrent "findings of the learned lower fora, the petitioners/defendants have filed the instant revision petition.
5. It was vehemently argued by the learned counsel for the petitioners that the findings of the learned lower fora regarding admissibility of agreement to sell are erroneous. He next argued that the claim of the respondent/plaintiff on the basis of agreement to sell is fraudulent and it has not been executed between the parties and went on to say that actually the agreement was executed. with one Aman Sher son of Shah Nazar and in pursuance thereof, he issued a cheque of Rs.20,00,000/- (twenty lacs) in their favour, which was bounced on presentation to the bank concerned for want of money, due to which, the contract executed between them, was annulled.
He further argued that no agreement was ever executed between the parties. He further argued that the learned trial Court has failed to frame the issue on the fraud as alleged by his clients. He lastly argued that the alleged agreement is fraudulent and not worth consideration and prayed for setting aside the impugned judgments and decrees passed in favour of the plaintiff.
6. Conversely, the learned counsel appearing on behalf of the plaintiff/ respondent jointly contended that oral assertion cannot belie the documentary evidence produced by their clients.
They next contended that the respondent has proved execution of agreement to sell by producing scribe of the agreement, stamp vendor, its marginal witnesses and record keeper of DOR office, who fully supported the stance of the plaintiff. They added that the agreement to sell carries thumb impression and CNIC of the petitioners/defendants and it also reflects payment of earnest money to them and went on to say that mere denial simpliciter would be of no help to the petitioners/ defendants. They lastly contended that the defendants have miserably failed to prove any fraud or misrepresentation as pleaded by the learned counsel for the petitioners/ defendants in execution of agreement to sell and prayed for dismissal of the revision petition.
7. I have given my anxious thought to the contentions of the learned counsel for the parties made at the bar and examined the evidence available on record and also gone through the judgment(s) of the learned trial Court as well as appeal Court with their able assistance.
8. It appears from the record that the plaintiff/respondent in his plaint has based his claim for specific performance of contract on the agreement to sell dated 20th January, 2007 Ex.PW-2/1, pleaded to have been executed between the parties. The recital of the said agreement reflects that the defendants agreed to sell, the land measuring 47-Kanals to the respondent/plaintiff @ Rs.150000/- (one lac fifty thousand) per kanal, and out of total sale consideration Rs.20,00,0001-., (twenty lacs) was paid to the petitioners/ defendants as earnest money in presence-of its marginal witnesses namely Ghaff Khan (PW-6) and Said Rehman (PW-7) and remaining sale consideration was agreed to be paid after transfer of the suit property in the name of the respondent/ plaintiff through mutation. The said document fully describes the khasra number and boundaries of the suit property. The goskwara-e-malkiyat Ex.PW-1/2 reflects that the petitioners/ defendants are the owners of the suit property. The said agreement also carries the thumb impression and CNIC number of the parties. It is by now settled that where there is recital of receipt of consideration in a document, the onus lies on the party who denies it. Admittedly, the earnest money was received by the petitioners/defendants as per contents of agreement to sell Ex.PW-2/1.
Under these circumstances, in my opinion the burden lies upon him to prove that he neither received the sale consideration nor document was executed with them. It is reflected from recital of the agreement to sell that it was witnessed and by Ghaffar Khan and Said Rehman (PW-6 and PW-7). It also carries thumb impression and CNIC number of the petitioners/ defendants. More-so, the plaintiff, in support of his stance also produced Niaz Ahmad (PW-4), scriber of the agreement to sell and record keeper who produced stamp register and exhibited its relevant page as Ex..PW- 3/1 showing purchase of two pieces of stamp papers for agreement to sell between the parties having thumb impression/signatures of the parties on it. In-my view, the respondent/plaintiff has proved execution of agreement to sell and receipt-of earnest money to defendants by producing its-attesting witnesses, scriber acid record keeper showing that said stamp Papers were issued in the name of the parties for that purpose, which is sufficient-compliance of Article-79 of the Qanune/Shahadat" order 1984 for the purpose of proving the said document. In this behalf reference may be made to the case reported as "Muhammad Sher v. Maula Bakhsh" (2014 CLC 1745), wherein it was ruled that the word expression "execution" means signing of document as a consenting party where document is required by law to be attested, execution designates whole exercise including both, signature and attestation by scribing witnesses, as was done in the present case.
9. Corning to the contention of the learned counsel for the petitioners that actually agreement to sell was executed with one Aman Sher and not with the plaintiff of the instant case and to this effect, the said Aman Sher had issued cheque No.30344134 on 05.07.2007 Ex.DW-1/1 in favour of Ghaffar Khan (defendant). This argument of the learned counsel for the petitioners has no force, therefore, the same is repelled firstly, on the ground that the said Aman Sher was neither produced by the petitioners in support of their stance nor any effort was made by them to examine him as Court witness nor any legal action was taken against him, due to non-encashment of cheque, for want of money in his account even otherwise, it does not reflect that the said cheque was issued to him by Aman Sher for payment of price of the land in dispute.
10. The learned counsel for the petitioners laid much stress on the point that the learned, trial Court has failed to frame proper issue on the plea that the alleged agreement is the result of fraud committed by the plaintiffs.
11. I noted that from divergent pleadings of the parties, issues were framed, including issues Nos. 5, 6, 7 and 8, which are reproduced as follows:-
5. Whether the impugned agreement No.1399 dated 20.01.07 was executed between the parties?
6. Whether defects received partial sale amount as per agreement?
7. Whether the suit is based on mala fide?
8. Whether plaintiff is entitled to the decree as prayed for.
12. In my view, the learned trial court has framed the necessary issues regarding merits of the case, which has been answered in detail as discussed in the preceding paras. When the said issues are examined in the context of pleading of the parties, there can be no manner of doubt, as to the real matter in controversy and the facts, which were required to be proved by them. It is observed that throughout the trial, the parties were fully cognizant of real matter in controversy and facts, which were required to be proved by them in 'support of their respective stances and led evidence accordingly. Under these circumstances, the contention of the learned counsel for the petitioners regarding non-framing of a particular issue qua fraud as pleaded by him, is of no significance, particularly, when during the trial neither effort was made by the defendants for framing of further issue nor any plea in this regard was urged before the learned appeal Court by making an application in this regard looses all significance, thus such contention of the learned counsel for the petitioners cannot be entertained at this belated stage. In this context reliance can be placed on the judgments reported as "Meher Din (represented by his legal. heirs v. Dr. Bashir Ahmad Khan and 2 others" (1985 SCMR 1) and "Muhammad Ibrahim (deceased) through LRs and another v. Taza Gul and others" (2020 SCMR 2033). Even otherwise, the contention of the learned counsel for the petitioners, due to lack of evidence, is not tenable.
13. The evidence produced by the petitioners/defendants did not inspire confidence and was contrary to the natural conduct in such a situation.
14. During arguments, learned counsel for the petitioners pointed out that no effort was made in the learned trial Court by the respondent to deposit the remaining sale consideration, therefore, the suit was liable to be dismissed on this score alone. This argument of the learned counsel for the petitioners equally has no force, firstly, that the petitioners/ defendants have denied execution of agreement to sell between the parties, and secondly, that a claimant seeking specific performance of contract is essentially required to demonstrate that he is and was always ready and willing to perform his part of obligation to pay the remaining sale consideration. If balance consideration is not offered or paid earlier, best time to demonstrate such "readiness and willingness to perform" is offering remaining sale consideration at the time of institution of suit for specific performance of contract as set out in para No.3 of the plaint of the instant case. I observe that in the instant case, the contract/agreement to sell contains reciprocal promise that one of them cannot be performed or that its performance cannot be claimed till the other has been performed. Plain reading of the agreement to sell depicts that obligation to pay the remaining/ balance sale consideration was dependent and would occur on the transfer of the suit property through mutation on the part of the petitioners, which was not performed till filing of the suit due to their denial of execution of agreement to sell with the respondent/ plaintiff.
15. Last but not least, it is by now settled that the scope of revision is narrow and requires the High Court to examine whether the Courts below have failed to exercise jurisdiction vested in them or have acted in exercise of jurisdiction illegally or without material irregularities and have misread the evidence brought on record by the parties, otherwise not.
16. In my opinion the judgments of the learned Courts below are based on proper appreciation of evidence on record and no misreading or non-reading of evidence available on record could be proved calling for interference. The judgments of the learned lower fora in my view, is unexceptional.
17. I, accordingly dismiss this revision petition, with no order as to costs. However, the respondent/plaintiff is directed to deposit the remaining sale consideration before the learned Executing Court as and when execution petition is filed.